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Lemarbe v. Dow Chemical Co.





APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. DURHAM, Judge, presiding.


This is a wrongful death action based on strict tort liability brought by plaintiff, Carolyn Sue LeMarbe, administrator of the estate of her deceased husband, James G. LeMarbe, against defendants, Dow Chemical Company (Dow) and Thompson-Hayward Chemical Company (Thompson-Hayward). A jury found for defendants and judgment was entered for them on the verdict. Plaintiff appeals, presenting two issues: (1) whether questions asked of expert witnesses unreasonably called decedent's conduct into question, and (2) whether the trial court erred in not giving to the jury certain of plaintiff's instructions.

Dow manufactured a chemical with the trademark Chlorothene VG. This chemical was primarily used as a degreaser, cleaning grease off metal. It was distributed by Thompson-Hayward to industrial users. Deceased's employer, the General Electric Company, purchased this chemical for use in its plant in Chicago Heights.

In her amended complaint, plaintiff alleged that the chemical was defective and unreasonably dangerous because it did not contain adequate and accurate warnings of the danger in its use and of the toxic properties which could cause injury or death.

Chlorothene VG is a chemical solvent. It is a highly volatile product; it evaporates easily and creates fumes which are heavier than air. When breathed, these fumes can cause dizziness and lightheadedness (Chlorothene VG had once been used as an anesthetic agent), unconsciousness and, after a period of time, a comatose condition and death. The fumes could also cause the heartbeat to be irregular, increasing the risk of death from atrial fibrillation.

In the industrial setting, Chlorothene VG was generally used in vapor degreasing operations, requiring the application of heat to vaporize the solvent. Metal passing through this vapor would be cleaned of grease and other foreign particles. Metal immersed in the solvent would also be cleaned. This process involved no heat.

General Electric used both methods in its metal-plating operations in Chicago Heights. This involved a large vapor degreasing machine, utilizing the hot process, and a "dip tank." In using the vapor degreaser, metals were passed through the machine on a conveyor belt. The dip tank was stationed next to the larger vapor degreaser. Pieces too large or exceptionally dirty were immersed in this tank to clean them. A hood covered the dip tank when it was not in use.

Deceased met his death when he was involved in the cleaning of the dip tank. He was found at the bottom of the drained tank in an unconscious state. Efforts to revive him with oxygen were futile. There was no detectable odor of the solvent in the tank; however, an odor was detectable in his regular work clothes. It was evident that the deceased had scraped some sludge from the wall of the dip tank. This sludge contained concentrated vapors with a high level of toxicity.

Extensive evidence was presented by both parties describing the chemical properties of Chlorothene VG, its toxicity and its use in the industrial setting. Several witnesses who worked for General Electric at the time of the incident testified as to the two degreasing processes, how they were operated and cleaned and how they also differed in operation. These witnesses also testified to the level of their knowledge of the toxic effects of the fumes released by the use and cleaning of the degreasing machines. Several expert witnesses testified about the adequacy of the label found on the two degreasing machines and whether, if the instructions were followed, decedent's death could have been prevented.

In pertinent part, the label posted on the two degreasing machines provided:

"This degreaser contains Chlorothene VG solvent. Chlorothene VG is the world's safest chlorinated vapor degreaser solvent. However, the following precautions must be followed:

One. Safety precautions. Use with adequate ventilation. Avoid prolonged or repeated breathing of vapors or contact with the skin. Do not take internally. Do not smoke around degreaser or while handling any chlorinated solvent. Do not enter the degreaser, pit or a storage tank or clean out a degreaser without proper ventilation or self-contained or air supplied breathing apparatus. Gas masks are not adequate. Use a rescue harness with a life line. A second man must be present and observing at all times. Use protective equipment and appropriate protective garments. Protective garments should be discarded at first sign of solvent caused deterioration.

Train all operators in proper handling of Chlorothene VG.

Note: Keep away from flames and other ignition sources when used where vapors may be concentrated."

The label also contained two sections of instructions relating to the start-up and maintenance of a degreasing machine. These instructions are largely related to the vapor degreaser, rather than the dip tank. A fourth section set out instructions for a "clean-out" of a degreaser. One of these instructions read in part:

"Wear approved respiratory equipment and provide adequate protective clothing and ventilation."

A separate boxed-in section contained this statement:

"Chlorothene VG can be used for the vapor degreasing or cold cleaning of all common industrial metals including bronze, brass, zinc, copper, steel, stainless steel, aluminum, magnesium, nickel, Monel alloy, cadmium, tin, beryllium and titanium."

Plaintiff alleged that the Chlorothene VG was in a defective and unreasonably dangerous state because it did not warn of the dangers involved in its use. It is further alleged that the warning was inadequate because it ...

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