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01/05/95 RICHARD BUSCH v. GRAPHIC COLOR CORPORATION

January 5, 1995

RICHARD BUSCH, AS ADM'R OF THE ESTATE OF MELISSA BUSCH, DECEASED, PLAINTIFF-APPELLANT,
v.
GRAPHIC COLOR CORPORATION AND AMREP, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 91-L-207. Honorable Richard A. Lucas, Judge, Presiding.

Rehearing Denied January 31, 1995.

Presiding Justice McLAREN delivered the opinion of the court: Geiger and Bowman, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

The plaintiff, Richard Busch, as administrator of the estate of his deceased wife, Melissa Busch, appeals the grant of summary judgment by the circuit court of Du Page County in favor of the defendants, Graphic Color Corporation and Amrep, Inc., based upon the court's determination that the plaintiff's State-law action for wrongful death was preempted by Federal law. We affirm.

Richard Busch owns R. Busch Drum, Inc., which buys, sells, and brokers recyclable industrial drums. Early in 1989, Graphic Color engaged Busch to clean some of its printing ink vats. Graphic Color provided Busch with 60 cans of Misty paint stripper and decal remover (Misty paint stripper), which is manufactured by defendant Amrep. Graphic Color also provided Busch with 12 vats to clean, each of which was about five feet high and five feet in diameter.

Graphic Color did not specifically warn Busch that Misty paint stripper, which contains methylene chloride, could be fatal if inhaled, but each can of the product contained printed warnings which track language required by the Federal Consumer Product Safety Commission (Safety Commission). See Safety Commission, Labeling of Certain Household Products Containing Methylene Chloride; Statement of Interpretation and Enforcement Policy (hereinafter 1987 Enforcement Policy), 52 Fed. Reg. 34,698-02 (1987).

Melissa Busch, although not an employee of R. Busch Drum, Inc., occasionally helped her husband with his business. On March 20, 1989, Richard Busch left his Cicero, Illinois, place of business to call on customers. When he returned he found Melissa unconscious next to one of the vats. She died, and the cause of death was determined to be methylene chloride intoxication.

On January 31, 1991, the plaintiff filed a complaint at law alleging wrongful death against the defendants based upon a claimed breach by the defendants of the duty to warn of the danger of methylene chloride. The plaintiff proffered an affidavit by Robert E. Davis, a chemist experienced in the properties of toxic chemicals, who expressed the opinion that the warning label contained on the Misty painter stripper cans was insufficient in that it does not specifically warn of the asphyxiation hazard of methylene chloride.

The defendants filed motions for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 1992)), alleging that the plaintiff's State-law action was preempted by the Federal Hazardous Substances Act (FHSA). (15 U.S.C. ยง 1261 et seq. (19 ).) Following a hearing on January 3, 1994, the circuit court granted summary judgment for both defendants, finding preemption. The plaintiff filed a timely appeal.

On appeal, the plaintiff argues that the circuit court erred in finding preemption in that (1) the Safety Commission did not comply with Federal law in promulgating warning label requirements for products containing methylene chloride, and (2) the warning required for such products concerns a risk of injury which is different from that suffered by Melissa Busch.

We note initially that, because this matter comes to us via summary judgment, we have de novo review. ( Olympic Restaurant Corp. v. Bank of Wheaton (1993), 251 Ill. App. 3d 594, 598, 190 Ill. Dec. 874, 622 N.E.2d 904.) A motion for summary judgment is properly granted only when "'the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" ( Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867, quoting Ill. Rev. Stat. 1983, ch. 110, par. 2-1005(c) (now 735 ILCS 5/2-1005(c) (West 1992)).) Supreme Court Rule 191(a) provides that facts asserted in support of or opposition to a motion for summary judgment must be contained in affidavits and "shall be made on the personal knowledge of the affiant." (134 Ill. 2d R. 191(a).) Such affidavits must conform to the requirements of Supreme Court Rule 191. Giampa v. Sunbeam Corp. (1966), 68 Ill. App. 2d 425, 430, 216 N.E.2d 233.

We first consider the plaintiff's argument that the Safety Commission's labeling requirements for methylene chloride products are null and void because the Safety Commission did not complywith the federally mandated procedures for establishing binding labeling requirements. Therefore, the plaintiff argues, the labeling requirements for methylene chloride do not in fact exist and can have no preemptive effect.

The defendants counter that the plaintiff waived this argument for appeal because he did not raise the issue below. The parties agree that, as a general principle of law, issues not raised in the trial court are waived for purposes of appeal. Lannom v. Kosco (1993), 247 Ill. App. 3d 629, 635-36, 186 Ill. Dec. 541, 616 N.E.2d 731.

Here, the record discloses that the only mention of the plaintiff's contention that the Safety Commission's labeling requirements for methylene chloride were void came in a brief colloquy during argument ...


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