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.


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          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.




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