Cook-Pizzi v. Van Waters & Rogers, Inc.

Because the issue of the appellees status as a learned intermediary and the resulting defense were not expressly presented to the trial court by the appellants in their response or otherwise, it may not be considered on appeal as grounds for reversal.

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Tracy-Cook Pizzi and her husband Joe Pizzi present one issue containing five sub-issues challenging the summary judgment *fn1 that they take nothing on their claim for personal injuries under the Deceptive Trade Practices-Consumer Protection Act *fn2 (hereafter DTPA) and claims of negligence and products liability against Van Waters and Rogers, Inc., Degussa Corporation, E. I. Du Pont De Nemours and Company, Du Pont Chemicals, a division of E. I. Du Pont De Nemours and Company, and Du Pont Chemical and Energy Operations, Inc. Based upon the rationale expressed herein, we affirm.

Tracy Cook-Pizzi, an ICU nurse employed by St. Mary of the Plains Hospital, and her husband, Joe Pizzi, brought the underlying action for injuries she claims were caused by fumes from a sink drain in an ICU room of the Hospital. Tracy claims the fumes were generated in March 1992, when one of her co-employees at the Hospital poured chemicals, including hydrogen peroxide, into a clogged sink with water standing in it to clean the drain.

Before the occurrence, the Hospital employed James McDonald, a waste water consultant, d/b/a Controlled Aqua Systems, *fn3 to study and submit a waste water treatment study for the Hospital in 1991. On April 30, 1991, he submitted a written study to the Hospital. According to the report, a process by which ozone is added directly to the waste stream produced by an on-site generator and a process that adds a 50% hydrogen peroxide solution to the waste stream in the sump in the basement of the Hospital were considered. Both procedures oxidize material or solids in the waste water stream so that the oxidized material remains fluid and free flowing. McDonald preferred the hydrogen peroxide process because (1) the setup cost was substantially less than the cost of installing a DAF unit required for ozonization, (2) it would not require any more labor than the existing procedure of applying an enzyme solution, and (3) containers of the hydrogen peroxide solution can be carried to other areas of the Hospital to maintain the smaller sewer lines. (Emphasis added). Several on-site jar tests were conducted of effluent samples to confirm, among other things, that very high concentrations of the hydrogen peroxide solution would not generate heat or any condition that would create a hazardous condition, and the results of the analysis conducted by a testing laboratory were provided to the Hospital.

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Cook-Pizzi v. Van Waters & Rogers, Inc.

Because the issue of the appellees status as a learned intermediary and the resulting defense were not expressly presented to the trial court by the appellants in their response or otherwise, it may not be considered on appeal as grounds for reversal.

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Cook-Pizzi v. Van Waters & Rogers, Inc.

Because the issue of the appellees status as a learned intermediary and the resulting defense were not expressly presented to the trial court by the appellants in their response or otherwise, it may not be considered on appeal as grounds for reversal.

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