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Lasalle National Bank v. Malik

January 20, 1999

LASALLE NATIONAL BANK N/K/A LASALLE NATIONAL BANK, N.A., AS TRUSTEE UNDER TRUST NO. 113573, PLAINTIFF AND COUNTERDEFENDANT,
v.
CARLYN J. MALIK, AN INDIVIDUAL, AND CARLYN J. MALIK, M.D., S.C., DEFENDANTS AND COUNTERPLAINTIFFS (CARLYN J. MALIK, CYNTHIA KRYSTOZEK, CHESTER OBROCHTA, AND PAMELA KUFAHL, THIRD-PARTY PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES; KIANNOSH JAFARI, SOUSSAN JAFARI, GEORGE OLSON, AND 3M COMPANY, THIRD-PARTY DEFENDANTS-APPELLEES; SWISSLER BROTHERS PLUMBING, INC., AND JACK SWISSLER, THIRD-PARTY DEFENDANTS-APPELLEES AND CROSS-APPELLANTS).



Appeal from the Circuit Court of Du Page County. No. 93--L--279 Honorable Hollis L. Webster, Judge, Presiding.

The opinion of the court was delivered by: Justice Thomas

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

LaSalle National Bank n/k/a LaSalle National Bank, N.A., as Trustee under Trust No. 113573, filed a breach of lease claim against Dr. Carlyn J. Malik individually and Carlyn J. Malik, M.D., S.C. The complaint for breach of lease was dismissed without prejudice for failure to prosecute and is not at issue in the instant appeal. Carlyn J. Malik, Cynthia Krystozek, Chester Obrochta and Pamela Kufahl (plaintiffs) then filed a third-party complaint for personal injuries against Kiannosh Jafari, Soussan Jafari, George Olson, Swissler Brothers Plumbing, Inc., Jack Swissler, and 3M Company (defendants). Following discovery, the trial court granted defendants' motion to bar plaintiffs' expert witnesses and then granted defendants' motions for summary judgment. Plaintiffs now timely appeal the trial court's order barring their expert witnesses and granting summary judgment in favor of defendants. In addition, defendants Jack Swissler and Swissler Brothers Plumbing, Inc., have filed a cross-appeal contending that the trial court should have granted summary judgment in their favor on the additional ground that plaintiffs could not show proximate cause between plaintiffs' injuries and the actions of the Swissler defendants.

The pleadings, depositions, admissions, and affidavits on file show the following. Plaintiff Dr. Carlyn Malik opened an otolaryngology practice in May 1991 in a suite of offices on the second floor of the Oak Brook Surgical Centre (Centre). Dr. Malik divided her time between her office at the Centre and her office in Naperville, Illinois. Defendants Kiannosh Jafari and Soussan Jafari (the Jafaris) were the beneficial owners of the Centre through a land trust. Malik employed plaintiffs Cynthia Krystozek and Pamela Kufahl, and plaintiff Chester Obrochta was employed by defendants Kiannosh and Soussan Jafari to perform maintenance work at the Centre. In June 1991, an ethylene oxide (EtO) sterilizer, which is used to sterilize medical instruments, was installed on the first floor of the Centre. Defendants Jack Swissler and Swissler Brothers Plumbing, Inc., installed the pipes that vented the EtO to the roof of the Centre. Defendant 3M Company manufactured the EtO sterilizer, provided installation instructions for the venting system, and inspected the venting system after it was installed.

EtO is a colorless, flammable, and highly reactive compound. EtO gas is heavier than air and is odorless at concentrations of less than 700 parts per million. EtO exposure can cause injuries to the central nervous system, the peripheral nervous system, and the mucous membranes. The 3M Company installation guide for the sterilizer required that the termination of a copper vent line leading from the sterilizer to the rooftop be no closer than 25 feet from any fresh air source, although the guide provided that greater distances might be needed in some cases. The 25-foot distance requirement is 10 feet farther than the distance required under the Illinois Administrative Code (77 Ill. Adm. Code §205.1540(d) (eff. May 17, 1982)). From June 27, 1991, to June 1, 1992, 84 sterilization cycles were run, although the cycles were not run according to a fixed schedule. From June 1, 1992, to October 5, 1992, when Dr. Malik vacated her suite at the Centre, 16 sterilization cycles were run.

In June 1992, plaintiffs began complaining about odors and air quality problems in their suite. Dr. Malik described the odor as a "burning metal" smell and said that she noticed it on Tuesdays and sometimes on Thursdays. Dr. Malik also said that she observed gas venting into her suite. Krystozek said the odor was a "burning like" smell and also said she observed a haze coming from the ceiling. Kufahl said she saw a blue-green haze coming from the ceiling. Plaintiffs all suffered central nervous system damage, peripheral nervous system damage, and damage to their mucous membranes.

In response to plaintiffs' complaints, James Doumouras of Northwest Envirocon performed two surveys at the Centre on September 23, 1992, and on October 1, 1992. Doumouras took readings at the exhaust stack on the roof of the Centre, at the site of the sterilizer, and in two areas in Dr. Malik's suite. The sterilizer was running on September 23, 1992. Doumouras did not specifically test for EtO but did test for elevated levels of volatile organic compounds. Doumouras said that if there were elevated levels of EtO, they would have shown up in his tests. The tests showed no elevated levels of volatile organic compounds. In his summary of the surveys, however, Doumouras noted that "[v]isual inspection and measure procedure indicate that the surgical sterilizer unit exhaust stack and a major air handling unit intake are too close in proximity, causing sterilizer exhaust gases to be vacuumed into the path of the intake."

Chad Chariton, an employee of AMSCO, testified in his deposition that he tested the sterilizer and the ventilation system for any EtO leaks on August 28, 1992. Chariton said that the sterilizer was running and was ready to go into the exhaust phase before he did his testing. Chariton said that he used a leak detector to check the area around the sterilizer, in a storage area next to Dr. Malik's suite, at the exhaust pipe on the roof, 25 feet away from the exhaust pipe, and in a room in Dr. Malik's suite. Chariton said that only the exhaust pipe indicated the presence of EtO at a level between 1 and 25 parts per million. The permissible exposure limit under the Occupational Safety and Health Administration (OSHA) standards is 1 part per million over an 8-hour time-weighted average and a maximum of 5 parts per million over a 15-minute time period.

Finally, on October 29, 1992, an employee of OSHA conducted an inspection at the Centre pursuant to plaintiffs' complaints. The inspection indicated that there was no exposure to EtO.

On October 5, 1992, Dr. Malik vacated her office at the Centre. On February 27, 1996, plaintiffs filed their fourth amended complaint which alleged that the piping for the EtO sterilizer was improperly installed and did not adequately vent the EtO out of the Centre. Plaintiffs claimed that an outlet for the piping was placed in such a way that the EtO gas reentered the Centre and was inhaled by plaintiffs, causing neurological injuries. Plaintiffs alleged that beginning in June 1992 plaintiffs complained to defendants Jafaris and Olson concerning smells and air quality in their suite at the Centre but that no corrective action was taken. Plaintiffs also alleged that defendants Jack Swissler and Swissler Brothers Plumbing, Inc., carelessly and negligently installed the pipes and that defendant 3M Company carelessly and negligently failed to properly reinstall the EtO sterilizer and failed to completely check the ventilation system.

Plaintiffs disclosed two expert witnesses in support of their case, Fred Boelter, an industrial hygienist and environmental engineer, and Dr. Stephen Hessl, an occupational medicine physician. Boelter's opinion was that a mansard-style screen around the Centre's roof parapet obstructed the air flow over the roof and restricted air circulation on the roof. The mansard screen raised the effective height of the roof so that the discharge stacks and the intakes should have been higher. Boelter also said that the positioning of the EtO vent line and the local exhaust duct below the top of the mansard screen inhibited the dilution and dispersion of the EtO discharged on the roof so that EtO was entrained and circulated into Dr. Malik's office. Dr. Hessl's opinion, based upon plaintiffs' complaints of exposure to EtO and upon Boelter's report, was that plaintiffs suffered from EtO toxicity.

Defendants filed a motion to bar plaintiffs' expert witnesses on the ground that their opinions were based upon mere speculation, guess, and conjecture and, thus, were unreliable and inadmissible. Defendants claimed that there was no factual basis to support Boelter's opinion that EtO was entrained into the fresh air intake and circulated into Dr. Malik's office. Defendants argued that because Boelter did not perform any calculations or do any testing to support his hypothesis, his opinion was merely a guess. In addition, defendants claimed that Dr. Hessl's opinion was mere guess and conjecture because he relied on Boelter's report to support his opinion that plaintiffs were exposed to EtO. Defendants noted that Dr. Hessl had testified in his deposition that he would not have considered EtO toxicity in examining plaintiffs if he had not been told that plaintiffs had been exposed to EtO.

As noted, the trial court granted defendants' motion to bar plaintiffs' experts. The trial court then granted defendants' motions for summary judgment on the ground that without expert testimony plaintiffs could not prove proximate cause. In granting defendants' motion to bar, the trial court held that the essential issue was whether the opinions of Boelter and Hessl met the minimum requirements of reliability under Illinois law. With regard to Boelter, the trial court stated that he could only speculate concerning his theory of negligent entrainment and circulation of the EtO and concerning his theory that plaintiffs may have been exposed to some undetermined concentration of EtO gas. Relying on Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5th Cir. 1996), and Gyllin v. College Craft Enterprises, Ltd., 260 Ill. App. 3d 707 (1994), the trial court concluded that plaintiffs' expert testimony, at minimum, should have shown the harmful level of exposure to EtO and that plaintiffs were exposed to that level of EtO, in order to sustain their burden of proof. The trial court found that Boelter's opinion lacked an adequate foundation and thus was speculative. With regard to Dr. Hessl, the trial court noted that his opinion was supported in a large measure by Boelter's opinion and also found that the basis of his opinion was that there was a temporal relationship between the exhaust system, the fresh air intake system into Dr. Malik's office suite, and plaintiffs' presence in that suite. The trial court held that a temporal relationship was insufficient to prove proximate cause.

On appeal, plaintiffs raise several arguments concerning the proper standard to apply in admitting or excluding expert testimony. Plaintiffs contend that the trial court erred in applying the standard set forth in City of Chicago v. Anthony, 136 Ill. 2d 169 (1990), and argue that the trial court should have applied the standard set forth in Melecosky v. McCarthy Brothers Co., 115 Ill. 2d 209 (1986). We need not decide whether the cases are mutually exclusive, however, as the supreme court in both cases held that the facts and data upon which an expert relies should be a type reasonably relied upon by experts in that field. See Anthony, 136 Ill. 2d at 186; Melecosky, 115 Ill. 2d at 216. Under either decision, the issue in this case is ...


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