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March 18, 1994



Released for Publication May 5, 1994.

McNAMARA, Egan, Rakowski

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff, James Gausselin, brought this action to recover for injuries he sustained while working at a nuclear power facility owned and operated by defendant, Commonwealth Edison. In count I of his complaint, plaintiff alleged violations of the Illinois Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, par. 60 et seq.). In count II, he alleged common law negligence. A jury returned a verdict in favor of defendant on both counts and the trial court entered judgment on the verdict. On appeal, plaintiff contends that the trial court erred in(1) refusing to give the jury separate verdict forms for each count of his complaint; (2) allowing an undisclosed expert witness to testify for defendant; (3) allowing documents into evidence which defendant failed to produce prior to trial; and (4) admitting into evidence a photograph without sufficient foundation.

The relevant facts are as follows. On December 14, 1984, plaintiff was injured while working on a scaffold at defendant's LaSalle Nuclear Power Plant ("LaSalle"). At the time of the injury, plaintiff was employed as a pipefitter by Morrison Construction Company and was working, along with several other Morrison employees, at the LaSalle plant. On the date in question, plaintiff and an apprentice pipefitter, Ed Patz, Jr., were assigned to unbolt a flange on the end of a pipe attached to a vapor body in the "rad waste" building at LaSalle. Different types of radioactive waste are processed in vapor bodies in that building. Before going to the rad waste building, Gausselin and Patz obtained a radiation work permit and the necessary authorization to enter the rad waste building. They then received protective clothing from defendant's "rad chem" department. Gausselin asked one of the technicians whether the flange he was opening was pressurized because he wanted to know if there was potentially radioactive water in the line, but the technician said he did not know. According to plaintiff, it was customary for defendant to drain any pipes needing repair before Morrison employees began to work on them; Morrison employees had no authority to do so on their own.

The pipe and flange plaintiff and Patz were instructed to repair were approximately 10 feet from the floor. The flange was 18 or 24 inches in diameter and weighed about 80 pounds. Plaintiff and Patz had to climb a scaffold to reach them. The scaffold was already assembled, and plaintiff made no attempt to move it. Several tools were on top of the scaffold. Plaintiff did not touch or move these tools because he thought they might be contaminated. Plaintiff agreed that, as far as the location of the flange was concerned, there was nothing wrong with the placement of the scaffold.

Plaintiff and Patz climbed on top of the scaffold and began removing the 14 to 20 bolts securing the flange to the pipe. The deck of the scaffold was approximately two to three feet below the top of the flange, and it was necessary for plaintiff to squat down while he repaired the flange. The flange extended into the scaffold approximately six inches. Plaintiff loosened the bolts in a "crisscross" motion because he "wanted the [flange] to come off nice and easy." Plaintiff stated that as they loosened the bolts, "some water came out" and "all of a sudden, the flange popped off." Plaintiff, still in a squat position, quickly twisted around and landed on top of the tools when a spray of water came out "a good two feet in the air." Plaintiffand Patz quickly got up and "rushed the plate, put our weight on the plate" and "started tightening up the bolts * * *." Plaintiff said that he felt pain in his right knee when he landed on the tools.

Plaintiff stated that a couple of gallons of water came out of the pipe before they reattached the flange. His boots got wet, but plaintiff did not receive any contamination from this incident. Plaintiff did not know if the water flowed down a drain in the room, but agreed with another witness that sometimes workers would tape over drains.

Once on the ground, plaintiff told Joe Feisel, the Morrison employee stationed outside the rad waste building, to call his foreman, Tom Faubel, and the head foreman, Bob Jahnke, and report that the pipe contained pressurized water. Later that day, plaintiff reported the incident to both Faubel and Jahnke. At the end of his shift, plaintiff drove himself home from work. His knee was swollen and painful when he arrived home.

Plaintiff did not see a doctor over the weekend following the incident because he wanted to see the company doctor on Monday. The doctor was not in on Monday and plaintiff did only light work that day. On Tuesday, he again reported to work, and saw the company doctor at a nearby hospital. He told the doctor's nurse about a fall he took a few weeks before December 14, in which he hit his knees on the floor. He said he experienced no pain or other problems from that fall. Plaintiff did not tell the doctor that he was injured as a result of water spraying out of the pipe.

Plaintiff continued to work the rest of the week, taking pain pills prescribed by the doctor and performing only light work. Plaintiff then called his family physician, Doctor Lambur, but could not get an appointment until January 16, 1985. Doctor Lambur performed tests on the knee on January 21. Plaintiff subsequently underwent surgery to his knee and eventually returned to work in April.

Doctor Lambur testified on plaintiff's behalf, and stated that plaintiff told him that he was injured at work while trying to avoid "a splash of water." Doctor Lambur performed surgery on plaintiff's knee on January 30, 1985. He testified that plaintiff's explanation of how the injury occurred was consistent with the problems he saw in the knee during surgery.

Jahnke also testified for plaintiff. Plaintiff told him on December 14 that he and Patz were unbolting a flange when he was sprayed with contaminated water and twisted his knee on the scaffold. Jahnke noticed that plaintiff was limping. After the incident, Jahnke went into the room where plaintiff had been working, and noticed a gallon or two of water on the floor. Jahnke opined that the water came from the flange. After viewing the room, Jahnke reported the incident to Tim O'Connor, one of defendant's field engineers.

Jahnke stated that Morrison "takes [defendant's] word" that the pipes to be repaired have been drained. Morrison has no authority to drain the lines. He explained that a pink sheet is customarily attached to the work package Morrison gets from defendant for a repair job, which indicates whether the piping system is running that day and whether there is any pressure in the pipes. According to Jahnke, the work package admitted at trial was incomplete because the pink sheet was missing. Jahnke stated that the work could not be completed without this sheet.

Jahnke was aware that LaSalle had a comprehensive draining system leading to holding tanks. He stated that these water holding tanks "used to fill, and then, overfill onto the floor, and then, out the door." According to Jahnke, none of the water from the pipe plaintiff was repairing could have flowed into the holding tanks because the drain in the rad waste room had been taped by Morrison employees "so no water would go down it."

Faubel testified next for plaintiff. As foreman, Faubel was responsible for filling out accident reports whenever a Morrison worker was injured. On December 19, 1984, Faubel completed such a report for plaintiff. The report, which was admitted into evidence, explained plaintiff's account of the incident and stated: "When unbolting the flange, water leaking out, Gausselin moved back, hitting his knee on the pipe" because "[the] line was not drained correctly by [defendant]." The report described the injury as "a swollen right knee." Faubel testified that plaintiff told him about the accident on December 14, but he did not have time to complete the accident report until December 19.

Plaintiff called William Heilman to testify as a safety expert. He based his opinions on a document explaining the general conditions of work performed at the plant, a transcript of plaintiff's deposition, and a sworn statement given by Patz. Heilman, a safety engineer and safety consultant, opined that "the scaffold used was not a safe, suitable and proper one in that it was not properly placed." Heilman concluded that the scaffold was at the wrong height for the work being done and "contained extraneous materials left on it by previous users * * *, which is not allowed." He testified that the work environment violated the Structural Work Act, various OSHA standards, and other customs and practices in the industry. According to Heilman, the tools should not have been left on the scaffold, the scaffold should have had a guardrail, the scaffold's placement should have been better inspected, and plaintiff should have been instructed in proper scaffold use and flange removal. The pipe should not have been pressurized.

Plaintiff called an employee of defendant as an adverse witness. Timothy O'Connor was a field engineer in December 1984, and was responsible in part for overseeing the work of Morrison employees. O'Connor stated that plaintiff had the authority to move the scaffold anywhere he desired.

O'Connor further stated that defendant monitors the level of water located in the process systems, and would detect a decrease of as little as three or four gallons from the system. In the event of a release of water from a given pipe, the water would go down a drain leading to the holding tanks and defendant would "document it in a log, either the shift engineer's log or the liquid rad waste log." O'Connor was familiar with the custom and practice of completing these logs, although it was not his job to complete either log. O'Connor testified that a release of water from an open flange of the sort described by plaintiff would have been recorded on these logs. On December 14, no such recordation was made. He acknowledged that the beginning and ending levels in each tank were not listed on the logs, and that an anticipated level change or a de minimis change would not be recorded.

Plaintiff had earlier objected to defendant's use of the shift engineer's and liquid rad waste logs, as well as various other documents, on the ground that they had not been timely disclosed in compliance with his pre-trial production requests. Defendant did not produce the documents until after the jury had been selected. Defendant argued that plaintiff did not request these particular documents in any of his requests, and the trial court, upon reviewing the documents, agreed. Plaintiff's objection to the use of the documents was accordingly overruled.

Prior to the completion of plaintiff's case-in-chief, defendant gave plaintiff some additional documents which plaintiff had never before seen. Defendant informed the trial court that the documents were going to be used during its examination of Larry Ellis to rebut Jahnke's testimony concerning the inspection of the rad waste room in which plaintiff was injured and the drain located therein. Plaintiff objected to the use of these documents, again on the basis of untimely disclosure. The trial court ruled that the documents could be used during Ellis's testimony to rebut the testimony of Jahnke. The court later gave plaintiff permission to take a short deposition of Ellis before he testified.

Before calling Ellis to testify, defendant presented the testimony of Patz and Fiesel. Patz recalled working on a scaffold with plaintiff to repair a flange in the rad waste building, but stated that nothing unusual happened; water did not squirt out of the pipe. After theycompleted the job, they left the room. On the way out of the room, plaintiff complained to Patz that his knee hurt. Patz could not remember anything about the scaffold, and could not remember if they were taking the flange off the pipe or attaching it to the pipe. Nor could Patz recall whether there was water on the floor. On cross-examination, Patz testified that it was ...

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