Elam v. Lincoln Elec. Co.

841 N.E.2d 1037

Lawrence E. ELAM, Plaintiff-Appellee, v. LINCOLN ELECTRIC COMPANY, Hobart Brothers Company, and Airco/The Boc Group, Inc., Defendants-Appellants.

No. 5-04-0120.

Appellate Court of Illinois, Fifth District.

December 20, 2005.

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Richard C. Godfrey, P.C., Helen E. Witt, Michelle H. Browdy, Barry E. Fields, Kirkland & Ellis, LLP; D. Patterson Gloor, Morgan M. Strand, Donald F. Ivansek, Cassiday, Schade & Gloor, LLP, Chicago; Jeffrey S. Hebrank, Burroughs, Hepler, Broom MacDonald, Hebrank & True, Edwardsville, for Appellants.

Robert Wm. Bosslet, Jr., Bosslet & O'Leary, Ltd., Granite City; Robert G. McCoy, Cascino Vaughan Law Offices, Ltd., Ashland, Chicago, for Appellee.

Justice GOLDENHERSH delivered the opinion of the court:

Plaintiff, Lawrence Elam, who suffers from a central nervous system injury diagnosed as Parkinson's disease, filed a negligence and products liability action against defendants, Lincoln Electric Company (Lincoln Electric), Hobart Brothers Company, and Airco/The BOC Group, Inc. (Airco) manufacturers of welding rods. Plaintiff alleged defendants failed to investigate the harms they were aware of relating to manganese in welding rods and failed to warn of those harms. Plaintiff claimed the failure to investigate and the failure to warn caused his Parkinson's disease.

Plaintiff began working for his employer, Union Electric Company, which later became Ameren Corp. (Ameren), in 1967. He held several jobs, including machinist apprentice, pipefitter, and ultimately, welder. Over the course of his career, he was exposed to intense welding fumes, oftentimes working with a number of welders in enclosed, poorly ventilated spaces. Welding fumes contain manganese, a known neurotoxin that penetrates the blood-brain barrier and harms the basal ganglia. While plaintiff was provided with protective gear, he never wore it due, in part, to the confined spaces in which he worked. Plaintiff could not recall any welders who used the protective gear. In 1995, plaintiff was diagnosed with Parkinson's disease by Dr. Joseph Black, a neurologist, after experiencing classical symptoms of the disease, including fatigue, tremors, stiffness, and a mask-like face. In 1996, plaintiff retired from Ameren.

Within the welding industry, manufacturers, including defendants, control and dominate safety and health activities. They do so by creating, within trade organizations in which they are members, committees, subcommittees, and task forces assigned to investigate health hazards in the welding industry and to write and publish precautionary product information. In 1967, a warning label was placed on welding rod containers, stating, "Welding may produce a concentration of fumes and gases hazardous to health." The warning cautioned users to avoid breathing the fumes and gases and use proper ventilation. The welding industry was specifically advised by the American Welding Society (Society), of which all defendants are members, to study the problem of chronic manganese poisoning, but it failed to follow the recommendation.

In 1979, the warning was updated but again failed to include any mention of manganese, even though substantial evidence existed showing that manganese is toxic if inhaled. In 1986, welding rod manufacturers added a product sticker which noted that certain chemicals, including manganese, may be hazardous. In 1991, the product sticker was updated as follows: "Warning, the following chemicals may be hazardous during welding: Iron, manganese, silicon, titanium dioxide. Lung and nervous system damage may result from overexposure." These warnings were placed on the cartons that contained the welding rods. The evidence showed that the welders seldom saw the cartons because the rods had been already removed from the cartons by the time they were used by the welders.

On July 27, 2001, plaintiff filed his complaint, in which he alleged defendants (1) were negligent in failing to investigate the health hazards associated with welding and in failing to provide adequate warnings with their mild steel welding rods and (2) should be held strictly liable because of the alleged lack of investigation and adequate warnings. After a four-week trial in the circuit court of Madison County, the jury returned a $1 million general verdict in favor of plaintiff. The trial court entered a judgment in favor of plaintiff in the amount of $925,000, reflecting a setoff for a prior settlement. On appeal, defendants argue the trial court erred as a matter of law in refusing to enter a judgment in favor of defendants because (1) defendants in fact gave warnings, which plaintiff admitted he did not read, and thus the alleged failure to warn did not cause plaintiff's injuries and (2) plaintiff was diagnosed with Parkinson's disease, a disease for which medical science has yet to identify a cause, and there is no credible scientific literature or expert testimony linking manganese in welding fumes to plaintiff's Parkinson's disease. In the alternative, defendants contend they are entitled to a new trial due to numerous alleged errors and/or abuses of discretion on the part of the trial court. We affirm.

In this appeal, defendants filed a motion to strike plaintiff's brief or, in the alternative, to strike certain portions of plaintiff's brief for a failure to comply with Supreme Court Rule 341 (188 Ill.2d R. 341) and for relying on materials not presented at the trial. This court denies defendants' motion. Because the record is voluminous and defendants raise numerous complex issues and subissues, this court will address the necessary facts regarding each issue and subissue as they arise.

I. DIRECTED VERDICT OR JUDGMENT NOTWITHSTANDING THE VERDICT

The first major issue raised in this appeal is whether the trial court erred in failing to direct a verdict or enter a judgment notwithstanding the verdict (judgment n.o.v.) in favor of defendants. We point out that the standard of review in deciding whether a trial court erred in refusing to direct a verdict or enter a judgment n.o.v. is rigorous. A directed verdict or judgment n.o.v. is only proper in a case in which all the evidence when viewed in the light most favorable to the nonmoving party so overwhelmingly favors the movant that no contrary verdict based upon the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14 (1967). Pedrick emphasizes that parties have a right to have substantial factual disputes resolved by the jury.

A. Failure to Read Warnings

Defendants argue the trial court erred in denying their motions for a directed verdict or a judgment n.o.v. on plaintiff's claim that defendants failed to adequately warn of a causal nexus between fumes from mild steel welding rods and Parkinson's disease because plaintiff did not and could not show that any inadequacy in the warnings provided by defendants proximately caused his Parkinson's disease. Defendants insist that because plaintiff knew warning labels were present on defendants' products but chose not to read them, plaintiff's failure-to-warn claim fails as a matter of law. Plaintiff responds that defendants' obscure warnings and acknowledged failure to supply warnings to welders show the trial court was correct in denying defendants' motions.

Defendants rely on Kane v. R.D. Werner Co., 275 Ill.App.3d 1035, 212 Ill.Dec. 342, 657 N.E.2d 37 (1995), in which our colleagues in the First District held that a plaintiff cannot maintain a products liability action premised on a failure-to-adequately-warn theory where a plaintiff admits he never read the given warnings. We find Kane distinguishable from the instant case. In Kane, the worker's argument was not that the inadequacies of the warning labels prevented him from reading them but, rather, that the content of the labels was inadequate. The Kane court determined that because the plaintiff failed to read the warnings, any inadequacy in the content of the warnings could not have proximately caused the plaintiff's injuries and the trial court properly granted a summary judgment. Kane, 275 Ill. App.3d at 1037, 212 Ill.Dec. 342, 657 N.E.2d at 39. The Kane court specifically agreed, however, that "`a plaintiff who does not read an allegedly inadequate warning cannot maintain a negligent-failure-to-warn action unless the nature of the alleged inadequacy is such that it prevents him from reading it.'" (Emphasis added.) Kane, 275 Ill.App.3d at 1037, 212 Ill.Dec. 342, 657 N.E.2d at 39 (quoting E.R. Squibb & Sons, Inc. v. Cox, 477 So.2d 963, 971 (Ala.1985)). Here, the evidence indicates defendants packaged the relevant warnings in a way that virtually guaranteed plaintiff and others within the welding trade would not read them.

The evidence at the trial showed that the warnings were placed on the cartons in which the welding rods were distributed. Testimony was presented that welders tended not to see the cartons. For example, a letter dated June 7, 1967, was introduced into evidence. In that letter, the chief engineer for the electrode division of defendant Lincoln Electric explained that many welders who used the electric welding rod would never see the container on which the warning label appeared. Dr. Zimmerman, an expert in industrial hygiene, reviewed the warning labels and testified that the first warning label issued in 1967 was not effectively communicated because it was only placed on the welding rod can, not on the rod. Dr. Zimmerman explained that because the label was only on the can, the welders would often not even see the warning because they tended to get the rods from a location other than the can.

Dr. Zimmerman also explained that the warning label was not effectively communicated because it was directed only toward welders, and not toward welders' assistants or other bystanders who are within the plume of the welding fumes. Dr. Zimmerman...