Van-Packer Co. v. Airgas USA, LLC

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

VAN-PACKER CO., an Illinois corporation, )

)

Plaintiff, )

)

v. ) Case No. 4:22-cv-04090-SLD-RLH

)

AIRGAS USA, LLC, a Delaware limited )

liability company, )

)

Defendant. )

ORDER

Before the Court is Defendant Airgas USA, LLC’s (“Airgas”) Motion for Summary

Judgment, ECF No. 50. For the reasons that follow, the Motion for Summary Judgment is

GRANTED.

BACKGROUND1

Plaintiff Van-Packer Co. (“Van-Packer”) is a manufacturer of chimney and venting

products, including rectangular grease duct products. Answer Third Am. Compl. 2, ECF No. 35.

Van-Packer manufactured rectangular grease ducts for two different projects, the Hard Rock

Hotel in New York and the KLA Kitchen in California (collectively “the Projects”). The

Projects’ ducts required welding 304 stainless steel (“SS”) to 430 SS. Van-Packer manufactured

the Projects’ ducts, and the ducts subsequently cracked. Van-Packer has been purchasing

products from Airgas, a seller of welding products, since at least 2000. Van-Packer asserts that

Airgas is to blame for the duct cracks.

1 At summary judgment, a court must “constru[e] the record in the light most favorable to the nonmovant.” Payne v.

Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Unless otherwise noted, this factual background is drawn from Airgas’s

statement of undisputed material facts, Mot. Summ. J. 2–7, Van-Packer Co.’s response thereto and its statement of

additional material facts, Corrected Resp. Mot. Summ. J. 3–20, ECF No. 54, Airgas’s reply thereto, Reply Mot.

Summ. J. 1–8, ECF No. 55, and exhibits attached to those filings.

In 2018, Van-Packer experienced issues with cracked welds when welding two ends of a

piece of 430 SS together to fabricate a round product which is not at issue in this case. Bill Sims,

Van-Packer’s plant manager at the time, reached out to Airgas employee Gene Rosengren via

email on August 6, 2018 to ask about the cracked welds. Sims received from Rosengren a

forwarded email from Todd Edge, a fabrication specialist for Airgas, which recommended

certain specifications: “430/310/309 with 100/AR.” Aug. 6, 2018 Email from Rosengren to

Sims, Resp. Mot. Summ. J. Ex. 1, ECF No. 51-1 at 2. Sims attempted to follow up on this

email—no response is in the record.

On April 22, 2020, Sims noticed another issue with cracked welds, this time involving

welding 304 SS to 430 SS as part of fabricating the at-issue rectangular grease ducts. According

to Sims, he called Edge, and they discussed the cracked welds issue; Edge recommended

switching from 308L wire to 309L wire to solve the cracking issue. Sims testified that Edge

stated that annealing, a heat treatment, was not necessary. Sims followed up that phone call with

an email, offering to send to Airgas a sample of the cracked welds. Edge did not respond.

On April 30, 2020, Sims had a phone conversation with Mark Kowalski, a weld process

specialist for Airgas. According to Sims, he and Kowalski discussed Sims’s conversation with

Edge, and Kowalski did not disagree with any of Edge’s recommendations and thought that “the

best way to move forward was using 309L wire.” Sims Dep. 120:13–22, Mot. Summ. J. Ex. B,

ECF No. 50-2. That same day, Sims sent an email to Robin Rediger, Van-Packer’s general

manager at the time, wherein Sims stated that the welding specialists he spoke with in the

previous week or so “want[ed] [Van-Packer] to switch to 309 wire” which was “traditionally

used for welding dissimilar steels.” Apr. 30, 2020 Email from Sims to Rediger, Resp. Mot.

Summ. J. Ex. 7, ECF No. 51-7. Using the 309 wire would “hopefully eliminat[e] the cracking

issue” in the rectangular grease ducts. Id. Sims also mentioned to Reidger that the cracked

products “were welded by a welder in training” and that the welding specialists, i.e., people like

Edge and Kowalski, wanted to “blame it on the new welder,” but Sims had pressed the issue to

ensure the cracking did not happen again, prompting the conversation “about switching wire.”

Id.

In July and August 2020, Kowalski came to Van-Packer’s facility in connection with a

new welding tool which Van-Packer had purchased to address warpage in its products. Although

not the purpose of Kowalski’s visit, Sims and Kowalski “had small talk on [Van-Packer’s] past

problem of the weld cracking” and Kowalski did not recommend that Van-Packer “should be

doing anything different than [what it] w[as] doing.” Sims Dep. 227:20–228:12. Airgas disputes

Van-Packer’s characterization of the statements from Edge and Kowalski, specifically

highlighting Sims’s use of qualified language like “maybe” and “thought” to suggest that neither

Edge nor Kowalski made affirmative statements that the cracked welds issue would be solved by

using 309L wire without annealing. E.g., Reply Mot. Summ. J. 2, ECF No. 55 (quoting Sims

Dep. 93:3–5).

When Van-Packer decided to switch to using 309L wire in April 2020, it already had

some 309L wire in its inventory. As work continued on the rectangular grease ducts, Van-

Packer made six purchases of 309L wire from Airgas via six purchase orders between July 2020

and October 2020. Airgas sent invoices for each of the six orders to Van-Packer. Van-Packer

paid all six invoices. On May 25, 2021, during the period when the rectangular grease ducts

were being shipped to and installed for the Projects, Sims sent an email to Rosengren and

Kowalski which stated that the cracked welds issue was “back” and that the “material welded

with 309L wire” was “breaking.” May 25, 2021 Email from Sims to Rosengren and Kowalski,

Resp. Mot. Summ. J. Ex. 10, ECF No. 51-10 at 3; Sims Dep. 163:17–20. Van-Packer had to

remake the Projects’ rectangular grease ducts.

Van-Packer filed this lawsuit on June 6, 2022. See generally Compl., ECF No. 1. A

Third Amended Complaint was filed on November 10, 2022. See generally Third Am. Compl.,

ECF No. 28. Van-Packer asserts that Airgas should be liable for the losses it incurred because

Airgas assertedly warranted that if Van-Packer “changed from 308L to 309L wire with no

annealing required for welding dissimilar metals (i.e., 304 SS to 430 SS), doing so would remedy

Van-Packer’s cracked weld issues.” Id. at 10. Airgas successfully sought the dismissal of Van-

Packer’s Count I, which asserted a claim for negligent misrepresentation. Id. at 4–7; see

generally Aug. 9, 2023 Order, ECF No. 33. An expert for Van-Packer, Bob Olson, died before

he was able to be deposed in this lawsuit. Van-Packer replaced Olson with another expert,

Zahirul Hoque. Airgas moves for the entry of summary judgment on the remaining two counts

of Van-Packer’s Third Amended Complaint, specifically Count II for breach of implied warranty

of fitness for a particular purpose, Third Am. Compl. 7–10, and Count III for breach of express

warranty, id. at 10–11. See generally Mot. Summ. J.; Reply Mot. Summ. J. Van-Packer opposes

the motion for summary judgment. See generally Corrected Resp. Mot. Summ. J., ECF No. 54.2

DISCUSSION

I. Legal Standard

Summary judgment is proper when “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The movant in a summary judgment motion bears the initial burden of production; it must

2 A corrected version of Van-Packer’s response was docketed, correcting a “typographical error.” See July 7, 2025

Text Order (quotation marks omitted). The exhibits were not re-filed so the Court cites to the exhibits attached to

the original response, ECF No. 51.

point the court to the materials in the record that “demonstrate the absence of a genuine issue of

material fact” for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the

nonmovant bears the ultimate burden of persuasion on a particular issue, however, the movant

can meet its initial burden by showing “that there is an absence of evidence to support the

nonmoving party’s case.” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (quotation

marks omitted). Once the movant discharges its initial burden, the burden shifts to the

nonmovant to “make a showing sufficient to establish the existence of an element essential to

that party’s case.” Celotex, 477 U.S. at 322. The court must construe the record in the light most

favorable to the nonmovant, Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003), “resolving all

factual disputes and drawing all reasonable inferences in favor of [the nonmovant],” Grant v.

Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017). The nonmovant “is not entitled to the

benefit of inferences that are supported by only speculation or conjecture.” Nichols v. Mich. City

Plant Plan. Dep’t, 755 F.3d 594, 599 (7th Cir. 2014) (quotation marks omitted). “[T]he mere

existence of some alleged factual dispute is insufficient to defeat a motion for summary

judgment,” Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015) (quotation marks omitted), as

“there must be evidence on which the jury could reasonably find for the [nonmovant],” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

II. Analysis

Airgas advances three primary arguments in support of its Motion for Summary

Judgment: (1) Van-Packer has not established that the breach of the claimed warranties was a

proximate cause of the failed welds in the Projects’ rectangular grease duct, Mot. Summ. J. 7–11;

(2) Van-Packer has not established that any such warranties were ever made by Airgas, id. at 11–

15; and (3) Airgas disclaimed the warranties, id. at 15–21. The proximate cause issue is

dispositive, such that the Court need not consider the other two arguments.

Van-Packer asserts that Airgas created an implied warranty that the 309L wire, without

annealing, would be fit for the particular purposes of “welding dissimilar metals” and

“remedying the cracked welds issue experienced by Van-Packer.” Third Am. Compl. 8–9. The

warranty underpinning the express warranty claim is essentially identical—again, Airgas

allegedly expressly warranted that if Van-Packer “changed from 308L to 309L wire with no

annealing required for welding dissimilar metals (i.e., 304 SS to 430 SS), doing so would remedy

Van-Packer’s cracked weld issues.” Id. at 10.

Under Illinois law,3 a warranty of fitness for a particular purpose is implied for certain

contracts. See 810 ILCS 5/2-315. To prove a breach of an implied warranty of fitness for a

particular purpose, a plaintiff must show:

(1) a sale of goods, (2) that the seller had reason to know of any particular purpose

for which the goods are required, (3) that plaintiff, as buyer of the goods, was

relying upon seller’s skills or judgment to select suitable goods, and (4) that the

goods were not fit for the particular purpose for which they were used.

Maldonado v. Creative Woodworking Concepts, Inc., 796 N.E.2d 662, 666 (Ill. App. Ct. 2003)

(citing Crest Container Corp. v. R.H. Bishop Co., 445 N.E.2d 19, 23–24 (1982)). To prove a

breach of an express warranty, a plaintiff must show:

(1) the terms of the warranty; (2) a breach or failure of the warranty; (3) a demand

upon the defendant to perform under the terms of the warranty; (4) a failure by the

defendant to do so; (5) compliance with the terms of the warranty by the plaintiff;

and (6) damages measured by the terms of the warranty.

3 The Court analyzes these issues under Illinois law because Van-Packer invokes the Court’s diversity jurisdiction,

Answer Third Am. Compl. 2, and the parties both use Illinois law in their briefing, see, e.g., McCoy v. Iberdrola

Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014) (stating that in the absence of a choice-of-law issue, “the federal

court may simply apply the forum state’s substantive law”).

Wright v. Walmart, Inc., 688 F. Supp. 3d 794, 807 (S.D. Ill. 2023) (quotation marks omitted).

Both claims require a showing of proximate causation between the breach of the warranty and

the claimed loss. See Crest, 445 N.E.2d at 25 (“[The p]laintiff must prove proximate causation

in warranty cases.”); Bluestein v. Upjohn Co., 430 N.E.2d 580, 586 (Ill. App. Ct. 1981)

(“Causation is an essential element of a breach of warranty theory.”); Holden Metal & Aluminum

Works, Ltd. v. Wismarq Corp., No. 00 C 0191, 2004 WL 1088356, at *2 (N.D. Ill. May 12, 2004)

(“Causation is a critical element in contract law.”); 810 ILCS 5/2-314 cmt. 13 (“In an action

based on breach of warranty, it is of course necessary to show not only the existence of the

warranty but the fact that the warranty was broken and that the breach of the warranty was the

proximate cause of the loss sustained.”); accord Malawy v. Richards Mfg. Co., 501 N.E.2d 376,

388 (Ill. App. Ct. 1986) (noting that evidence was required to demonstrate that “plaintiff’s

injuries were proximately caused by breaches of implied warranties of merchantability and

fitness for a particular purpose”); Walker v. Macy’s Merch. Grp., Inc., 288 F. Supp. 3d 840, 869

(N.D. Ill. 2017) (“In an action based upon breach of implied warranty ... it is necessary to show

the existence of the warranty, its breach, and proximate cause.” (alterations in original) (quoting

Wheeler v. Sunbelt Tool Co., 537 N.E.2d 1332, 1341 (Ill. App Ct. 1989))).

The failure to muster any causal evidence is fatal to a warranty claim. See Harris v. Gen.

Motors Corp., 34 F. App’x 487, 489–90 (7th Cir. 2002) (affirming grant of summary judgment

on warranty claims where the plaintiff-driver failed to provide any evidence causally connecting

an airbag’s assumedly defective deployment with her injuries); Giles v. Wyeth, Inc., 500 F. Supp.

2d 1063, 1070–71 (S.D. Ill. 2007) (granting summary judgment on express warranty claim where

the plaintiff had “failed to come forward with any evidence that the breach of the alleged

warranties proximately caused” the at-issue injuries); cf. Royal Bus. Machs., Inc. v. Lorraine

Corp., 633 F.2d 34, 46 (7th Cir. 1980) (“[A] plaintiff may not recover for breach of express or

implied warranty where the facts proven show that there are several possible causes of an injury,

for one or more of which the defendant was not responsible and it is just as reasonable and

probable that the injury was the result of one cause or the other . . . .” (quotation marks omitted)).

Dissatisfaction with an outcome is not sufficient to blame a warrantor—there must be some

evidence causally connecting the breach of the warranty to the warrantee’s injuries.

Here, Van-Packer does not point to any evidence about what caused the Projects’

rectangular grease duct cracks. As far as the record shows, the cracked rectangular grease ducts

were never retrieved from the Projects and were not tested by Van-Packer or its agents.4 Van-

Packer’s expert, Hoque, conducted an analysis of cracked welds provided by Van-Packer but

determined that they contained 308 wire, not 309L wire. Hoque Dep. 127:21–128:1, 159:11–13,

Mot. Summ. J. Ex. D, ECF No. 50-4. Hoque opined that there were many potential causes for

the cracks, such as the chemical composition and material properties of the SS itself or improper

welding technique. See Mot. Summ. J. 9–10 (citing Hoque Dep. 75, 101–102, 105–14, 119–20,

132–37, 145–50, 153–58, 165–66, 171–75, 177, 181–86). Hoque also opined that a post-weld

heat treatment may not have prevented the welds from cracking. Hoque Dep. 198:6–9, 200:19–

201:4. In its briefing, Van-Packer seeks to discredit the significance of Hoque’s testimony. See

Corrected Resp. Mot. Summ. J. 29–31 (“The only material portion of Hoque’s testimony and

opinion is when he explained how 308L, 304-8, or 304-AHL, but not 309L wire, would be the

recommended wire for the Van-Packer welding and product application at issue.”). It

4 Van-Packer asserts that two samples were sent to Hoque’s employer and that Hoque only tested the first sample,

which was from when Sims first noticed and sought solutions to the issue of cracked welds in Van-Packer’s

rectangular products in April 2020. See Corrected Resp. Mot. Summ. J. 2, 8, 29–30. The details related to the

second sample—including when it was sent, whether it was from the Projects, whether it was ever tested by anyone,

and why it was not tested by Hoque—are left unexplained by Van-Packer.

emphasizes that Hoque did not analyze anything involving 309L wire. Id. at 30 (“Hoque’s

analysis is clearly based on only the first sample sent by Van-Packer and he testified he does not

know what wire was used for product shipped to the [P]rojects.”); see also Sims Dep. 181:5–16

(testifying that Van-Packer sent a sample to Hoque’s employer from the welds that had cracked

in April 2020, prior to Van-Packer switching from using 308 wire).

Airgas makes two related arguments based on Hoque’s analysis and Van-Packer’s use

thereof. First, it argues that because Hoque analyzed welds that used 308 wire instead of 309L

wire, there is no evidence of a “causal connection between the claimed warranties associated

with the sale of 309 L wire and the cracked welds.” Mot. Summ. J. 10. Second, it argues that

Van-Packer cannot even demonstrate that 309L wire was used in the Projects because Hoque

analyzed welds using 308 wire instead of 309L wire. See id. at 8 (“Van-Packer cannot claim

breach of warranties associated with the sale of a product it did not use.”). Van-Packer responds

to the second argument that the evidence at least shows that 309L wire was used for the Projects’

rectangular grease ducts. Corrected Resp. Mot. Summ. J. 29–30. The Court agrees that the

limited evidence on this issue establishes that 309L wire was used for the Projects. See Sims

Dep. 215:21–216:5 (testifying that only 309L wire was used for the Projects). Airgas’s second

argument sweeps too broadly.

However, Airgas’s first argument is on point—it rightfully emphasizes that Van-Packer’s

failure to analyze the cracks in the Projects’ rectangular grease ducts means that Van-Packer has

offered no competent evidence whatsoever as to what caused them to crack. See Reply Mot.

Summ. J. 10–12. Consider a case involving a defective pipe where a general warranty provided

that materials and equipment would “be free from defect or deficiency for one (1) year.”

ExxonMobil Oil Corp. v. Amex Constr. Co., 702 F. Supp. 2d 942, 959 (N.D. Ill. 2010) (quotation

marks omitted). The court found that “any damages caused by that defect or deficiency [we]re

rightly attributed to [the defendant] so as to satisfy the element of proximate causation” because:

(1) both parties’ experts testified that there was a defect in the pipe; (2) the plaintiff’s expert

testified that the defendant’s agents failed to properly fuse a joint in the pipe; (3) the defendant’s

expert testified that the pipe would not have failed but for that defect; and (4) the defendant

admitted that the pipe “was not constructed in a manner that rendered it fit for its intended

purpose.” Id. at 964–65. Here, there is no evidence causally connecting the warranties’ breaches

to Van-Packer’s injuries, which is an essential element of its claims. See Crest, 445 N.E.2d at

25; Bluestein, 430 N.E.2d at 586; Holden Metal & Aluminum Works, 2004 WL 1088356, at *2;

810 ILCS 5/2-314 cmt. 13. Van-Packer has wholly failed to muster evidence analyzing how the

Projects’ rectangular grease ducts cracked—a required showing to resist the entry of summary

judgment. See Harris, 34 F. App’x at 489–90; Giles, 500 F. Supp. 2d at 1070–71.

Van-Packer asserts that there are at least “genuine disputes of material fact” which

preclude the entry of summary judgment. Corrected Resp. Mot. Summ. J. 28. But this is not a

case of competing evidence—it is an absence of evidence. Van-Packer provides nothing but

speculation connecting the warranties and damages, which is not sufficient to withstand

summary judgment. See, e.g., Osborn v. JAB Mgmt. Servs., Inc., 126 F.4th 1250, 1258 (7th Cir.

2025) (“[T]he nonmovant must come forward with enough evidence to place her version of

events beyond the level of mere speculation or conjecture.” (quotation marks omitted)).

Van-Packer also asserts that Airgas’s arguments proceed from a flawed understanding of

its claims, i.e., Airgas improperly implies that “Van-Packer’s claims are based on the 309L wire

itself or Airgas’s failure to advise Van-Packer to anneal the product caused the cracked welds.”

Corrected Resp. Mot. Summ. J. 28–29. Van-Packer states instead that Airgas sold Van-Packer

on the idea that 309L wire would be the cure-all for its cracked weld problem, such that it is “is

seeking relief for the damages caused by the 309L wire purchased from Airgas failing to

remedy/prevent the cracked welds.” Id. at 29. Van-Packer posits that it need only demonstrate

that the good “not acting otherwise as warranted [wa]s a but-for cause of foreseeable damages

for which the plaintiff is seeking relief” and that it has satisfied that burden because “Airgas

represented 309L wire was the solution to the cracked welds problem, yet 309L wire did not

remedy the cracked welds.” Id. Van-Packer’s distinction between causing cracks and failing to

prevent cracks does not negate its burden to connect the warranties to its damages. The

implication of Van-Packer’s argument is that the mere fact that the Projects’ rectangular grease

ducts cracked even though Van-Packer used 309L wire is sufficient to prove proximate cause.

But this argument is circular—the issue here is still that the Court has no evidence as to why the

ducts cracked.

Finally, Van-Packer argues that other potential causes—such as welder technique or

material composition—were reasonably foreseeable causes of the Projects’ rectangular grease

duct cracks. Corrected Resp. Mot. Summ. J. 30–32. Van-Packer asserts that Edge’s initial

warranty in April 2020 that using 309L wire would remedy the cracked welds issue was not

“preface[d],” i.e., limited by, “technique or procedure.” Id. at 31. Kowalski visited Van-

Packer’s facility in July and August 2020, allowing him to “witness[] the welding techniques and

materials used by Van-Packer” for the Projects’ rectangular grease ducts, and reiterated that

309L wire would remedy the issue—he did not limit this recommendation based upon Van-

Packer’s techniques or materials. Id. That “chemical composition, welding technique and other

variables could affect the 309L wire’s effectiveness in preventing cracked welds” was only

mentioned to Van-Packer by Kowalski “after the cracked welds had already developed with

products for which 309L wire was used.” Id. at 31; see also May 25, 2021 Email from Kowalski

to Sims & Rosengren, Resp. Mot. Summ. J. Ex. 10, ECF No. 51-10 (identifying possible causes

of the cracks, including welder technique and the “[c]hemical composition” of the “[b]ase metal

itself”). Van-Packer argues that it has demonstrated an unbroken chain of proximate causation

because Airgas did not caveat its warranty regarding 309L wire based upon those variables

despite being demonstrably aware that such variables could impact the 309L wire’s

effectiveness. Airgas describes this as Van-Packer’s “absurd, unsubstantiated proposition that

Airgas somehow knew, or should have known, about the flawed welding techniques and

materials, and that the claimed warranty included the use of flawed welding techniques and

materials.” Reply Mot. Summ. J. 11.

Even assuming that Van-Packer is correct that Airgas had knowledge of every relevant

aspect of Van-Packer’s production process and materials based on a few conversations and in-

person visits, it still does not excuse Van-Packer’s failure to provide causal evidence connecting

the warranties to the Projects’ rectangular grease duct cracks. As Airgas rightfully notes, “[t]he

cracks could have been caused by the methods by which the Van-Packer products were loaded,

transported, unloaded, stored, and/or installed after they were manufactured, or other factors, and

have nothing to do with the way they were manufactured.” Id. at 11. More fundamentally, the

issue is not whether these other causes were reasonably foreseeable and therefore severed a chain

of proximate causation. Instead, the issue is that there is no chain of proximate causation to

sever—the record is devoid of any evidence regarding what caused the cracks, such that

summary judgment is warranted against Van-Packer on its warranty claims. See Harris, 34 F.

App’x at 489–90; Giles, 500 F. Supp. 2d at 1070–71.

Simply put, Van-Packer failed to provide any evidence that using 309L wire without

annealing was causally connected to the Projects’ rectangular grease duct cracks, and therefore

has failed to establish evidence which would allow a reasonable trier of fact to find in its favor

on either its express or implied warranty claims. Because the Court finds in Airgas’s favor on

this point, the Court need not consider whether the warranties were ever formed or disclaimed.

CONCLUSION

Accordingly, Defendant Airgas USA, LLC’s Motion for Summary Judgment, ECF No.

50, is GRANTED. The Clerk is directed to enter judgment and close the case.

Entered this 20th day of August, 2025.

s/ Sara Darrow

SARA DARROW

CHIEF UNITED STATES DISTRICT JUDGE