Henry v. Panasonic Factory Automation Company

SUPREME COURT CASES

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State: Illinois

Court: 4th District Appellate

Docket No: 4-09-0057 Rel

Case Date: 10/22/2009

Preview:Filed 10/22/09

NO. 4-09-0057 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

KEITH HENRY and SUE HENRY, ) Appeal from Plaintiffs-Appellants, ) Circuit Court of v. ) Clark County PANASONIC FACTORY AUTOMATION COMPANY, ) No. 04L12 Defendant-Appellee, ) and ) PANASONIC FACTORY AUTOMATION COMPANY, ) Third-Party Plaintiff) Appellee, ) v. ) Honorable TRW AUTOMOTIVE U.S., LLC, ) Tracy W. Resch, Third-Party Defendant. ) Judge Presiding. _________________________________________________________________ JUSTICE MYERSCOUGH delivered the opinion of the court: In June 2004, plaintiffs, Keith and Sue Henry, filed a two-count complaint against defendant, Panasonic Factory Automation Company (Panasonic), alleging Keith was injured at work while using equipment designed and manufactured by Panasonic that was unreasonably dangerous. Plaintiffs appeal from the trial

court's December 2008 decision to grant Panasonic's motion for summary judgment. We affirm. I. BACKGROUND On June 30, 2004, plaintiffs filed a two-count complaint against Panasonic. In count I, Keith alleged Panasonic

was engaged in business as a manufacturer of production machinery and equipment, including an MSH Model #1 (MSH), which it sold under the trade name of "Serial #2576, 10 head machine, medium

size."

Sometime prior to July 4, 2002, Panasonic sold and

delivered an MSH to third-party defendant, TRW Automotive U.S., LLC (TRW). On July 4, 2002, Keith was employed by TRW. Keith's

job duties required him to use or operate the MSH.

According to

the complaint, the machine was unreasonably dangerous from the time it left Panasonic's possession to and including the date of the occurrence, in that (1) it did not have a proper safety guard, (2) the safety gate did not prevent the machine from operating, and (3) it did not have a safety device to prevent injury to the operator. As a direct result of one or more of the

foregoing unreasonably dangerous conditions, Keith's leg and knee were severely injured when he was struck in the leg while operating the machine. Keith alleged he has (1) suffered and will

continue to suffer for the remainder of his life, (2) spent and will be required to further spend large sums of money for medical and hospital care because of his injuries, and (3) been prevented from working and will be deprived of income he otherwise would have earned. In count II, Sue repeated the allegations Keith made in count I and additionally alleged she has suffered loss of consortium with her husband. On June 30, 2006, Panasonic filed a two-count thirdparty complaint against TRW, alleging (1) negligence and (2) spoliation of evidence. - 2 -

On May 31, 2007, Keith filed his supplemental answers to interrogatories. Pursuant to Panasonic's request for disclo-

sure of the names and addresses of all witnesses expected to offer testimony at the time of trial pursuant to Supreme Court Rules 213(f)(1), (f)(2), and (f)(3) (210 Ill. 2d Rs. 213(f)(1), (f)(2), (f)(3)), Keith identified Dr. Charles Roberts as his expert who would testify that the machine was unsafe. not allege any of his other witnesses were experts. On August 8, 2008, Panasonic filed a motion for summary judgment in which it alleged Dr. Roberts identified one alleged defect with the machine. Specifically, the motion alleged Dr. Keith does

Roberts opined that the design of the machine was dangerous because it required the operator to remain inside the machine to determine if adjustments to the cutter bar were effective. Because the uncontested facts showed that an operator need not be inside the machine to determine if the cutter bar had been adjusted correctly, Panasonic contended it was entitled to summary judgment. In support of its motion for summary judgment,

Panasonic filed a statement of uncontested material facts, which was adopted (with one exception discussed below) by plaintiffs. The following facts that relate to the accident that resulted in Keith's injury are taken from the statement of uncontested material facts. On July 4, 2002, Keith was injured while observing and - 3 -

adjusting the cutter blade on the MSH, a high-speed placement machine, at TRW's plant in Marshall, Illinois. the MSH to TRW. At the time of the accident, Keith and Julie Price, a fellow TRW employee, were operating the MSH. Keith "started to Panasonic sold

work on the cutter, cut the power to the MSH, turned off the servo motors to the MSH, walked to the rear of the MSH, lowered the safety gate, entered the MSH, and began to adjust the cutter bar." Price turned on the MSH, and the Z carriage activated and Price then hit the emergency stop button to deAccording to the statement of uncontested

struck Keith.

energize the MSH.

facts, "[w]hile inside the MSH, [Keith] asked Price (who was standing in front of the MSH) to turn the power on to the machine so he could see if the cutter was working properly." (Plaintiffs

objected to this statement and maintained Keith "did not request power to the machine, only power to the cutter".) Keith had been trained not to energize the MSH while he, or any other operator, was inside the machine. A TRW opera-

tor engages in a dangerous practice if he or she energizes the MSH while in the area of the Z carriage. An individual can properly check the function of the cutter from outside the MSH. Keith had been trained to view the

cutter from outside the MSH after adjusting it to see if it was operating correctly. Keith would not have been injured had he - 4 -

observed the cutter from outside the MSH. Plaintiffs retained Dr. Charles Roberts as their expert witness to offer testimony concerning the alleged design defect of the MSH. "Dr. Roberts opined that the design of the MSH was

inherently dangerous because the adjustment of its cutter 'invites' the operator into the machine to observe the cutter bar." Specifically, Dr. Roberts stated the following during his deposition: "Well, what I did is I told him that I, it was my opinion

that the inherent adjustment of the cutter in this machine tended to invite the operator into a very hazardous location and required him to work on it and to make sure it was working probably in the machine, which in my opinion, is a hazardous operation." Dr. Roberts opined that the MSH was also inherently dangerous because an operator was required to remain in the area of the Z carriage of the MSH while it was running in order to observe the cutter. This is dangerous because it could cause the operator to These were the only opinions Dr.

be struck by the Z carriage.

Roberts offered as to the inherent danger of the MSH's design. Dr. Roberts acknowledged that the MSH would not be inherently dangerous if the operator could observe the cutter bar while standing outside the machine. Specifically, when asked if

it would change his opinion of whether the design of the machine was unsafe if it were "possible to adjust the cutter, step outside the machine, turn the machine on, and watch it or listen - 5 -

to it to see if it was operating correctly," Dr. Roberts responded that "[i]f it were possible to do that, I would say the machine would not be unsafe." An MSH operator can observe the

cutter bar after performing the adjustments on it while standing outside the machine. Dr. Roberts also acknowledged that the MSH would not be inherently dangerous if an operator could determine the cutter bar was working correctly by listening to the machine while standing outside of it. An MSH operator can stand outside the

machine and listen to the machine to determine if the adjustment of the cutter bar was effective. Dr. Roberts did not find anything wrong with the MSH's safety gate or guard. Dr. Roberts did not offer, and was not

prepared to offer, an opinion on whether (1) the MSH had a proper safety guard, (2) the safety gate prevented the machine from operating, or (3) the MSH had a safety device to prevent injury to the operator. In addition to the facts set forth above from the statement of uncontested material facts, plaintiffs maintain certain deposition testimony is relevant to the issues. However,

none of these witnesses are experts, and their testimony is therefore irrelevant to the issue presented by the trial court's decision to grant summary judgment. On December 2, 2008, the trial court held a hearing on - 6 -

Panasonic's motion for summary judgment.

On December 30, 2008,

the trial court granted Panasonic's motion for summary judgment. In so concluding, the court, citing Baltus v. Weaver Division of Kidde & Co., 199 Ill. App. 3d 821, 557 N.E.2d 580 (1990), stated "[o]pinion testimony of a qualified expert is necessary in the circumstances of this case to prove manufacturing negligence resulting in an unreasonably dangerous condition." The court

stated that plaintiffs identified Dr. Roberts as a person qualified to render an expert opinion. The court noted that in his

deposition, Dr. Roberts "identified one alleged defect in the MSH machine. He testified that the MSH is inherently dangerous

because the design of the machine requires (or invites) the operator to remain inside the machine to determine if adjustments made to the cutter blade or bar were effective." However, the

court noted that Dr. Roberts' opinion was based upon the incorrect assumption that it was necessary for Keith to be inside the MSH to determine if the cutter bar was properly adjusted. Moreover, Dr. Roberts stated that if that assumption was incorrect, his opinion would change and he would opine that the machine was not unsafe. The court concluded plaintiffs' other

witnesses were not experts and their opinions were personal opinions not based on any technical or scientific knowledge of manufacturing design. Further, plaintiffs did not submit evi-

dence of any other defective condition that existed at the time - 7 -

the MSH left Panasonic's control.

"In sum, there is no opinion

testimony by a qualified expert that a defective design of the MSH machine caused it to be inherently dangerous and caused the bodily injury." This appeal followed. II. ANALYSIS Summary judgment is appropriate only where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2004). "While

summary judgment aids in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and thus should be allowed only when the right of the moving party is clear and free from doubt." Ford v. Round Barn True Value, Inc., Summary

377 Ill. App. 3d 1109, 1116, 883 N.E.2d 20, 26 (2007).

judgment for the defendant is proper if the plaintiff fails to establish any element of the cause of action. Williams v. We

Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9 (2008).

review the trial court's ruling on a motion for summary judgment de novo. Williams, 228 Ill. 2d at 417, 888 N.E.2d at 9. To recover damages from a manufacturer under a productliability theory, a plaintiff "must prove his injury resulted from an unreasonably dangerous condition of the product that - 8 -

existed at the time the product left the manufacturer's control." Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 413, 681 N.E.2d 156, 158 (1997). Here, the trial court granted Panasonic-

's motion for summary judgment because plaintiffs had no opinion evidence from a qualified expert that a defective design caused the MSH to be unreasonably dangerous. "In a negligent defective[-]design case, the focus is on the conduct of the defendant, but in a strict[-]liability defective[-]design case, the focus is on the product." Blue v.

Environmental Engineering, Inc., 215 Ill. 2d 78, 95, 828 N.E.2d 1128, 1141 (2005). "[T]he threshold question of unreasonably

dangerous design is not whether the product could have been made safer, but whether it is dangerous because it fails to perform in the manner reasonably to be expected in light of its nature and intended function." at 586. Baltus, 199 Ill. App. 3d at 830, 557 N.E.2d

In Illinois, a party who "'sells any product in a

defective condition unreasonably dangerous to the user or consumer'" is subject to strict liability. Lamkin v. Towner, 138

Ill. 2d 510, 528, 563 N.E.2d 449, 457 (1990), quoting Restatement (Second) of Torts

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