記：2013年6月17日一部赤字に代え、一部日本語訳の追記はBEMSJが行った。
http://caselaw.findlaw.com/il-court-of-appeals/1086252.html にあった内容
2013-6-17のロクﾞ
KANE v. MOTOROLA INC
Appellate Court of Illinois, First District,
Fourth Division
KANE v. MOTOROLA INC
Robert C. KANE and Patricia Kane, Plaintiffs-Appellants, v. MOTOROLA,
INC., Thomas Hull, Quirino Balzano,
and James Phillips, Defendants-Appellees.
No. 1-00-2507.
-- September 26, 2002
Barnow and Goldberg, P.C. (Ben Barnow,
Alan M. Goldberg, Sharon Henricks, of counsel), and
William J. Harte, Ltd. (William J. Harte, Joan Mannix,
of counsel), for Appellant.Kirkland and Ellis (Marchell M. Willian, Carole A. Cheney, Jonathan E.
Hinkemeyer, of counsel), for Appellee.
MODIFIED OPINION UPON DENIAL OF REHEARING
Plaintiffs, Robert and Patricia Kane, brought this cause
of action against defendants, Motorola and several of its employees, claiming that Robert Kane developed a brain tumor as a result of
testing a prototype antenna for a cellular telephone when he was employed by
Motorola as an engineer. After a lengthy discovery process, the
circuit court struck plaintiffs' two expert witnesses, Dr. Milham
and Dr. Leestma, finding that their testimony was not
based on scientific evidence. The court subsequently granted defendants'
motion for summary judgment on the basis that plaintiffs did not have any competent
evidence on the issue of causation. Plaintiffs now appeal. On appeal,
plaintiffs contend: (1) the court misapplied the Frye standard when it struck
the testimony of plaintiffs' two expert witnesses; (2) the court erred in
entering summary judgment; and (3) the court improperly limited the scope of
discovery. We affirm.
On three separate dates in 1984, plaintiff Robert Kane
(Kane) conducted field tests for a prototype cellular telephone antenna. The
purpose of the tests was to assess the effectiveness of the antenna. The
first day of testing occurred on September 19, and the second and third days of
testing occurred on November 4, and November 9. Kane estimated the duration of
the tests over the three-day period totaled about 60 to 90 minutes. During many of the tests, Kane was directed to place the antenna
approximately one centimeter above his right ear. Kane noticed during the tests the telephone became hot against his head. Several days after the last day of testing, Kane developed a skin
condition on his right scalp that he characterized as “dermatitis（皮膚炎）.” He described his scalp as becoming very itchy and having a “wet
feeling” that lasted several months. Although plaintiffs' experts stated in
their depositions that the “wetness” on Kane's scalp was also accompanied by
excessive earwax or a watery discharge from Kane's ear, Kane never mentioned
such a symptom during his deposition.
Kane estimated the prototype antenna operated at a power output of about 0.6 to 1 watt. He acknowledged, however, Motorola
documents indicated the antenna operated at 0.1 watt. Kane also estimated the antenna operated at a frequency of about 845
megahertz.
In 1992, Kane suffered a brain seizure and
was diagnosed with a brain tumor. The tumor
was classified as a grade two oligodendroglioma
malignancy. It was located in Kane's right temporal lobe, the same area in
which he held the prototype antenna and developed the wetness on his scalp.
Because the tumor mass was diffused as opposed to well-defined, it could not be
completely removed. Plaintiffs alleged in their complaint that during Kane's
testing of the prototype antenna, he was exposed to an unsafe level of radio
frequency (RF), which was the proximate cause of his brain tumor.
Plaintiff's complaint was filed in December 1993,
approximately nine years after Kane had conducted the testing. During
discovery, plaintiffs requested the prototype antenna from defendants and
defendants produced as much of the prototype as still existed, which included
the inner circuitry. Plaintiffs acknowledged receiving the prototype and
further acknowledged returning the prototype to defendants after a period of
time.
Plaintiffs offered the expert witness testimony of two
doctors, Dr. Samuel Milham and Dr. Jan Leestma, to establish that RF emitted from the prototype
antenna caused Kane's tumor. In his deposition, Dr. Milham,
an epidemiologist, concluded the excessive discharge from Kane's ear and the
wetness on Kane's scalp were evidence of an RF burn from the cellular antenna,
which in turn led to the development of Kane's tumor. Dr. Milham
admitted, though, there was no scientific evidence that Kane's brain tissue
suffered a burn injury. He inferred that the wetness on Kane's scalp and the
discharge from Kane's ear indicated a burn injury because a burn injury
generally causes clear liquid to ooze. Yet, he did not know whether a watery
discharge associated with a regular burn would occur from an RF burn. Dr. Milham admitted he did not know of any literature
establishing a connection between a watery discharge and RF exposure. He was
also unaware of any scientific evidence demonstrating an association between
wetness of the scalp and a brain tumor. Dr. Milham also
agreed that the wetness on Kane's scalp could have been described as
dermatitis, which has numerous causes including allergies or diet. He
admitted it was possible to get dermatitis anywhere on the body, including on
one's scalp.
Although Dr. Milham stated he
believed there was evidence that tissue injury, including burn injury, was
associated with the development of cancer, he was not aware of any evidence
linking an RF burn with cancer. He admitted the relevant scientific
literature did not support the conclusion that RF exposure caused cancer.
Instead, he compared cancer developing on the skin after a sunburn with an RF
burn causing a cancerous brain tumor.
Dr. Milham
concluded the prototype antenna more probably than not caused Kane's brain tumor, but admitted he did not conduct a study or test to determine whether an
antenna similar to the prototype antenna
operating at 1 watt and at 845 megahertz would be able to cause a burn injury
to brain tissue. He further admitted he did not have the expertise to determine whether the
prototype antenna had enough power to injure or burn Kane's brain tissue. Dr. Milham admitted he could not state to a
reasonable degree of medical certainty that RF exposure initiated Kane's brain
tumor. Dr. Milham further admitted he was not aware
of any scientific evidence showing an oligodendroglioma
developing in as little as eight years and had no knowledge of latency periods
for that type of tumor.
Dr. Leestma, a
neuropathologist, stated in his deposition that he believed RF exposure “might
or could” cause cancer in humans, but could not state to a reasonable degree of
medical certainty that exposure to RF caused human brain cancer. Although he believed Kane's dermatitis-like condition was caused by RF
exposure, he did not consult a dermatologist or conduct research to determine
whether dermatitis could develop on one's scalp without exposure to RF. He was
also not aware of any scientific evidence that RF exposure caused dermatitis or
of any evidence demonstrating an association between dermatitis and brain
tumors.
Dr. Leestma stated that Kane's
excessive earwax supported his opinion that the RF radiation Kane was exposed
to might or could have caused Kane's brain tumor because it was a symptom
reported in the same location as Kane's exposure to RF. He stated, though, he
could not cite to any scientific evidence to establish that an increase in
temperature associated with RF exposure was sufficient to stimulate the glands
that produce earwax. He also was not aware of any scientific evidence that
found that increased production of earwax was a symptom of a brain tumor.
Dr. Leestma admitted there was
no objective evidence that Kane sustained a burn injury based on his
examination of the tissue samples of Kane's tumor. He stated he believed
exposure to RF might or could have induced changes in Kane's DNA that could
have resulted in Kane's tumor. However, he did not know of any scientific
evidence indicating that exposure to 845 megahertz of RF has sufficient energy
to break a chemical bond in the human body. Dr. Leestma
also admitted he did not know of any scientific data indicating RF was capable
of breaking DNA bonds in human tissue. He further admitted that breaks in DNA
bonds do not necessarily mean cancer will occur.
Dr. Leestma also admitted that
although he did not know whether there was a latency period for oligodendroglioma tumors, he believed that eight years came
within the domain of credibility. He also stated that the most common site
for oligodendroglioma tumors is in the temporal lobe,
the same location where Kane's tumor was located.
Dr. Leestma further stated that
although there were reports in the media about individuals developing brain
tumors from cellular telephones, there were no scientific case studies in
peer-reviewed literature establishing a connection between brain tumors and RF
radiation. He admitted he did not perform laboratory research to confirm
whether RF caused any type of cancer and was not aware of any laboratory
studies in which RF induced brain cancer in a laboratory animal.
Defendants filed a motion to strike plaintiffs' experts
as well as a motion for summary judgment. The circuit court struck the
motions without prejudice on the basis that the motion for summary judgment was
too broad. The court directed defendants to file amended motions narrowing
the scope of the motion for summary judgment. The court then informed
plaintiffs that if they had insufficient knowledge to respond to the amended
motions they could file an affidavit pursuant to Supreme Court Rule 191(b) (145
Ill.2d R. 191(b)), in which they could request additional discovery to respond
to the allegations.
Defendants' amended motion to strike plaintiffs' experts
alleged their testimony failed to meet the standard of reliability as set forth
in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Defendants' amended
motion for summary judgment was limited to the issue of causation and alleged
plaintiffs were unable to bring forth competent testimony as to causation.
Defendants attached the affidavits of Dr. Christopher Davis and Dr. Theodore L.
Phillips.
Dr. Davis, who received his Ph.D. in physics, averred
that Kane's exposure to RF could only have elevated Kane's brain temperature a
maximum of about .23 degrees Celsius. He further averred that an elevation in
temperature in the brain even by a few degrees can happen naturally without
harmful effects, such as when a person exercises.
Dr. Theodore L. Phillips, a medical doctor, averred that
it would be scientifically impossible for the RF radiation to which Kane was
exposed to have burned Kane's brain tissue. He stated there was no scientific
evidence that a short-term elevation in temperature was associated with the
development of cancer or with the mutation of human cells. He concluded the
peer-reviewed scientific research did not support a causal relationship between
RF and the development of cancer in the brain or in any other human tissue.
Several months later and prior to the court's ruling on
defendants' motions, plaintiffs were permitted to disclose a third expert
witness, Dr. Jerry Phillips. Dr. Jerry Phillips and defendants' expert, Dr.
Theodore Phillips, are not related. Dr. Jerry Phillips, who received his
Ph.D. in biochemistry, stated in his affidavit he believed “more likely than
not” that Kane's tumor was the result of exposure to RF during the testing of
the prototype antenna. He stated he relied on scientific studies that
indicated RF can alter biological processes and lead to adverse biological
effects. He stated his opinion was also based on animal laboratory studies in
which animals developed cancers at an accelerated rate when exposed to RF.
Plaintiffs then responded to defendants' motions,
attaching an affidavit from Bill Curry, who they introduced as a rebuttal
witness for the purpose of refuting defense expert Dr. Christopher Davis.
Curry, a physicist, averred that Dr. Davis's conclusions were “flawed” and
“unreliable.” Plaintiffs did not file a Rule 191(b) affidavit alleging
additional discovery was necessary.
The circuit court granted defendants' motion to strike
Drs. Milham and Leestma,
noting that both experts' testimony was based upon speculation rather than
scientific evidence. The court found that Dr. Milham
admitted none of the epidemiological studies upon which he relied indicated the
RF exposure experienced by Kane caused brain tumors. The court further found
that, similarly, Dr. Leestma was unable to cite to
any scientific evidence linking RF to brain tumors. The court did not comment
on plaintiffs' third expert, Dr. Jerry Phillips, or affiant Bill Curry.
The circuit court subsequently granted defendants' motion
for summary judgment finding that plaintiffs were unable to present competent
testimony showing causation. The court noted the insufficiency of both Dr. Milham's and Dr. Leestma's
testimony, but again did not mention Dr. Jerry Phillips or Bill Curry.
On appeal, plaintiffs first contend the circuit court
erred in striking the testimony of its two experts, Drs. Milham
and Leestma. They contend their experts' testimony
was sufficient to satisfy the Frye standard of reliability because their
conclusions were extrapolated from generally accepted scientific data.
Plaintiffs maintain that an expert's testimony is admissible even when the
conclusion is not generally accepted in the scientific community as long as the
expert's conclusions were extrapolated from sound scientific data.
In Illinois, “the exclusive test for the admission of
expert testimony is governed by the standard first expressed in Frye v. United
States, 293 F. 1013 (D.C.Cir.1923).” Donaldson v. Central Illinois Public Service
Co., 199 Ill.2d 63, 76-77, 262 Ill.Dec. 854, 767
N.E.2d 314 (2002). This standard, also referred to as the “general
acceptance” test, indicates that scientific evidence is admissible “if the
methodology or scientific principle upon which the opinion is based is
‘sufficiently established to have gained general acceptance in the particular
field in which it belongs.’ ”Donaldson, 199 Ill.2d at 77, 262 Ill.Dec. 854, 767 N.E.2d 314, quoting Frye, 293 F. at 1014.
General acceptance applies to the underlying methodology used to generate the
conclusion; it does not concern the actual conclusion reached. Donaldson, 199
Ill.2d at 77, 262 Ill.Dec. 854, 767 N.E.2d 314.
Despite the novelty of the conclusion reached by the expert, the fact finder
may consider the opinion if the underlying methodology used to generate the
opinion is reasonably relied on by experts in the field. Donaldson, 199 Ill.2d
at 77, 262 Ill.Dec. 854, 767 N.E.2d 314. A
cause-effect relationship need not be clearly established before an expert can
testify that such a relationship exists, as long as the basic methodology
employed to reach the conclusion is sound. Donaldson, 199 Ill.2d at 78, 262 Ill.Dec. 854, 767 N.E.2d 314, quoting Ferebee
v. Chevron Chemical Co., 736 F.2d 1529, 1535-36 (D.C.Cir.1984). A technique
or methodology, however, “is not ‘generally accepted’ if it is experimental or
of dubious validity.” Donaldson, 199 Ill.2d at 78, 262 Ill.Dec.
854, 767 N.E.2d 314.
Extrapolation is commonly used by scientists when the medical
inquiry is new or the opportunities to examine a specific cause and effect
relationship are limited. Donaldson, 199 Ill.2d at 84-85, 262 Ill.Dec. 854, 767 N.E.2d 314; see also Linstrom
v. Han, No. 1-00-4028, slip op. at 9, ---Ill.2d ----, ----, --- Ill.Dec. ----, --- N.E.2d ----, 2002 WL 1991143 (August 29,
2002) (extrapolation is a generally accepted technique in cases that involve a
question to which medical science lacks a clear answer). In these limited
instances, an expert may rely upon scientific literature discussing similar,
yet not identical, cause and effect relationships. Donaldson, 199 Ill.2d at
85, 262 Ill.Dec. 854, 767 N.E.2d 314. “ ‘As long as
the basic methodology employed to reach such a conclusion is sound, such as use
of tissue samples, standard tests, and patient examinations, products liability
law does not preclude recovery until a “statistically significant” number of
people have been injured or until science has had the time and resources to
complete sophisticated laboratory studies * * *.’ ” Donaldson, 199 Ill.2d at
86, 262 Ill.Dec. 854, 767 N.E.2d 314, quoting Ferebee, 736 F.2d at 1535-36.
In Donaldson, the plaintiffs' experts utilized
extrapolation to conclude that a cause and effect relationship existed between
the exposure to coal tar and the development of neuroblastoma, a rare form of
cancer. The plaintiffs' experts had testified that extrapolation was
necessary because the relationship between coal tar and neuroblastomas had not
been the subject of extensive study and research. The court found the
plaintiffs' experts' testimony had been properly admitted because the experts'
conclusions were based on similar, although not identical, scientific studies
and theories. Donaldson, 199 Ill.2d at 88, 262 Ill.Dec.
854, 767 N.E.2d 314. The court noted the plaintiffs' experts had testified
that they utilized the method of extrapolation and that the technique was
generally accepted in their fields. Donaldson, 199 Ill.2d at 87-88, 262 Ill.Dec. 854, 767 N.E.2d 314. The court also reiterated
that the relevant inquiry was whether the methodologies used to extrapolate the
conclusion were generally accepted among the scientific community, not whether
the actual conclusion reached was generally accepted. Donaldson, 199 Ill.2d
at 88, 262 Ill.Dec. 854, 767 N.E.2d 314.
Nevertheless, courts may reject an expert's conclusions
when their extrapolation methodologies are unsound or when the scientific data
upon which they rely is not related to the conclusion reached. In General
Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512,
139 L.Ed.2d 508 (1997), the Supreme Court found the plaintiffs' experts'
testimony inadmissible because the animal studies upon which they based their
conclusions were so dissimilar to the facts presented in the litigation. The
court noted that the experts failed to explain why and how they extrapolated
their opinions from the seemingly far-removed animal studies. The court
further noted “ there [was] simply too great an analytical gap between the data
and the opinion proffered.” Joiner, 522 U.S. at 146, 118 S.Ct.
at 519, 139 L.Ed.2d at 519.
Additionally, in Schmaltz v. Norfolk & Western Ry.
Co., 878 F.Supp. 1119 (N.D.Ill.1995), the plaintiff
claimed his exposure to certain herbicides containing atrazine caused his
chronic respiratory disease. The court found the experts' testimony
inadmissible because the experts could not cite to any documented cases where
exposure to the alleged chemical caused the alleged illness. Rather, the
experts relied on studies where high doses of atrazine caused eye irritation in
rabbits. The court noted the “analytical gap between the evidence presented
and the inferences to be drawn * * * is too wide.” Schmaltz, 878 F.Supp. at 1122.
Although plaintiffs suggest a de novo standard of review,
our supreme court has made it clear that Frye issues are reviewed under an
abuse of discretion standard. Donaldson, 199 Ill.2d at 76, 262 Ill.Dec. 854, 767 N.E.2d 314.
Here, it was not an abuse of discretion for the circuit court to conclude that plaintiffs' experts'
testimony was inadmissible because their conclusions were based on speculation(根拠なしの推測) rather than sound science. Although plaintiffs argue their experts' conclusions were based on
numerous scientific data, both experts acknowledged in their depositions the
scientific data did not support their conclusions that Kane suffered an RF
burn, which led to his development of a brain tumor. The experts stated they knew of no studies indicating an
RF burn was capable of causing a brain tumor. They also could not rule out any
other cause of Kane's tumor, including genetics. Plaintiffs' experts were
unable to state how they extrapolated their conclusions from the scientific data
upon which they relied or how the numerous dissimilar studies they cited to
supported their conclusions. They also acknowledged they had not conducted any independent tests or investigation to
determine whether the prototype or an antenna similar to the prototype was
capable of causing an RF burn. Plaintiffs' experts were unable to explain
what steps they took or methodologies they used to extrapolate their opinions. A court is not required to accept any conclusion an expert may reach
merely because the expert claimed the conclusion was extrapolated from
generally accepted scientific data. An expert must be able to show the
methodologies he employed to extrapolate his conclusion were sound.
Plaintiffs' experts failed to do so.
Although plaintiffs repeatedly argue the eight-year
latency period in which Kane's tumor developed supports their claim, they fail
to acknowledge that both experts stated they were not aware of a known latency
period for oligodendroglioma tumors.
Plaintiffs also argue（主張する） the circuit court mistakenly rejected Dr. Leestma's testimony because he concluded Kane's exposure to
RF “might or could have” caused the brain tumor. They argue that a “might or could have” opinion by an expert is sufficient
for admissibility on causation.
We reject plaintiffs' claim because it is not supported
by the record. The court stated it excluded Dr. Leestma's
opinion because he admitted there was no
scientific data to support his opinion.
Plaintiffs next contend the circuit court erred in
granting summary judgment. Plaintiffs argue the court ignored plaintiffs'
expert Dr. Jerry Phillips and affiant Bill Curry, whose testimony was
sufficient to preclude summary judgment.
Summary judgment is proper if the pleadings, depositions,
affidavits, admissions, and other matters on file demonstrate that there is no
genuine issue of material fact and that the movant is entitled to judgment as a
matter of law. Smith v. Armor Plus Co., 248 Ill.App.3d 831, 839, 187 Ill.Dec. 625, 617 N.E.2d 1346 (1993). A triable issue of
fact exists where there is a dispute as to material facts or where the material
facts are undisputed but reasonable persons might draw different inferences
from those facts. In re Estate of Hoover, 155 Ill.2d 402, 411, 185 Ill.Dec. 866, 615 N.E.2d 736 (1993). The court should
construe the evidence strictly against the movant and liberally in favor of the
opponent. Richter v. Burton Investment Properties, Inc., 240 Ill.App.3d 998, 1001,
181 Ill.Dec. 780, 608 N.E.2d 1254 (1993). Appellate
review of an order granting summary judgment is de novo. Outboard Marine Corp.
v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec.
691, 607 N.E.2d 1204 (1992).
Although a party opposing a motion for summary judgment
need not prove his case, he must provide some factual basis that would arguably
entitle him to judgment under the law. Davis v. Times Mirror Magazines, Inc.,
297 Ill.App.3d 488, 495, 231 Ill.Dec. 826, 697 N.E.2d
380 (1998). In Davis, this court found that the plaintiff's claims of
retaliatory discharge were insufficient to raise a question of fact to preclude
summary judgment for the defendant. The plaintiff's purported evidence of
retaliatory discharge was based on unsupported assertions, opinions, and
conclusory, self-serving statements that he made in his deposition testimony,
and which were not supported by the record. The court found that because the
plaintiff's attempts to create genuine issues of material fact were based on
assertions unsupported by the record, summary judgment for the defendant was
proper. Davis, 297 Ill.App.3d at 497-498, 231 Ill.Dec.
826, 697 N.E.2d 380.
Here, we find the circuit court's order entering summary
judgment in favor of defendants proper. Plaintiffs' complaint alleged that
Kane's exposure to the prototype antenna was the proximate cause of his brain
tumor; however, plaintiffs failed to bring forth any competent evidence in
support of proximate cause. Although plaintiffs argue the circuit court
failed to consider the testimony of Dr. Jerry Phillips and Bill Curry,
plaintiffs fail to specifically argue how their testimony created a question of
fact with regard to causation. Plaintiffs refer only to the conclusory,
unsupported allegations in each of their affidavits. Plaintiffs neither cite
to nor argue that their deposition testimony created a question of fact. It
is not a reviewing court's duty to search the record for “unargued”
and “unbriefed” reasons to reverse a lower court's
decision. Boeger v. Boeger,
147 Ill.App.3d 629, 631, 101 Ill.Dec. 490, 498 N.E.2d
814 (1986). Although plaintiffs need not prove their case at the summary
judgment stage, they must come forward with scientific evidence regarding
causation to preclude the entry of summary judgment. Summary judgment is
proper when the party opposing the motion cannot establish an essential element
of his or her cause of action. Volpe v. IKO Industries, Ltd., 327 Ill.App.3d
567, 577-78, 261 Ill.Dec. 621, 763 N.E.2d 870 (2002).
Because plaintiffs were unable to establish causation, summary judgment was
proper.
Lastly, plaintiffs argue the circuit court abused its
discretion when it limited the scope of discovery. Plaintiffs maintain that
although they did not file a Rule 191(b) affidavit in response to defendants'
motion for summary judgment, their discovery requests already before the court
were sufficient to comply with the rule.
When a party cannot sufficiently respond to a motion for
summary judgment because it believes additional discovery is necessary, it may
file a Rule 191(b) affidavit. Giannoble v. P & M
Heating & Air Conditioning, Inc., 233 Ill.App.3d 1051, 1064, 175 Ill.Dec. 169, 599 N.E.2d 1183 (1992); see also 145 Ill.2d
R. 191(b). Rule 191(b) provides:
“If the affidavit of either party contains a statement
that any of the material facts which ought to appear in the affidavit are known
only to persons whose affidavits affiant is unable to procure by reason of
hostility or otherwise, naming the persons and showing why their affidavits
cannot be procured and what affiant believes they would testify to if sworn,
with his reasons for his belief, the court may make any order that may be just,
either granting or refusing the motion, or granting a continuance to permit
affidavits to be obtained, or for submitting interrogatories to or taking the
depositions of any of the persons so named, or for producing papers or
documents in the possession of those persons or furnishing sworn copies thereof.”
145 Ill.2d R. 191(b).
The “[f]ailure to comply with
Rule 191(b) defeats an objection on appeal that insufficient time for discovery
was allowed.” Giannoble, 233 Ill.App.3d at 1064, 175
Ill.Dec. 169, 599 N.E.2d 1183.
Here, despite the circuit court's advisement that
plaintiffs would be permitted to file a Rule 191(b) affidavit if they needed
additional discovery, plaintiffs failed to do so. They cannot now complain
the discovery process was insufficient or limited. Although they argue their
discovery requests were sufficient in form to satisfy the technical
requirements of Rule 191(b), the cases they rely on do not support their
argument. These cases concern situations where a party filed an affidavit
requesting additional discovery, but the affidavit was in some way technically
deficient. We reject plaintiffs' contention.
Accordingly, the judgment of the circuit court
is affirmed.
Affirmed.
Justice KARNEZIS delivered the opinion of the court:
THEIS, P.J., and GREIMAN, J., concur