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05/04/89 Theodore Byrne Et Al., v. Scm Corporation Et Al.

May 4, 1989

THEODORE BYRNE ET AL., PLAINTIFFS-APPELLEES

v.

SCM CORPORATION ET AL., DEFENDANTS AND THIRD-PARTY, PLAINTIFFS-APPELLANTS (CONSTRUCTION SERVICE & SUPPLY, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF;



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Carle Foundation Hospital, Third-Party, Defendant-Appellee)

538 N.E.2d 796, 182 Ill. App. 3d 523, 131 Ill. Dec. 421 1989.IL.669

Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This action was brought in the circuit court of Champaign County by plaintiffs Theodore and Diane Byrne against defendants SCM Corporation and Glidden Coating and Resins, a division of SCM, and Construction Service and Supply, Inc., the manufacturer and distributor of an epoxy paint, to recover damages for injuries sustained when Ted used defendants' product as part of his job as a painter for the Carle Foundation Hospital (Carle). Plaintiffs originally filed a complaint alleging several counts in negligence, strict liability, and wilful and wanton misconduct, but dismissed all but the strict liability counts prior to trial. The defendants filed a third-party action for contribution against Carle.

On the first day of trial, the plaintiffs received leave to amend their complaint to include violations of a State statute and a Federal regulation. Defendants objected to the timeliness of the late amendment, which raised a new theory on the first day of trial. The defendants' motion to strike these portions of the amended complaint was denied. The plaintiffs conceded at the close of evidence that the Federal regulation did not apply to their claim and this allegation was stricken on the defendants' motion. The trial court instructed the jury as to the State statute which requires a manufacturer who sells toxic substances in turn to supply to the purchaser a material safety data sheet within 30 days of the receipt. Ill. Rev. Stat. 1987, ch. 48, par. 1411.

The third-party complaint was set out in six counts. Counts I, II, and III were contribution claims by Construction Service and Supply, Inc.,

On October 2, 1987, Carle filed a motion to dismiss this second-amended third-party complaint. After hearing arguments of counsel, the court entered a written order on October 5, 1987, dismissing with prejudice counts II, III, V, and VI of the second-amended third-party complaint and striking subparagraph 10(c) of the remaining counts. On October 5, 1987, Carle filed an answer to the remainder of the third-party complaint.

However, on October 8, 1987, Carle filed a motion for summary judgment with voluminous exhibits. On October 14, 1987, defendants filed a notice of filing discovery depositions in opposition of third-party defendants' motion for summary judgment, listing the discovery depositions of Charles Woolridge and Richard Peters, two of Ted's fellow employees. The defendants also attempted to tender portions of the depositions of James Glaze and Susan Johnston, two of plaintiffs' experts, at the hearing on the motion, which occurred after the trial had begun. After hearing arguments of counsel, the trial court made the following findings, which the court subsequently expressed in a written order filed October 28, 1987:

"1. The Court adopts the argument advanced by the Third-Party Defendant that the seven subparagraphs of Third-Party Plaintiff's Second Amended Complaint allege only two theories of recovery founded upon the issues of ventilation and respiration.

2. The Court grants the Motion by Third-Party Defendant to strike the tender by Third-Party Plaintiff of the deposition excerpts of James Glaze and Susan Johnston as untimely.

3. The Court finds that Third-Party Plaintiff failed to adduce any evidence in opposition to the Motion for Summary Judgment to support the contention that the Third-Party Defendant knew or should have known that any or different respiration was necessary under the circumstances of this case. The Court, therefore, grants the Motion for Summary Judgment as to each Count of the Second Amended Third-Party Complaint, as more particularly set forth in Paragraph 10, subparagraphs (e) -- (h).

4. The Court grants the Motion for Summary Judgment as to each Count of the Second Amended Third-Party Complaint, as more particularly set forth at Paragraph 10, subparagraph (d), but only as said subparagraph relates to respiration.

5. The Court finds after consideration of the opposition to Motion for Summary Judgment that there is a genuine issue as to a material fact on the issue of ventilation, and accordingly, the Motion for Summary Judgment directed to Paragraph 10, subparagraphs (a), (b) and the portion of subparagraph (d) referencing 'ventilation,' is, therefore, denied."

The trial court stated that in making the ruling, the court considered only the filings made by defendants in opposition to the motion for summary judgment, neither of whom were experts.

The facts brought out at trial follow. Ted is a 36-year-old painter who had been employed at Carle for a period of approximately five years prior to October 15, 1984. He is married to Diane and they have three children. His earnings at Carle during 1983 were $23,000 to $25,000. Prior to October 15, 1984, Ted was a healthy man. He worked every day and participated in athletics, including baseball and bowling. He played basketball with his children. The family had a boat and a camper, and they did a lot of camping and boating.

On October 15 and 16, 1984, Ted was painting the pathology lab using Glid-Guard epoxy paint, manufactured by defendants SCM Corporation and Glidden Coating and Resins, a division of SCM (Glidden Coating), and ultimately sold by the defendants' supplier, Construction Service and Supply, Inc., to Carle.

The epoxy paint which the plaintiff used came in two separate containers and the two components were then mixed. Under the name of the product, the label for component A advised that the breathing of vapors might be harmful, and directed the user to the cautions on the side. It stated:

"WARNING! FLAMMABLE PAINT! VAPOR HARMFUL!

See Cautions on Side Panel"

The word "warning" was in enlarged letters. On the side panel, the label warned:

" WARNING!

FLAMMABLE! VAPOR HARMFUL

CONTAINS METHYL ETHYL

KETONE AND TOLUENE

Keep away from heat, sparks and open flame. Avoid prolonged contact with skin and breathing of vapor or spray mist. In case of skin contact wash thoroughly with soap and water. Eye contact flush immediately with water for at least 15 minutes. Get medical attention.

Use Only With

Good Ventilation.

KEEP OUT OF THE REACH OF CHILDREN"

(Emphasis in original.)

The statement "Use Only With Good Ventilation" was the only printing which was in italics. The directions on the component A can stated:

"APPLICATION

Mix as Directed. Apply liberally and uniformly. See Glidden representative for specific recommendations on equipment and conditions governing application by conventional or airless spraying. Do not apply on putty coat plaster. Air-supplied respirators should be worn during application in confined areas without good ventilation."

The component B can also contained warnings. Like the first can, there was a warning underneath the product name which advised:

"WARNING! FLAMMABLE PAINT! VAPOR HARMFUL!

See Cautions on Side Panel"

Again, the word "warning" was in larger letters than the other print. It also had another warning under the product label which stated:

"WARNING!

Contains ETHYLENE GLYCOL MONOETHYL ETHER

Wear impervious clothing and equipment to prevent eye and skin contact. Exposure controls may require use of a NIOSH approved combination vapor/particulate or supplied air respirator. Reproductive and blood disorders and birth defects have been observed in tests on laboratory animals with ethylene glycol monoethyl ether."

The side panel provided:

"WARNING! FLAMMABLE! VAPOR HARMFUL CONTAINS METHYL ETHYL KETONE AND GLYCOL ETHERS

Keep away from heat, sparks and open flame. Avoid prolonged contact with the skin and breathing of vapor or spray mist. In case of skin contact wash thoroughly with soap and water. Eye contact flush immediately with water for at least 15 minutes. Get medical attention.

USE ONLY WITH GOOD VENTILATION KEEP OUT OF THE REACH OF CHILDREN"

The directions specifically referred the user to the other label for directions on the product's use.

The labels were seen by Richard Peters, the plaintiff's fellow painter. The labels were not obscured and could be read.

Three expert witnesses, Gilbert Elenbogen, James Glaze, and Susan Johnston, were called to testify by plaintiff. Elenbogen has a master's degree in chemistry, and a master's degree in environmental engineering, and is presently a research chemist with the Metropolitan Sanitary District of Chicago. He is familiar with epoxy paints and material safety data sheets used in determining the protection, if any, required for the use of a manufacturer's product. He had reviewed the Glid-Guard epoxy paint labels and the material safety data sheets, and in his opinion, it was not reasonably safe to use this paint outdoors without any respiratory protection because of the vapors. These paints contain toluene, methyl ethyl ketone, and glycol ethers which are known to be toxic and can cause irreversible damage. In his opinion, it would not be reasonably safe in an indoor setting to use an absorbent respirator. It is also Elenbogen's opinion that the use of the expression "Use Only With Good Ventilation" was not clear enough, as this statement does not say what good ventilation is and does not advise any specific kind of mask. Elenbogen opined that under all conditions some mask would be required, even if there were a very good air supply. Elenbogen testified the use of the terms, "exposure controls may require use of a NIOSH [National Institute of Occupations Safety and Health] approved combination vapor particulate or air-supplied respirator," is not sufficient. Based upon his experience, its use is absolutely essential.

According to Elenbogen, the information contained in material safety data sheets provided that at the minimum a NIOSH-approved chemical-mechanical filter respirator must be used, and in confined areas the use of approved air-supplied equipment was mandatory. The label on the cans of epoxy paint was ambiguous and did not require the use of any specific safety equipment. In Elenbogen's opinion, the product was unreasonably dangerous as labelled if there was a failure to supply the material safety data sheet. He has read published material which indicates inhalation of solvents, the MEK (methyl ethyl ketone), the toluene, or propylene glycol ethers can cause brain damage and central nervous system damage.

Johnston received her master of science degree in organic chemistry at the University of Illinois and is employed by the Army Corps of Engineers. She has tested probably 200 samples of epoxy paint and has taken standard formulations or recipes for epoxy paint and added modifying agents. She had an assignment for a period of about two years to develop a very durable tough coating in a project funded by the Navy. Her title is that of "Paint Chemist," and she has been appointed the "Hazardous Materials Action Officer" in her division at the United States Army Corps of Engineers Construction Engineering Research Laboratory.

She is familiar with material safety data sheets and works with them in her work. She has reviewed the label and material safety data sheet for Glid-Guard epoxy paint to determine the specific contents. In her opinion it would not be a safe practice to use Glid-Guard epoxy paint without a respirator because several of the solvents in the paint are harmful, and a safe practice would require at least the use of an organic vapor cartridge anytime while using those paints.

Glaze is a safety engineer for Granite Construction Company and has a doctorate in the specialized area of environmental health and safety. He was a United States Air Force officer, pilot, and safety officer for 20 years. He was chief of specialized safety for products sold to the United States government and worked with a wide variety of products with approximately 900 contractors. He worked with paint, and labeling of the product was part of his work. He was safety coordinator for six years at the University of Illinois, where he conducted courses on the Occupational Safety and Health Act (29 U.S.C. § 651 et seq. (1982)) and audited and inspected campus laboratories and facilities for safety and fire hazards.

According to Glaze, material safety data sheets spell out the peculiarities or hazards and the precautions for different types of material such as paint and any other material that might present some hazards to the user. He reviewed the label and the material safety data sheet for the epoxy paint and, assuming neither the manufacturer nor the supplier provided Carle with a material safety data sheet, then in his opinion it would be a major detriment to the ability of the employer to carry out necessary safety provisions regarding that sheet. The employer might not be aware of the hazards of the chemicals or the specifics of what safety protection might be required, such as a respirator or any other type of specific safety equipment. In his opinion, it would be quite significant not to have the material safety data sheet on such an item. In addition, it is his opinion that the absence of any specific definition of "Good Ventilation" means it is open to interpretation. For one person it might mean to open up the window, to others use a large fan, and to others it might mean something else. The labels do not say the paint should not be used without some sort of filter, and the label does not specify what kind of filter should be used. In his opinion as a safety expert, the label contains no guidance as to when one type of mask would be adequate and when the other type would be needed. It is also his opinion that the use of the word "may" in the label is inadequate. The Occupational Safety and Health Administration , NIOSH, and MSHA (Mine Safety and Health Administration) delineated "shall" as being a positive word saying "you will do this." The agencies left out the soft optional choices like the word "may" in most all of their literature. The use of the word "may" allows someone to interpret what he thinks is appropriate. Based upon a reasonable degree of scientific certainty as a safety expert, Glaze opined the labeling is inadequate. It does not guide a person using it. It does not guide the company that purchased the paint. The emphasis of the label seems to be focused more on flammables. The label's use of "may," "should," or "good" could allow conscientious persons to conclude an open window or some ventilation would be adequate without utilizing a respirator, or certainly not the proper type of respirator. Based on his knowledge and experience as a safety expert, there are no circumstances where this product may be used safely without some form of respiratory protection.

Glaze believes a product can be rendered unreasonably dangerous due to inadequate labeling and instructions and the labels in this case were extremely inadequate, making the product unreasonably dangerous. For this reason it was necessary to furnish the material safety data sheets. Even if the user had both the label and the material safety data sheets, there could still be confusion because of the conflicting information.

The "Protective Maintenance Coatings Data" for Glid-Guard epoxy paint published by the defendant in January 1984 provides that in open areas a paint spray mask with approved chemical-mechanical filter is required and in enclosed or confined areas a NIOSH-MSHA-approved supplied-air respirator is required. The material safety data sheet for the Glid-Guard requires the use of a NIOSH-approved respirator with a chemical-mechanical filter, and in confined areas, approved supplied-air apparatus or equipment.

A copy of a later label used on the same Glid-Guard epoxy chemical paint published by the defendant in 1983 states in part:

"In open areas use paint spray mask and approved chemical-mechanical filter. In enclosed or confined areas use NIOSH/MSHA approved supplied air respirators."

The labels on the epoxy paint cans in question use the expression:

"[Exposure] controls may require the use of a NIOSH approved respirator."

James Sainsbury, product manager with Glidden Coating, testified the labels of Glidden paints are prepared by a committee of which Sainsbury is a member. The ultimate decision as to what label would be used ...


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