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Wallis v. Townsend Vision

August 13, 2009

KIMBERLY WALLIS, PLAINTIFF,
v.
TOWNSEND VISION, INC., DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge

OPINION

Pending before the Court are several motions in limine.

I.

(A)

Plaintiff Kimberly Wallis has filed a motion in limine which pertains to the conduct of Cargill Meat Solutions Corporation or any of its employees or agents. The Plaintiff asks the Court to preclude Defendant Townsend Vision, Inc., d/b/a Townsend Engineering Company, its witnesses and its lawyers from testifying, arguing, referencing or otherwise mentioning before the jury by statement, innuendo, exhibit, or otherwise, any reference to the conduct of her employer, Cargill Meat Solutions Corporation, or any of its employees or agents, as being the cause of the Plaintiff's alleged injuries or damages.

The Plaintiff's two-count amended complaint includes claims for strict liability and negligence. Wallis seeks to prevent Townsend from attempting to introduce evidence that Cargill, its employees or agents were negligent in some fashion with regard to the supervision of other employees at the work site. Additionally, Wallis anticipates Townsend will argue that the actions of her co-worker and Cargill's employee, Ismael Rivera, were a proximate cause of her injury.

Wallis notes that Townsend has not filed a cross-claim seeking contribution from Cargill or Rivera alleging any of the above acts as being negligent acts or omissions. Wallis asserts that the aforementioned facts or allegations of negligence on Cargill's part are irrelevant and immaterial to any issue, given that neither Cargill nor any of its employees have been named as a third party defendant in the case and will not be named on the verdict form. However, the conduct of a plaintiff or a third party can be relevant to the issue of proximate cause in product liability cases. See Korando v. The Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 345 (1994).

Townsend opposes Wallis's motion and claims that Cargill's conduct and that of its employees is admissible on the issues of causation and lack of product defect. It asserts that Cargill's conduct and that of its employees is also relevant because Wallis claimed in a sexual harassment suit that Cargill's conduct caused the accident. Townsend alleges that it is entitled to present evidence of these prior inconsistent statements at trial, in order to show that something other than a product defect caused Wallis's accident. Townsend further contends that the record contains substantial evidence that Wallis claimed the sexual harassment conduct of Rivera, and Cargill's failure to stop it, "distracted" her and caused her to put her hand into the machine part. Although it acknowledges that Cargill will not be listed on the jury verdict form and the jury will not assess a percentage of the fault to Cargill, Townsend contends that it should not be precluded from arguing that Cargill's conduct, along with Wallis's inattention, "caused" her accident. Townsend asserts, moreover, that it should not be barred from presenting evidence that might help the jury conclude that its product was not defective, or that any defect was not the proximate cause of the accident.

The Court agrees that some of this evidence may potentially be relevant to the issue of causation and lack of product defect. In its answer, Townsend denied the specific allegations pertaining to Wallis's strict liability and negligence claims. Thus, Townsend has denied that its product proximately caused Wallis's accident. Townsend should not be precluded at trial from asserting alternative theories for the accident when it has denied liability from the beginning of this lawsuit.

Accordingly, although Cargill will not be listed on the jury verdict form, Townsend is not barred from presenting evidence or argument that reasons other than product defect or its own negligence contributed to the accident. Wallis's motion will be denied in part.

(B)

Wallis also seeks to prevent any argument that Cargill officials were negligent in offering Wallis, an operator of the Townsend Model 7600 Skinning Machine, the use of a smaller size Best Glove, which was not recommended by Townsend. Moreover, she expects that Townsend will argue that this glove was a cause of the injury because it was different than the glove that it recommended, in that it allows the hand to be caught and pulled into the skinning machine.

Townsend told the meat processing companies who purchased its product that if the operators were going to wear gloves, they should only wear the gloves that it had recommended. Wallis asserts that this is not enough because Townsend should have known that some of its meat processor customers would supply or allow their employees to wear gloves other than those recommended by Townsend. Wallis notes that Townsend cannot delegate to another company its duty to warn of an unreasonably dangerous condition. Turney v. Ford Motor Co., 94 Ill. App.3d 678, 684 (1st Dist. 1981).

Steve Cate, the Vice President in charge of developing the Townsend 7600 Skinning Machine, testified that the Technical Manual provided that if the operators of the machine were to wear a glove, they should wear only the glove designated as Part No. 17235. Townsend's practice was to send two manuals to purchasers of skinning machines. One would be sent via registered mail to the plant manager. The other is sent with the machine. Cate testified that Townsend's instructions are for operators to read the manual. There are no warnings on the machine with respect to which gloves should be worn. However, the machine did include a warning advising the operator to read the manual before operating the machine. Wallis contends that this warning is inadequate because (1) it did not advise the operator of the risk involved in wearing a different glove; (2) it did not warn her to only use the Best Glove 67 NFW-10; and (3) the warning was etched into the skinner and not visible to the operator of the machine. Wallis and others who operated the skinner said that they never saw this warning.

Cate also testified that Townsend sales representatives would visit the Cargill Plant on a regular basis and would walk through the processing area and view the operation of the Townsend machines. If they saw an employee wearing something other than the recommended glove, they were to report it to Townsend and Cargill as an unsafe work practice and tell Cargill that its employees should wear only the recommended glove. Additionally, Cate testified that the Best Glove 67 NFW-10 did "not guarantee protection from getting cut or being caught by moving machinery." It would merely minimize injury.

Although the machine itself did not include a warning about gloves, the Court concludes that Townsend took sufficient steps to warn potential users about which gloves should be used when operating the skinning machines. Townsend did not simply delegate this duty to Cargill. Moreover, Townsend was not really in a position to ensure that Cargill employees read the manual before operating the skinners. Accordingly, Townsend should not be precluded from raising this argument. The Court will deny Wallis's motion.

II.

Wallis has also filed a motion requesting that the Court bar any mention of her worker's compensation case against Cargill Meat Solutions. Townsend acknowledges that this evidence is generally inadmissible and does not oppose the motion. However, Townsend cites two examples of when such evidence may be admissible. Pursuant to Federal Rule of Evidence 801(d), if Wallis made prior inconsistent statements during her worker's compensation case, those statements would be admissible. The second instance is if Wallis were to "open the door" to such evidence.

The Court will allow Wallis's unopposed motion. If one of the exceptions noted above arises at trial, the Court will consider the evidentiary issues at that time.

III.

Wallis has filed a motion in limine asking the Court to preclude Townsend, its witnesses and lawyers from testifying, arguing, referencing or otherwise mentioning before the jury by statement, innuendo, exhibit, or otherwise, any reference to (1) the "fact that Plaintiff submitted to an independent medical exam by a psychiatrist, Wayne Stillings, that was demanded by her employer Cargill in her workers compensation case against Cargill and that she was given psychological tests by an unknown psychologist, the results of these tests or reports of Dr. Stillings;" and (2) that Wallis filed a sexual harassment complaint against her employer Cargill, or that Cargill or any insurance agency refused to pay for certain treatments and medications for Plaintiff.

Townsend has no opposition to the motion as it relates to Dr. Stillings. It will not call Dr. Stillings as a witness. Any reference to Dr. Stillings in Dr. Packman's deposition may be excised. Townsend further states that it does not intend to offer evidence that the costs of her psychological treatment were paid for by worker's compensation insurance.

Townsend objects to the motion to the extent that Wallis seeks to exclude evidence of her Title VII sexual harassment lawsuit against Cargill. Townsend states that it will assert in subsequent filings that those matters are relevant because in that case (and when it was her benefit to do so), Wallis claimed that Cargill's conduct caused the accident.

The Court will allow Wallis's motion, to the extent that she seeks to exclude any evidence that she submitted to an independent medical exam by Dr. Stillings. No reference to this exam or the tests or reports of Dr. Stillings will be permitted. Moreover, any reference to Dr. Stillings in Dr. Packman's deposition transcript may be excised. The Court will rule on the request regarding the sexual harassment complaint with respect to Cargill when that issue is briefed.

IV.

(A)

The Plaintiff has filed a motion in limine regarding the testimony of J. Dan McCausland and other Townsend witnesses. The motion seeks to prevent any evidence that injuries using skinning machines occur less than once per every 4.7 million operations. McCausland's report states as follows:

Work methods (as described above) have proven highly reliable as safety measures for operating open top skinning machines. This has been the case for over 60 years in the meat industry. During calendar year 2006 (most recent year for which figures are available) hog slaughter in the U.S. totaled, 104,845,000 animals. An average of six (6) pieces from each hog carcass will normally be skinned, typically 74% (or more) of which are skinned on open top machines; or, approximately 471,800,000 pieces skinned on this type of equipment (this figure does not include beef operations, which use similar/identical equipment). Accidents with severe injuries, such as those incurred by Ms. Wallis, are quite rare. Severe injuries on this equipment are, in fact, a distinct anomaly, occurring less than once per 4.7 million machine cycles (pieces skinned). Clearly, this indicates that safe operation of open top skinners is the industry norm. Performance results--hundreds of millions of injury free work cycles completed annually--further indicate that the hierarchy of controls approach applied to guarding skinning machines is quite effective.

OSHA citations on open top skinners have also been quite rare, especially for a piece of equipment in common use for the entire period of time that OSHA has been in existence. OSHA inspectors have been in meat plants on hundreds of occasions over the past 35 years, and have seldom cited skinning machine operations for "machine guarding" violations.

McCausland is an employee of the American Meat Institute ("AMI"), the National Trade Association for Meat Processors and Manufacturers of Meat Processing Equipment. Townsend and Cargill are members of AMI.

According to his affidavit, McCausland has served as Director, Worker Safety and Human Resources, for the AMI since 1999. In that capacity, he is responsible for all member issues with occupational safety and human resources. Consequently, McCausland states that he keeps abreast of any and all safety issues in the industry, including but not ...


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