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 Automa-
tion 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 com-
plaint 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 operat-
ing 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 consor-
tium with her husband.
On June 30, 2006, Panasonic filed a two-count third-
party 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. Keith does
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.
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. Panasonic sold
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
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
struck Keith. Price then hit the emergency stop button to de-
energize the MSH. According to the statement of uncontested
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 'in-
vites' the operator into the machine to observe the cutter bar."
Specifically, Dr. Roberts stated the following during his deposi-
tion: "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 re-
quired 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
be struck by the Z carriage. These were the only opinions Dr.
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 re-
sponded 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 quali-
fied 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 incor-
rect 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 incor-
rect, 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 plead-
ings, 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 law-
suit, 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.,
377 Ill. App. 3d 1109, 1116, 883 N.E.2d 20, 26 (2007). Summary
judgment for the defendant is proper if the plaintiff fails to
establish any element of the cause of action. Williams v.
Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9 (2008). We
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 product-
liability 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." Baltus, 199 Ill. App. 3d at 830, 557 N.E.2d
at 586. In Illinois, a party who "'sells any product in a
defective condition unreasonably dangerous to the user or con-
sumer'" 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 §402A, at 347-48 (1965). "A product may be
found to be unreasonably dangerous based on proof of any one of
three conditions: a physical defect in the product itself, a
defect in the product's design, or a failure of the manufacturer
to warn of the danger or to instruct on the proper use of the
- 9 -
product." Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 525,
901 N.E.2d 329, 335 (2008). Here, plaintiffs alleged a defect in
the MSH's design.
As stated, the trial court, relying on Baltus, granted
summary judgment in favor of Panasonic because there was no
opinion testimony by a qualified expert that a defective design
caused the MSH machine to be inherently dangerous and caused
bodily injury. "Products[-]liability actions *** often involve
specialized knowledge or expertise outside the layman's knowl-
edge. Manufacturing negligence resulting in an unreasonably
dangerous product seems particularly appropriate for expert
opinion." Baltus, 199 Ill. App. 3d at 834, 557 N.E.2d at 588-89.
The Baltus court analogized product-liability cases to those
involving medical malpractice. Baltus, 199 Ill. App. 3d at 835-
36, 557 N.E.2d at 589.
"Both types of cases involve specialized
knowledge that bear directly on the standard
of care in the community. While some in-
stances of medical malpractice need no expert
opinion that a doctor has fallen below the
standard of care (such as a case in which an
instrument is left in the patient after sur-
gery), expert opinion usually is required to
aid the jury in determining that the perti-
- 10 -
nent standard of care has been breached."
Baltus, 199 Ill. App. 3d at 836, 557 N.E.2d
at 589.
The court went on to state that not all cases of negligent
manufacture or design require expert opinion as to whether a
product is unreasonably dangerous. Baltus, 199 Ill. App. 3d at
836, 577 N.E.2d at 589.
In the instant case, the MSH is a specialized piece of
equipment, and the design and manufacture of the MSH involves
specialized knowledge. Therefore, we conclude plaintiffs cannot
establish a breach of the standard of care in this case without
expert testimony. Notably, in their brief, plaintiffs do not
dispute the assertion that expert testimony was needed to survive
summary judgment. Instead, plaintiffs maintain that Dr. Roberts'
expert testimony established a prima facie case that the MSH was
unreasonably dangerous.
In the case sub judice, plaintiffs' complaint alleged
the MSH was unreasonably dangerous because of defects in its
design. Specifically, paragraph 4 of the complaint alleged that
the MSH was unreasonably dangerous because (1) it did not have a
proper safety guard, (2) the safety gate did not prevent the
machine from operating, and (3) the machine did not have a safety
device to prevent injury to the operator. During Dr. Roberts'
deposition, Panasonic's attorney asked Dr. Roberts to look at
- 11 -
paragraph 4 of the complaint. The following exchange took place:
"Q. I want you to look at [p]aragraph
4A. Do you see that? It did not have a
proper safety guard.
A. That's correct.
Q. Do you have any opinion about whether
or not the MSH machine had a proper safety
guard?
A. I had not offered an opinion on that.
Q. And you are not prepared to today?
A. Not at the time, no.
Q. Well, you said not at the time. You
mean--
A. I mean, not at this time.
Q. Look at [s]ubparagraph B, the safety
gate did not prevent the machine from operat-
ing. I take it you have no opinion in that
regard as well?
A. That's right.
Q. And the machine did not have a safety
device to prevent injury to the operator. I
take it you have no opinion in that regard
either?
A. That's correct."
- 12 -
Therefore, plaintiffs' expert had no opinion regarding any of the
three specific allegations of design defect contained in plain-
tiffs' complaint. Instead of these three allegations, plain-
tiffs' brief focuses on Dr. Roberts' testimony that the MSH was
unreasonably dangerous because the design invited or required the
operator to remain inside the machine to determine whether the
adjustments made to the cutter bar were effective. However,
according to Panasonic's statement of uncontested material facts,
which plaintiffs adopted, Dr. Roberts admitted that the MSH would
not be inherently dangerous if an operator could observe the
cutter bar while standing outside the machine. Dr. Roberts also
admitted 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. The parties agree
that an MSH operator can both (1) observe the cutter bar and (2)
listen to the machine--while standing outside the machine--to
determine if the adjustments on the cutter bar were effective.
In light of Dr. Roberts' testimony, plaintiffs do not have an
expert opinion that supports any of their three specific allega-
tions of design defect in the complaint or the assertion that the
MSH is unreasonably dangerous because it invites or requires an
operator to be inside the machine while checking to see if the
adjustments made to the cutter bar were effective. Therefore,
plaintiffs have failed to set forth any evidence that the MSH was
- 13 -
unreasonably dangerous and, pursuant to Baltus, the trial court
properly granted summary judgment in favor of Panasonic.
Plaintiffs attempt to distinguish Baltus on the ground
that the plaintiff in Baltus failed to disclose an expert witness
while, here, plaintiffs had an expert witness who testified the
product was unreasonably dangerous. In Baltus, the plaintiff's
expert was barred from testifying because the plaintiff failed to
disclose any expert witnesses. Baltus, 199 Ill. App. 3d at 825,
557 N.E.2d at 582. The plaintiff was barred from testifying as
an expert even though he had 20 years' experience working with
the allegedly defective product. Baltus, 199 Ill. App. 3d at
837, 557 N.E.2d at 590. The court granted the defendant's motion
for summary judgment because expert testimony was needed to
establish a breach of the standard of care and the plaintiff had
no such testimony. Baltus, 199 Ill. App. 3d at 837, 557 N.E.2d
at 590.
No such expert testimony exists in the case sub judice
either. As stated, Dr. Roberts acknowledged the design was not
unreasonably dangerous where the operator could check the effec-
tiveness of the adjustments to the cutter bar from outside the
machine. Therefore, plaintiffs have no evidence supporting an
element of their claim, i.e., that the design was unreasonably
dangerous. We fail to see an important distinction between
situations where the expert testimony is not allowed because of a
- 14 -
failure to disclose the expert, thus leaving the plaintiff with
no expert testimony establishing a breach of the standard of
care, and a case such as the case sub judice where the expert
acknowledges the design was not unsafe, similarly leaving plain-
tiffs with no expert testimony establishing a breach of the
standard of care.
Plaintiffs' brief references testimony from several co-
workers regarding how they were trained, their opinions on
whether the MSH was hazardous, and how other employees had often
performed the same procedure on the cutter in the same manner
that Keith did when he got injured. However, as the trial court
stated, none of these witnesses showed they possess sufficient
scientific or technical knowledge to give testimony on the issue
of defective design. As the Baltus court, and the cases cited
therein, noted, expertise from many years of using a machine
"does not mean [one] has the knowledge, skills, and experience as
a manufacturer or designer of the equipment." Baltus, 199 Ill.
App. 3d at 837, 557 N.E.2d at 590-91.
In sum, under the facts of this case, plaintiffs were
required to set forth opinion testimony by a qualified expert
that the MSH was defectively designed, causing it to be unreason-
ably dangerous, and caused Keith's bodily injury. Plaintiffs
have failed to set forth expert opinion testimony that the MSH's
design was unreasonably dangerous. Therefore, the trial court
- 15 -
properly granted Panasonic's motion for summary judgment.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
MCCULLOUGH, P.J., and STEIGMANN, J., concur.
- 16 -