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08/24/95 DON THOMAS v. CROUSE-HINDS

August 24, 1995

DON THOMAS, PLAINTIFF-APPELLEE,
v.
CROUSE-HINDS, ECM, A DIVISION OF COOPER INDUSTRIES, INC., DEFENDANT AND COUNTER-PLAINTIFF-APPELLANT, AND NATIONAL STEEL CORPORATION D/B/A GRANITE CITY STEEL, AND DAVEY MCKEE, INC., DEFENDANTS AND COUNTER-DEFENDANTS-APPELLEES. CROUSE-HINDS, ECM, A DIVISION OF COOPER INDUSTRIES, INC., THIRD-PARTY PLAINTIFF-APPELLANT, V. SACHS ELECTRIC CO., THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 91-1-617. Honorable Paul E. Riley, Judge, presiding.

Petition for Leave to Appeal Denied December 6, 1995.

Honorable Thomas M. Welch, J., Honorable Gordon E. Maag, P.j., Honorable Charles W. Chapman, J., Concur

The opinion of the court was delivered by: Thomas

JUSTICE WELCH delivered the opinion of the court:

This case arises out of an injury sustained by plaintiff, Don Thomas, while he was employed as an electrician by third-party defendant, Sachs Electric Company ("Sachs"). On September 14, 1990, plaintiff was working on a construction project at Granite City Steel installing electrical conduit pipe on the outside of a newly constructed casting building. Plaintiff, who was standing on a ladder tightening a 10-foot section of conduit pipe into a Crouse-Hinds LB67 conduit elbow, fell to the ground when the conduit elbow broke. Plaintiff suffered serious injuries as a result of the fall.

Plaintiff subsequently filed suit against, inter alia, defendants Crouse-Hinds, the manufacturer of the LB67 conduit elbow; Davey McKee ("McKee"), the general contractor on the construction project at Granite City Steel; and the National Steel Corporation ("National") d/b/a Granite City Steel, the owner of the premises where plaintiff's injury occurred. Plaintiff's suit against Crouse-Hinds was based upon strict tort liability. Specifically, plaintiff alleged that the LB67 conduit elbow was unreasonably dangerous and defective because of a manufacturing defect. Plaintiff's suits against McKee and National were based upon violations of the Structural Work Act (740 ILCS 150/0.01 et seq. (West 1994)). Crouse-Hinds counterclaimed against McKee and National, claiming violations of the Structural Work Act. Crouse-Hinds also filed a third-party action against Sachs, alleging violations of the Structural Work Act.

The following relevant evidence was adduced at trial. On September 14, 1990, at approximately 3:30 p.m., plaintiff was working on the outside of a Granite City Steel casting building running a 10-foot piece of conduit pipe weighing about 35 pounds from an inside junction box to a crane power junction box which was on the top of the building, approximately 30-35 feet from the ground. Plaintiff testified that he was on a ladder attempting to tighten the conduit pipe by turning it into a Crouse-Hinds LB67 conduit elbow. According to plaintiff, he was trying to get another three-quarters of a turn on the conduit pipe when the conduit elbow exploded and threw him off the ladder, causing him to land on his heels. Plaintiff estimated that he fell a distance of between four and five feet. Plaintiff testified that he was unable to stand up because of the pain in his ankles. Although plaintiff asked his foreman to save the conduit elbow, it was not preserved. However, Larry Anderson, a safety man working on the construction job, took two Polaroid pictures of the broken conduit elbow (plaintiff's exhibits five and six). One photograph (plaintiff's exhibit five) depicts a portion of the fractured LB67 conduit elbow attached to the 10-foot section of conduit pipe that plaintiff had been installing, which had fallen to the ground. The second photograph (plaintiff's exhibit six) depicts a portion of the fractured LB67 conduit elbow attached to a section of conduit pipe coming out of the wall of the casting building.

Dr. Albert Karvelis, a vice president with Packer Engineering, was Crouse-Hinds' expert. He opined that the fracture of the LB67 conduit elbow was "the direct result of a sudden application of a levering or bending force." Dr. Karvelis further opined that plaintiff fell, grabbed the conduit pipe, and broke it with his weight. Dr. Karvelis based his opinion on his examination of the two photographs that depict the fractured LB67, the documents generated in the case, measurements he made at the situs of the accident, and some laboratory tests "for demonstrative purposes."

Shortly after Dr. Karvelis' revelation about laboratory tests, a conference was held outside the presence of the jury during which it was discovered that Crouse-Hinds had failed to disclose the existence of certain laboratory tests involving three LB67s. As a result, the trial judge struck Dr. Karvelis' testimony, prevented Dr. Karvelis from testifying any further in the case, and instructed the jury to disregard all of Dr. Karvelis' testimony.

The case then went to the jury, which rendered the following verdict in favor of plaintiff and against Crouse-Hinds:

past and future lost wage $1,880,000

past and future medical expenses $600,000

past and future pain and suffering $260,000

disability and disfigurement $260,000

total $3,000,000

The jury found Crouse-Hinds to be 100% at fault, National 0% at fault, and McKee 0% at fault. The jury also found in favor of National and McKee on Crouse-Hinds' counterclaim against them and in favor of Sachs on Crouse-Hinds' third-party complaint. On March 28, 1994, the trial court entered judgment on the verdict. On April 26, 1994, Crouse-Hinds filed a posttrial motion. On May 19, 1994, the trial court denied the posttrial motion but granted Crouse-Hinds a $300,000 remittitur in the award of past and future medical expenses.

Crouse-Hinds raises the following issues on appeal: (1) whether the trial court abused its discretion in striking the trial testimony of Dr. Karvelis, excluding him as a witness, and giving a jury instruction as to why Dr. Karvelis' testimony was stricken; (2) whether the refusal to give a Tweedy instruction was reversible error (see Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449, 2 Ill. Dec. 282); (3) whether the jury's award of past and future medical expenses is excessive and not supported by the evidence; and (4) whether the jury's award of past and future lost wages is excessive and not supported by the evidence.

The first issue raised by Crouse-Hinds concerns the sanctions imposed upon it for failing to timely disclose the existence of Dr. Karvelis' lab tests involving three LB67s. Crouse-Hinds argues that it did not violate Supreme Court Rule 220(c)(1) (134 Ill. 2d R. 220(c)(1)) because the tests conducted by Dr. Karvelis were "for the demonstrative purpose of illustrating a scientific principle, and did not serve as a basis for his opinion." Furthermore, Crouse-Hinds argues that even if Rule 220 required disclosure, it made a "more than adequate disclosure." Alternatively, Crouse-Hinds argues that even if it did violate Rule 220, the sanctions imposed were too harsh.

At the outset, we wish to address the issue of whether the three LB67s that Dr. Karvelis broke in his lab were demonstrative exhibits or tests that formed a basis for his opinions. In support of its position that the three broken LB67s were demonstrative exhibits not required to be disclosed under Rule 220, Crouse-Hinds cites Foster v. Devilbiss Co. (1988), 174 Ill. App. 3d 359, 529 N.E.2d 581, 124 Ill. Dec. 600. In Foster, plaintiff brought a products liability suit against the Devilbiss Co., manufacturer of the airless spray paint gun involved in plaintiff's injury. The jury returned a verdict in favor of plaintiff, and defendant appealed. Defendant argued on appeal that the trial court erred in allowing plaintiff's expert and then his attorney to bend a spray-paint-gun trigger guard in front of the jury because "experiments must be substantially similar to the actual conditions of the case." ( Foster, 174 Ill. App. 3d at 365, 529 N.E.2d at 585.) The appellate court rejected defendant's argument, holding:

"Devilbiss has confused the use of demonstrative exhibits with experiments carried out by experts to form an opinion. Experiments must be substantially similar to the actual conditions of the case, pursuant to Supreme Court Rule 220 ***, but Rule 220 is inapplicable to the use of a demonstrative exhibit." Foster, 174 Ill. App. 3d at 365, 529 N.E.2d at 585.

Foster is inapplicable to the instant case and does nothing to advance Crouse-Hinds' position. The case at bar does not involve an issue of an in-court demonstration. Crouse-Hinds' assertion that Dr. Karvelis' lab tests did not serve as a basis for his "levered to fracture theory" (i.e., that plaintiff fell, grabbed the conduit pipe, and broke the conduit elbow with his weight) is belied by the record. Counsel for Crouse-Hinds and Dr. Karvelis engaged in the following colloquy on direct examination:

"Q. And this opinion that you've given us, Doctor, what have you based your opinion on?

A. I have studied the two photographs *** of the subject fractured fitting, I have studied all of the documents *** in this case, I have visited the site *** in Granite City where the accident occurred and made measurements as to the heights and lengths and distances, and I've done some laboratory tests for demonstrative purposes." (Emphasis added.)

The fact that Dr. Karvelis characterizes his tests as "for demonstrative purposes" does not negate the fact that, when asked to state the basis for his opinion, Dr. Karvelis listed his lab tests as being a supporting basis of his levered to fracture theory. Lest there be any doubt in this regard, we note this exchange between counsel for Crouse-Hinds and Dr. Karvelis:

"Q. All right. Now, Doctor, you've also said that you've done some testing that supports your opinion. When was that done?

A. That was done in the fall of '93.

Q. And where did the testing take place?

A. At Packer Engineering.

Q. Can you be more specific concerning the date of ...


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