APPEAL from the Circuit Court of St. Clair County; the Hon.
WILLIAM B. STARNES, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Following a seven-week trial, a jury returned verdicts against defendant for $650,000 in compensatory damages and $15,000,000 in punitive damages. The court, finding that the verdict of $15,000,000 punitive damages was "shocking to the conscience," ordered a remittitur of $7,500,000 on the punitive damages award, which plaintiff accepted, and judgment was entered for plaintiff in the amount of $8,150,000. Defendant appeals.
Plaintiff was seriously injured by mostly second-degree burns to his body while he was operating his tractor in May 1975. The burns were caused when he was sprayed with gasoline that had geysered or spurted from the tank of his tractor. The geysering allegedly resulted when pressure built up in the gas tank of the tractor to such an extent that the gas cap was blown off the tank. The defendant had manufactured the tractor, a Farmall model 706, in 1963.
Plaintiff's action against defendant was based upon strict liability in tort for the design and manufacture of a tractor with a faulty gas cap and gas tank assembly that would permit the build-up of pressure in the gas tank when the tank was subjected to heat from operation of the engine. The fuel cap alleged to have been blown off was a triple-baffle cap with three internal chambers, designed to contain liquid fuel. On the top of the fuel cap there was a vent-hole 1/16 inch in diameter which allowed pressure to escape from, rather than build up within, the fuel tank.
Plaintiff's complaint was in two counts. The first alleged a cause of action based upon strict liability in tort, and the second asked for punitive damages based upon defendant's wilful misconduct. The trial of the case encompassed six days of pretrial hearings, 32 days of trial before the jury and six days of post-trial hearings. Throughout, 74 witnesses gave testimony, and a transcript of 4,612 pages was compiled. Basically, plaintiff's experts criticized the design of the model 706 because its fuel tank was placed too close to the engine without sufficient heat-shielding and because the vent-hole in the fuel tank cap was too small. Plaintiff maintained that he had tightened the cap all the way so that the tangs of the cap were against the metal lugs inside the rim of the filler neck. Defendant's position was that it was impossible for a securely fastened triple-baffle cap to be blown off.
On appeal defendant raises several issues. Defendant's first claim is that St. Clair County was an improper place for trial and error was committed by not transferring the case to a county of proper venue. Defendant's next three issues are related. It contends that plaintiff's statement that the fuel cap was securely fastened constituted a judicial admission which precluded him from presenting a theory inconsistent with that statement and precluded jury instructions based upon an alternative theory. Similarly, defendant contends that since plaintiff's statement was a binding judicial admission, and since the experts all agreed that a securely fastened triple-baffle cap could not be blown off, there was insufficient evidence as a matter of law to support plaintiff's claim. Defendant also contends that there was insufficient evidence to present the issue of discovery fraud to the jury. Defendant asserts that error occurred in the admission of evidence concerning other accidents and that this error was compounded by improper closing argument. Defendant's final contentions are that the jury deliberations were tainted by the presence of nonevidentiary materials in the courtroom where the jury was left to deliberate and by the trial court's refusal to answer a question propounded by the jury during deliberation. As a result of these errors, defendant claims, both the compensatory and punitive verdicts were grossly excessive.
Following a lengthy pretrial discovery process, defendant sought a change of venue, claiming both that St. Clair County was the improper venue and that pretrial publicity concerning the settlement of the companion Gauges case made a fair trial impossible. The motion was denied, and the case proceeded to trial with plaintiff calling Seymour Croft, under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60) (hereafter section 60). Croft, an attorney employed by defendant to supervise staff attorneys handling products liability cases, was questioned about experiments he had requested defendant's engineers to perform. He stated that when an experiment is performed at an attorney's direction in anticipation of litigation, information with respect to it is privileged and as a result he had often written to engineers telling them not to discuss or divulge results of experiments. Croft was then examined about interrogatory answers he gave in the Missouri case of Greathouse v. International Harvester. In that case defendant was asked to list all cases of fuel-geysering or blowups known by defendant to have occurred within the past 15 years. Croft stated that such a question would include everything in defendant's manufacturing line from lawnmowers to trucks. Therefore, in accordance with the instructions he had received from local Missouri counsel, he had answered the question by disclosing only all the cases involving tractors in any way similar to the model 424 involved in Greathouse. Croft admitted that in drawing the line between similar and dissimilar tractors he had followed engineering advice.
Plaintiff's next witness was William Borghoff, an engineer with defendant's product integrity group. Borghoff made several testimonial appearances throughout the case. He testified that his job included the investigation of accidents and that he had investigated the accident giving rise to the Greathouse case. He stated that he did not know who had made the decision in that case to limit interrogatory answers to only those cases involving what were determined to be similar tractors, but, he stated, to have done otherwise would have required several years of compilation. Over defendant's continuing objection, Borghoff several times denied that he had made the decision to limit interrogatory answers in Greathouse. However, Borghoff admitted that two cases of alleged geysering were not revealed in the Greathouse case because, even though the fuel caps and vent-holes were identical, the tractors were deemed to be dissimilar. Borghoff was asked why he did not disclose the geysering problems involved in the Greathouse case during his deposition in this case. He replied that he did not consider the model 424 tractor involved in Greathouse to be a "farm" tractor and he believed that he was being questioned only about fires involving farm tractors. During his testimony Borghoff expressed the opinion that he could see no circumstances under which geysering could occur in the normal use of plaintiff's model 706 tractor. Although he expressed that opinion repeatedly throughout the trial, he admitted that in the Gauges case a similar tractor had been involved and in that case he had initially hypothesized that fuel-geysering might have been caused by a build-up of pressure in the fuel tank which could have resulted from blockage of the vent-hole of the fuel cap by the windshield. Borghoff admitted that under special laboratory conditions liquid fuel could be forced out of the filler spout by the effervescence of gaseous vapors such as liquid can be forced by carbon dioxide out of a bottle of soda after it is shaken. Borghoff stated that in the late 1950's design changes were effected which resulted in the placement of a heat deflector shield between the fuel tank and the engine of model 300 tractors so as to eliminate fuel geysering problems. He stated, however, that making comparisons between model 300 and model 706 tractors was like mixing apples and oranges, especially since the model 706 used a sophisticated triple-baffle cap.
In support of his contention that Borghoff's opinion was incorrect and that geysering could occur in the model 706 tractor, plaintiff presented the depositions of four farmers and the testimony of a fifth to establish that they had experienced similar occurrences. All of the tractors involved in those instances were models which undisputed testimony established as having the same basic radiator, engine and fuel tank configuration as that of model 706. Two of the farmers stated that fires in their tractors had been preceded by accumulating fuel tank pressure which blew off securely fastened triple-baffle fuel caps. A third farmer related a similar experience except for the fact that a service station attendant had fastened the fuel cap, so that he could not state of his own knowledge that it had been securely fastened. Two other farmers testified that when they had taken fuel caps off their tractors, gasoline started spurting through the vent-hole as pent-up pressure was relieved, fuel had spurted out and then ignited. Throughout its case plaintiff offered the testimony and depositions of many other users of International Harvester tractors, all of whom related similar geysering incidents. Although many of those incidents involved tractors similar to plaintiff's model 706, some of the incidents for which evidence was presented involved earlier models of tractors which lacked the same basic configuration as plaintiff's model 706.
Plaintiff called as a witness James Buatt, whose court appearance is the source of considerable controversy in this case. Buatt testified that in 1959 his securely fastened fuel cap was blown off a 300 tractor and the resulting fuel geyser ignited and severely burned him. The burns suffered by Mr. Buatt resulted in severe disfigurement and, we gather from verbal descriptions in the record, a hideous appearance. Defense counsel strenuously objected to Buatt's appearance before the jury, stating that his testimony would add little to the testimony of the other farmers and that any value such testimony would add could be presented by way of deposition so that his gross disfigurement would not prejudice and impassion the jury. Defendant's motion was denied, although plaintiff's counsel was instructed not to question Buatt about specific injuries. Defendant's subsequent motion for a mistrial was denied, and no photographic evidence of Buatt's appearance has been placed in the record for appellate review.
Appearances by two other witnesses, Robert Gauges and Buddy Brown, were also objected to by defendant, both because of their physical appearance and because of the large amount of local publicity that had been given to the recent settlement of the Gauges case. Their testimony was largely cumulative to that given by other farmers. Vivid descriptions of the physical appearance of these witnesses, as well as of witness Buatt, were made by plaintiff's attorney in closing argument.
Plaintiff called as witnesses under section 60 several of defendant's engineers, some of whom were long-time employees. Although they generally admitted that pressure build-up problems had caused geysering with earlier models of tractors than the 706, they denied that geysering could occur, even under abnormal conditions, with tractors having a design configuration similar to that of plaintiff's model 706. Despite these denials, engineers employed by defendant also admitted that an internal company report had questioned fuel pressure build-up in a model similar to the 706 and that another similar model had been redesigned in the early 1960's to reduce the exposure of the fuel tank to engine heat.
The engineers disclosed a 1958 report which revealed that effervescence of the fuel would be more likely on warm spring days when a more volatile winter fuel was being used. It was undisputed that a warm spring day was a common factor in all but a few of the geysering fires of which evidence was presented at trial. Although one engineer attempted to clarify the 1958 report by distinguishing a gaseous effervescence from the type of geysering involved here, that same engineer admitted hearing of tests which had shown geysering could occur at "a fairly low pressure." Although none of the engineers would state what that pressure was, they steadfastly and uniformly denied that any amount of pressure could blow off a securely fastened fuel tank cap.
It was admitted that testing is performed at the factory on tractors meeting production specifications, a procedure which is unlikely to occur with older tractors once they are in use in the field. Over an objection that the expert's opinion was not subject to discovery because it was a work product, plaintiff was allowed to introduce the opinion of an expert, retained but not used by defendant in litigation of another case, that a diameter of 1/16 of an inch for the vent-hole in the triple-baffle fuel tank cap of the model 706, and other similar models, was too small to release the pressure to be anticipated. The engineers also disclosed that larger vent-holes and repositioning of the tank had been recommended in internal company reports in order to eliminate the spurting of fuel encountered in models of tractors older than the 706 but that, despite those opinions, the 1/16-inch vent-hole was not enlarged until after the accident involved in this case. A chief engineer of defendant admitted that several years after the event he had discovered that certain tests had been performed which might suggest the possibility of geysering but that these tests had not been shown to him because the attorneys requesting the tests had instructed the engineers performing them not to keep records of the results. However, despite the revelations made, and despite the engineers' refusal to give an estimate of the pressure necessary to create artificially induced geysering, they were still of the opinion that geysering could not occur during field use of a model 706 or similarly designed tractors.
Plaintiff also attempted to show, by calling defendant's supervising attorney and one of its corporate vice-presidents, that defendant had been guilty of fraud in discovery. Although the alleged improprieties involved discovery during the Gauges case, the court allowed evidence of it because of prior agreements and orders which provided that discovery in that case was to be used in both that case and the one at bar. At trial the supervising attorney admitted knowing of at least 15 allegations of geysering; however, he stated he had learned of several of them only recently, long after interrogatory answers had been given in Gauges. He stated that during discovery in the Gauges case he and another employee had searched the files of their Chicago counsel and failed to discover a letter revealing additional cases. Such a letter was later found by plaintiff's counsel when he was invited to search the Chicago law firm's files. The supervising attorney related that it was not until long after the discovery process was completed in the Gauges case that he learned that the Chicago counsel had relevant files in three locations rather than in the one location the supervising attorney had searched. The supervising attorney strongly denied plaintiff's suggestions that the three locations were designed to secrete records from the plaintiff. The attorney did admit learning of the Brown case, another geysering-fire case against defendant, only four days after he had signed a discovery affidavit, but stated that although he had not supplemented the affidavit he had failed to do so only because he knew plaintiff's counsel had learned of the case at virtually the same time as he. Plaintiff's counsel made no attempt to refute that statement. The corporate vice-president, who at trial admitted knowing of at least 10 cases of tractor fuel fires was asked why he had denied knowing of any such fires in earlier depositions. He replied that he had not denied knowing about other fuel fires but had denied only knowing about other cases of alleged geysering.
Plaintiff presented the testimony of two treating physicians by way of evidence depositions. The emergency room physician who initially treated plaintiff stated that approximately 45 to 60 percent of plaintiff's body had been burned. Most of the burns were second-degree burns, but there were small areas of third-degree burns. He related that only first and second-degree burns are painful since third-degree burns destroy the pain-sensing fibers. Plaintiff had required pain medication every four hours during early treatment, and he had also been treated for smoke inhalation and possible respiratory burns. Plaintiff's family doctor testified that in the year following the injury plaintiff was routinely treated for arthritis and respiratory infection without incident. About 16 months after sustaining the burns plaintiff had a stroke, to which, in the opinion of his doctor, the burn injuries had been a contributing factor.
Plaintiff, a 66-year-old farmer, testified about his May 17, 1975, fire. He stated that it was a warm day, between 75° to 80° F, and that he had worked all morning without any problems. In the afternoon he saw gas shooting from the fuel cap vent-hole and heard a noise coming from that location. As he approached the securely fastened cap it blew off without his ever having touched it, and the geysering fuel then ignited and badly burned him. Pictures of plaintiff's burns were admitted into evidence. Plaintiff detailed how one foot had remained sore until the time of his stroke, which he insisted was approximately a half-year after the accident, rather than a year and a half later as related by the doctor's depositions. Plaintiff related that it had taken him a year and a half to return to work gradually. Plaintiff did admit to prior problems with a hernia as well as some injuries to his arms and legs.
At the conclusion of his case in chief, plaintiff offered the testimony of two expert witnesses. The first was Lee Sapetta, a consulting mechanical engineer. He stated that he had been consulted in other cases against International Harvester and that he had warned defendant that its fuel cap vent-hole was not large enough. In his opinion the model 706 tractor was defectively designed in that it lacked both an adequate system for venting pressure in the fuel tank and insulation for the fuel tank, which would have prevented heat from the engine from causing excessive temperature and pressure that could, in turn, cause geysering of fuel. Sapetta conceded that in his opinion, even though pressure build-up was a danger, any increased pressure would not be sufficient to blow off a securely fastened cap. However, if the cap were only slightly turned in the opinion of this witness, increased pressure could cause it to be blown off. During cross-examination defense counsel concentrated on the fact that most of Sapetta's time is spent as an expert witness testifying on a great number of different subjects. Defense counsel also emphasized that fact during his closing argument.
Plaintiff's second expert was Wayne Worthington, who had been an engineer since his college graduation in 1910. Prior to his work as a consultant he had been employed at John Deere Company for 29 years. He stated that in 1963 he had been hired as a consultant by International Harvester and in that capacity he had been shown experiments in which water had geysered out of fuel tanks after heat and pressure were applied. He stated that as a result of the tests he had prepared a report for defendant indicating that the condition was dangerous and that the fuel tank and cap designed had a built-in defect. He related that in the early 1950's John Deere Company had experienced similar problems which had been corrected by utilizing a vent-hole 1/4 inch in diameter and by repositioning the fuel tank.
On its own behalf defendant offered the testimony of several of its engineers and key employees. Its director of product reliability testified that from 1939 until the phase out of gasoline engine tractors in the early 1970's approximately 1.6 million of them had been produced. This figure included over 23,000 model 706 tractors which had been produced between 1963 and 1967. He stated that since farm vehicles are not registered as automobiles are, there is no way to contact ultimate consumers directly other than by mailing International Harvester's regular newsletter to the addresses given it by its dealers. The newsletter has a circulation of approximately 600,000 copies. He asserted that safety is a prime concern at International Harvester. When the 706 and 806 models were first introduced there was a slight steering problem, and defendant responded by going into the field to perform the needed repairs. He also testified that where safety is involved repair cost is not even considered as a factor. Furthermore, every time the company had investigated a tractor fire it had found poor maintenance, such as a cracked manifold, as the cause rather than any indication of a product defect. However, he did admit that they could formulate no theory as to how one specified tractor fire had started, and he also admitted that despite a concern for safety only 13,000 of defendant's 1.6 million gasoline-fueled tractors had ever had heat shields installed between the engine and the fuel tank.
Testimony similar to that of the director of product safety was given by defendant's manager of product safety who testified at length about defendant's commitment to safety and the active support and involvement it had shown for industry-wide safety organizations. The product safety manager admitted that even when he was chairman of an industry-wide safety committee, he was unaware of allegations made about the safety of defendant's fuel tanks by farmers and in internal company memos.
Robert Dahlenberg, a retired International Harvester engineer with nearly 40 years of service with defendant, testified at length concerning defendant's design process. He stated that input came from the entire organization in originating, modifying and improving defendant's tractor line. Dealers were the most influential in determining horsepower requirements and in giving the capability specifications which the design engineers were to meet. In the case of the model 706 defendant developed a completely new tractor rather than to upgrade or make modifications in an older model. The only constraint on design characteristics was that the design allow for use of the tractor with existing implements, and this feature required the fuel tank to be placed in the same position as on previous models. As with all new models, a full scale wooden mock-up was built. This was followed by two experimental prototypes which were built "from the ground up," each component of which was laboratory tested before being added to the assembly. After the two experimental prototypes had been successfully tested by sales personnel and management, 10 more prototypes were built for endurance testing by defendant's personnel and by farmers to whom they were loaned for a period of two years for actual on-farm use before mass production commenced. During the testing only minor hydraulic problems were encountered, and they were quickly remedied. According to Dahlenberg, no fuel problems were discovered during the testing period, and when the model was finally mass-produced the production models performed in the same way as had the prototypes.
Dahlenberg related that he was present when the State of Nebraska, whose testing procedures are accepted industry-wide as the basis for judging performance, had tested the model 706. He remembered that testing well because it was the first totally new tractor for which he had had major responsibility. The Nebraska tests showed the tractor used 4.16 gallons per hour at 50 percent pull and 5.9 gallons per hour at maximum pull, and in Dahlenberg's opinion, even as the vehicle got older, fuel consumption would remain constant at the same carburetor setting. Dahlenberg admitted he was not familiar with any reported model 706 fuel-geysering problems, nor was he familiar with pressure buildup problems in any earlier models other than the 300 and 350. Dahlenberg stated that later 200 and 300 series tractors had had heat shields added during their manufacture and admitted that it would have been better to have added the shields to models still in use in the field as well. Despite those problems with earlier models, Dahlenberg unequivocally stated that he did not believe that fuel could geyser from a model 706, let alone blow off a securely fastened cap.
Thomas Hillstrom, a safety engineer who had been employed by defendant for 13 years, testified about the physical properties of gasoline. He stated that a good summer grade fuel should contain heavier hydrocarbons with a higher boiling point so that vapor lock can be avoided. On the other hand, a winter-grade fuel requires the more volatile light-weight hydrocarbons which have a lower boiling point in order to start a car better in cold weather. Hillstrom showed the court and jury several graphs, based upon government statistics, which showed that the volatility has increased steadily since 1946, with a dramatic increase in 1975, the year of plaintiff's accident. Hillstrom stated that this increase in the volatility of fuel occurred because a more volatile blend permits more gasoline to be produced from the same amount of crude oil. This phenomenon also encouraged refiners to produce the more volatile winter-grade fuel further into the spring of 1975. The increased fuel volatility would be a major contributing factor to any geysering that might occur on a warm spring day. Hillstrom admitted that geysering was an unpredictable occurrence that could take place even in fuel storage tanks which contained the more volatile fuel. In his opinion gasoline refiners should adopt a policy of warning consumers of fuel-geysering problems as defendant had done with the introduction of warning decals in 1975.
Hillstrom defended the design of the model 706 by explaining the three ways in which heat could be transferred from a source to an object or substance. Radiation is the most effective way to transfer heat, as contrasted with conduction through solid objects, which is the least effective way to transfer heat. Convection, the transfer of heat through air, is somewhere in between radiation and conduction in heat-transfer effectiveness. According to Hillstrom, radiation and conduction are almost nonexistent in the model 706 design, and any other positioning of the fuel tank would have resulted in radiation of heat from the transmission to the fuel tank.
As part of its case in chief, defendant also called William Borghoff, an agricultural engineer with defendant since 1962, in an attempt to discredit the expert testimony given by plaintiff's experts. Borghoff testified that typically the product integrity group will send an investigator to an accident scene within hours after receiving a report to insure fresh recollections of the witnesses and the preservation of evidence. However, in the instant case defendant was not able to get the evidence it would have liked to obtain because it had not been contacted until it had been served with summons for the lawsuit. Several of the hypothetical questions that plaintiff had posed to its ...