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09/09/96 IZZIE BAYLIE AND AMANDA BAILEY v. SWIFT &

September 9, 1996

IZZIE BAYLIE AND AMANDA BAILEY, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF FOREST BAILEY, PLAINTIFFS-APPELLEES,
v.
SWIFT & COMPANY, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LEONARD GRAZIAN, JUDGE PRESIDING.

Released for Publication October 22, 1996.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Braden, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Defendant, Swift & Co. (Swift) appeals from a $6.2 million judgment entered against it and in favor of plaintiffs, Izzie Baylie and Amanda Bailey, as special administrator of the Estate of Forest Bailey. On appeal, Swift contends that: (1) the trial court erred in striking its affirmative defense of laches; (2) the trial court erred in failing to dismiss the action based on laches; (3) the trial court erred in failing to grant Swift's motion for judgment notwithstanding the verdict; and (4) the trial court erred in failing to grant Swift's motion for a new trial, based on alleged enumerated trial errors. For the following reasons, we affirm.

BACKGROUND

The following facts are relevant to this appeal. Izzie Baylie (Izzie) and his brother Forest Bailey (Forest) *fn1 were injured as a result of an explosion and fire that occurred on July 6, 1963, at the A. Cramer Company (Cramer), in Oak Lawn, Illinois. Izzie and Forest were employed by Cramer, a custom milling operation, to grind calcium stearate for use in a soap product manufactured by Swift.

Plaintiffs filed a negligence action in 1964, alleging that Swift had failed to warn Cramer that calcium stearate presented a risk of explosion under certain circumstances. Following a jury trial in May 1971, the trial court directed a verdict for Swift. In December 1975, this court reversed and remanded the case for a new trial, finding the jury should have been permitted to determine whether Swift had a duty to warn plaintiffs of the danger of a calcium stearate dust explosion. Baylie v. Swift & Co., 27 Ill. App. 3d 1031, 327 N.E.2d 438 (1975) (Baylie I).

In July 1994, the case was re-tried before a jury resulting in a $6.2 million judgment against Swift. Much of the evidence presented at the 1994 trial duplicates the evidence presented in Baylie I. Therefore, we recite the facts only to the extent necessary to resolve the matters now before us.

1994 TRIAL

At trial, William Blew testified that he was employed by Swift as a chemical engineer in research and development department from 1951-1971. Swift manufactured various types of soaps, the components of which were produced as a by-product of its meat production operations. In 1959, Blew developed and patented a method for efficiently producing calcium stearate in solid form.

Swift eventually discovered other markets for calcium stearate, including uses as an anti-caking agent in salt, cosmetics and pharmaceuticals, and as a waterproofing agent. For these applications, calcium stearate had to be crushed to a non-uniform grind, resulting in a "325 mesh" fine powder form. To achieve a 325 mesh, the ground substance must pass through a screen consisting of 325 openings per square inch. In 1959, Swift contracted with Cramer to grind the calcium stearate to 325 mesh because Swift did not have the means or the expertise to do so.

Blew had no knowledge that calcium stearate was flammable or explosive. However, Blew stated that if he had reason to believe that a product created by Swift was either flammable or combustible, Swift was responsible for testing its product. Blew was not knowledgeable about dust explosions. Although he was generally familiar with the Federal Bureau of Mines (Bureau), he did not know that the Bureau could test compounds manufactured by industry for explosibility.

Blew testified that the general properties of a material were determined at Swift's research center which employed chemists and chemical engineers. Swift's research center analyzed calcium stearate for numerous properties. Although Swift was equipped to determine the flash point of materials, Swift did not determine the flash point of calcium stearate.

The 1971 trial testimony of Dr. Robert Causland, and Oak Lawn Fire Captain Earl Vogelsanger was read to the jury.

Causland testified that on the basis of his own testing of calcium stearate, the material was not flammable. Causland informed Cramer personnel that the material was not flammable. On his visits to the Cramer plant, Causland noticed gray-white dust coming from the grinding area, but never called the atmospheric condition of the plant to the attention of Cramer personnel. Causland denied talking to Izzie Baylie on the telephone in late June or early July 1963 regarding a calcium stearate order from Monsanto Chemical. Causland stated that he left for vacation on June 29 or June 30, and returned on July 13, 1963. See Baylie I, 27 Ill. App. 3d at 1035.

Vogelsanger determined that the explosion in the grinding room was caused by an accumulation of dust, which is a hazardous condition in any mill. On almost every prior inspection of the Cramer plant, the Fire Department found an accumulation of dust, which they recommended be cleaned up. Vogelsanger concluded that the plant was not cleaned as requested. See Baylie I, 27 Ill. App. 3d at 1039.

In addition, the evidence deposition of Matthew Hannon, who died prior to the 1971 trial, was read into the record. Hannon was the general manager of the Cramer plant beginning in 1960. Neither Hannon nor his predecessor, Gerald Lewis, had any background in grinding or pulverizing. Hannon stated that it was Cramer's policy not to accept flammable or explosive materials for grinding. Hannon consulted with his partners, Dr. Siehrs and Dr. Cramer, as well as with a chemical book, before accepting a particular product for grinding. See Baylie I, 27 Ill. App. 3d 1031 at 1037-38, 327 N.E.2d 438.

Plaintiff then read Swift's answers to certain interrogatories into the record. The interrogatories were answered by George Mehl, the leader of the Soap Division at Swift at the time of the explosion. Mehl stated that Swift employed "scores of chemists and chemical engineers," and that Swift supervisory personnel, including Causland and Mehl, visited the Cramer plant on numerous occasions. Mehl further stated that Swift gave no warning to Cramer or any employees regarding the probability of instantaneous combustion, explosion or flash fire resulting from the dust suspended in the atmosphere during the pulverization of calcium stearate. Mehl stated that calcium stearate is non-flammable, and therefore does not have the requisite properties to arrive at a flash point.

Dr. Chester Grelecki then testified as an expert witness on plaintiffs' behalf. Dr. Grelecki is the president and chief scientist of Hazards Research Corporation (Hazards), a consulting firm which provides hazardous material testing services to the chemical processing industry.

Dr. Grelecki defined an explosion as a very rapid expansion of a high pressure gas. A dust explosion occurs where the source of the high pressure gas combusts, emitting finely dispersed particles into the atmosphere. The properties that control the violence of the dust explosion are the rate at which the dust burns, and how fast it produces expandable gas. The faster the dust produces the gas, the more violent the explosion.

The rate at which dust produces gas depends on how finely the dust is divided. A small particle is consumed by flame faster. Very tiny 10 micron particles, the average size of particles used in the milling operations, have a very rapid rate of consumption by flame.

Dr. Grelecki stated that calcium stearate does indeed have a flash point when pulverized. Before any material burns, it must vaporize. Combustion occurs during the vapor phase in the visible flame. When heated to the point of liquification, calcium stearate would have enough vapor to burn.

In 1971, Hazards evaluated the explosibility of calcium stearate, based on the standards established in 1960 by the Federal Bureau of Mines (Bureau). The Bureau was created to measure the explosibility of coal dusts in the 1920s or 1930s. In the late 1930s or early 1940s, the Bureau performed explosibility tests on other materials for the chemical industry. As such, Dr. Grelecki stated that Swift could have submitted calcium stearate to the Bureau in the 1950s for an evaluation at an estimated cost of $20. Prior to 1968, the Bureau tested thousands of chemicals for explosibility and filed reports. A Bureau report published in that year concluded that calcium stearate dust constituted a severe explosion hazard. This information could have been known in the 1950s through testing methods available, although the Bureau did not test calcium stearate for explosibility until 1968.

Hazards performed tests on three different sizes of calcium stearate; the smallest sample milled at 325 mesh. The 325 mesh sample had the fastest reaction time in burning and exploding, giving it a severe rating comparable to that of cornstarch, which has been long known to be a severe hazardous dust.

Hazards' evaluation revealed that a 325 mesh particle could ignite with a spark. Dr. Grelecki explained that dust explosions come in pairs: first there is a small explosion which disperses other material into the ...


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