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Redelmann v. Claire Sprayway

August 16, 2007

FRITZ REDELMANN, PLAINTIFF-APPELLANT,
v.
CLAIRE SPRAYWAY, INC., OLIN CORPORATION, REXFORD RAND CORPORATION, PVS CHEMICALS (ILLINOIS), INC., ROWELL CHEMICAL CORPORATION, SEELER INDUSTRIES, INC., ATOCHEM NORTH AMERICA, INC., BASF WYANDOTTE CORPORATION, AND PHIBRO CHEMICALS, INC., DEFENDANTS-APPELLEES, AND (ALEXANDER CHEMICAL CORPORATION, THE BUTCHER COMPANY, INC., CARDINAL CHEMICAL CORPORATION, CLOROX PRODUCTS MANUFACTURING COMPANY, C.P. SALES COMPANY, ECOLAB, INC., K.A. STEEL CHEMICALS,) INC., NYCO PRODUCTS, INC., PPG INDUSTRIES, INC., STEVENS CHEMICAL COMPANY, SUNNYSIDE CORPORATION, S.C. JOHNSON & SON, INC., S.C. JOHNSON COMMERCIAL MARKETS, INC., WEST SANITATION SERVICES, INC., HYSAN CORPORATION, WEPAK CORPORATION , CANBERRA CORPORATION, VELSICOL CHEMICAL CORPORATION, SELECT SPECIALTY SALES, L.L.C., AND CHEMICAL PACKAGING CORPORATION, DEFENDANTS.



Appeal from the Circuit Court of Cook County. No. 98 L 11350 Honorable Lynn M. Egan, Judge Presiding.

The opinion of the court was delivered by: Justice Neville

Published opinion

These consolidated appeals arise from the entry of an order on September 10, 2002, that denied Fritz Redelmann's motion requesting that the trial court reconsider its orders of May 10, 2002, and June 7, 2002. In the May 10, 2002, order, the trial court granted with prejudice defendant Claire-Sprayway, Inc.'s (Claire-Sprayway) motion under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2004)) to dismiss the conspiracy counts in Redelmann's sixth amended complaint directed at Claire-Sprayway. The trial court also included the other defendants that joined in Claire-Sprayway's motion, BASF Wyandotte Corp. (BASF), Olin Corporation (Olin), Clorox Products Manufacturing Co. (Clorox), and Rexford Rand Corporation (Rexford). In the June 7, 2002, order, the trial court granted with prejudice defendants' section 2-615 motion to dismiss the conspiracy counts in Redelmann's sixth amended complaint against Atofina Chemical, Inc. (Atofina), Seeler Industries, Inc. (Seeler), Rowell Chemical Corp. (Rowell), PVS Chemicals, Inc. (PVS), and Phillip Brothers Chemicals, Inc. (Philbro).

Redelmann presents the following issues for our review: (1) whether the trial court erred (a) by dismissing the conspiracy counts of the sixth amended complaint with prejudice and (b) by denying the motion to reconsider the aforementioned dismissal order; (2) whether the trial court erred in declining to grant Redelmann's request for leave to amend the conspiracy counts against Claire-Sprayway and Atofina; and (3) whether the trial court erred in failing to lift a stay on discovery and order Claire-Sprayway and Atofina to comply with outstanding discovery requests. For the reasons that follow, we affirm.

BACKGROUND

Redelmann was employed from May 1990 through May 1998, as a custodian, maintenance and repair worker with the Rolling Meadows Park District (Park District). In October 1998, plaintiff filed his initial complaint for injuries he allegedly sustained because of exposure to chemical products during his employment. Redelmann's theory of liability was based on his claim that, as a maintenance worker, he was repetitively exposed to hydrochloric acid and other chemicals while cleaning floors, repairing swimming pool equipment and performing other job duties which caused him to develop conditions including but not limited to neurobehavioral dysfunction, degenerative brain disease, and lung damage.

On February 15, 2001, Redelmann filed a fifth amended complaint that alleged that both Claire-Sprayway and Atofina, along with numerous defendants*fn1 , conspired to conceal and affirmatively misstate the hazards of exposure to hydrochloric acid and other chemicals and that Redelmann's injuries were a direct and proximate result of that conspiracy. Redelmann structured his fifth amended complaint by including a conspiracy count against one defendant, BASF Wyandotte Corporation, which was incorporated by reference in conspiracy counts against Claire-Sprayway, Atofina and others unrelated to the issues raised in this appeal. The conspiracy count in the fifth amended complaint alleged as follows:

"7.) On April 22, 1987, employees of defendants BASF, Butcher, Canberra, Claire[-Sprayway], Clorox, Ecolab, Olin, PPG, S.C. Johnson & Sons, S.C. Johnson Commercial Markets, Velsicol and Wepak met with Douglas Fratz and other employees of the Chemical Specialties Manufacturers Association, 1913 Eye St., N.W., Washington, D.C., and by teleconference, and entered into a common scheme and agreement to create the Hydrogen Chloride Joint Venture for the purpose of misleading government regulators and evading governmental controls on hydrogen chloride.

8.) As of January 21, 1988, each of the co-defendants Elf Atochem [ATOFINA], Jones Hamilton, Phibro, Rexford Rand, PVS, Rowell and Seeler joined in the conspiracy to mislead government regulators and evade governmental controls on hydrogen chloride.

9.) By February 12, 1991, each of the co-defendants Butcher, Clorox, Ecolab, Elf Atochem [Atofina], Olin, Phibro, PPG, PVS, Rexford Rand, Rowell, Seeler and Velsicol joined in the conspiracy to suppress and misstate data on hydrogen chloride, and each defendant understood the general objectives of the scheme to use Hydrogen Chloride Steering Committee to conceal the hazards of hydrogen chloride, and each defendant accepted them, and agreed, explicitly or implicitly, to do its part, and to further those objectives.

10.) As of June 1, 1994, each of the co-defendants Butcher, Clorox, Ecolab, Elf Atochem [Atofina], Olin, Phibro, PPG, PVS, Rexford Rand, Rowell, Seeler and Velsicol joined the conspiracy to use the Hydrogen Chloride Joint Venture and Steering Committee to conceal and misstate the hazards of hydrogen chloride, understood the objectives, and each defendant accepted them, and agreed, explicitly or implicitly, to do its part, and to further those objectives.

11.) By June 15, 1994, each of the co-defendants Butcher, Clorox, Ecolab, Elf Atochem [Atofina], Olin, Phibro, PPG, PVS, Rexford Rand, Rowell, Seeler and Velsicol had joined the conspiracy to use the Hydrogen Chloride Steering Committee and Hydrogen Chloride Joint Venture to deceive government regulators to suppress information on the hazards of hydrogen chloride, and each defendant accepted them, and agreed, explicitly or implicitly, to do its part, and to further those objectives.

12.) From April 22, 1987 through May 12, 1998 the defendants BASF, Butcher, Canberra, Claire-Sprayway, Clorox, Ecolab, Elf Atochem [Atofina], Hysan, Jones Hamilton, Nyco, Olin, Phibro, PPG, PVS, Rexford Rand, Rowell, S.C. Johnson & Sons, S.C. Johnson Commercial Markets, Seeler, Velsicol and Wepak assisted and enabled the conspiracy."

On July 9, 2001, the trial court dismissed the conspiracy counts of the fifth amended complaint because it was "factually insufficient as it contains mere conclusions that the defendants joined in the conspiracy and understood its general objectives: this is not sufficient." The trial court upheld the conspiracy counts against Claire-Sprayway and others, holding:

"Plaintiff has alleged: an agreement between various defendants; to commit the unlawful act of misrepresenting the dangers of HCL through inadequate labeling, misinformation, etc.; and that these acts caused harm to the Plaintiff. These are the necessary elements to be pleaded to sustain a cause of action for conspiracy. Plaintiff also alleges the dates and places where the defendants allegedly met to discuss the conspiracy, as well as the individuals present at the meetings."

On November 20, 2001, Redelmann filed a sixth amended complaint which again alleged a conspiracy count against defendants S.C. Johnson & Sons and S.C. Johnson Commercial Markets and incorporated the allegations in the count by reference into the counts against Claire-Sprayway, Atofina and other defendants. The sixth amended complaint did not adopt or reference the allegations contained in the fifth amended complaint. The conspiracy allegations in the sixth amended complaint are as follows:

"9.) On January 16, 1990, at the headquarters of the Chemical Specialties Manufacturers Association (CSMA) at 1913 Eye St., N.W., Washington, D.C., Hydrogen Chloride Steering Committee members, Canberra *** Drackett *** Diversey *** Lehn & Fink Products *** Boyle-Midway *** Spartan Chemical *** Creative Chemical and *** Oxford Chemicals entered into a common plan to illegally conceal and affirmatively misstate the toxicity and exposure hazards of hydrogen chloride.

***

12.) On February 23, 1990 *** Diversey Wyandotte *** Drackett *** Spartan Chemical *** Zep Manufacturing *** Carroll Co and Boyle-Midway met at the Hotel Lombardy, Washington, D.C. and conspired to conceal and ...


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