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January 20, 1999

No. 2--98--0028

_______________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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JUSTICE THOMAS delivered the opinion of the court:

LaSalle National Bank n/k/a LaSalle National Bank, N.A., as Trustee under Trust No. 113573, filed a breach of lease claim against Dr. Carlyn J. Malik individually and Carlyn J. Malik, M.D., S.C. The complaint for breach of lease was dismissed without prejudice for failure to prosecute and is not at issue in the instant appeal. Carlyn J. Malik, Cynthia Krystozek, Chester Obrochta and Pamela Kufahl (plaintiffs) then filed a third-party complaint for personal injuries against Kiannosh Jafari, Soussan Jafari, George Olson, Swissler Brothers Plumbing, Inc., Jack Swissler, and 3M Company (defendants). Following discovery, the trial court granted defendants' motion to bar plaintiffs' expert witnesses and then granted defendants' motions for summary judgment. Plaintiffs now timely appeal the trial court's order barring their expert witnesses and granting summary judgment in favor of defendants. In addition, defendants Jack Swissler and Swissler Brothers Plumbing, Inc., have filed a cross-appeal contending that the trial court should have granted summary judgment in their favor on the additional ground that plaintiffs could not show proximate cause between plaintiffs' injuries and the actions of the Swissler defendants.

The pleadings, depositions, admissions, and affidavits on file show the following. Plaintiff Dr. Carlyn Malik opened an otolaryngology practice in May 1991 in a suite of offices on the second floor of the Oak Brook Surgical Centre (Centre). Dr. Malik divided her time between her office at the Centre and her office in Naperville, Illinois. Defendants Kiannosh Jafari and Soussan Jafari (the Jafaris) were the beneficial owners of the Centre through a land trust. Malik employed plaintiffs Cynthia Krystozek and Pamela Kufahl, and plaintiff Chester Obrochta was employed by defendants Kiannosh and Soussan Jafari to perform maintenance work at the Centre. In June 1991, an ethylene oxide (EtO) sterilizer, which is used to sterilize medical instruments, was installed on the first floor of the Centre. Defendants Jack Swissler and Swissler Brothers Plumbing, Inc., installed the pipes that vented the EtO to the roof of the Centre. Defendant 3M Company manufactured the EtO sterilizer, provided installation instructions for the venting system, and inspected the venting system after it was installed.

EtO is a colorless, flammable, and highly reactive compound. EtO gas is heavier than air and is odorless at concentrations of less than 700 parts per million. EtO exposure can cause injuries to the central nervous system, the peripheral nervous system, and the mucous membranes. The 3M Company installation guide for the sterilizer required that the termination of a copper vent line leading from the sterilizer to the rooftop be no closer than 25 feet from any fresh air source, although the guide provided that greater distances might be needed in some cases. The 25-foot distance requirement is 10 feet farther than the distance required under the Illinois Administrative Code (77 Ill. Adm. Code