FIRST DIVISION                                                             SEPTEMBER 9, 1996No. 1-94-4150IZZIE BAYLIE and AMANDA BAILEY,              )    APPEAL FROM THEas Special Administrator of the              )    CIRCUIT COURTEstate of FOREST BAILEY,                     )    OF COOK COUNTY.                                        )          Plaintiffs-Appellees,                   )                                             )v.                                           )                                        )SWIFT & COMPANY,                             )    HONORABLE                                             )    LEONARD GRAZIAN,          Defendant-Appellant.                    )    JUDGE PRESIDING.     PRESIDING JUSTICE CAMPBELL delivered the opinion of thecourt:     Defendant, Swift & Co. (Swift) appeals from a $6.2 millionjudgment entered against it and in favor of plaintiffs, IzzieBaylie and Amanda Bailey, as special administrator of the Estateof Forest Bailey.  On appeal, Swift contends that:  (1) the trialcourt erred in striking its affirmative defense of laches;(2) the trial court erred in failing to dismiss the action basedon laches; (3) the trial court erred in failing to grant Swift'smotion for judgment notwithstanding the verdict; and (4) thetrial court erred in failing to grant Swift's motion for a newtrial, based on alleged enumerated trial errors.  For the follow-ing reasons, we affirm.BACKGROUND     The following facts are relevant to this appeal.  IzzieBaylie (Izzie) and his brother Forest Bailey (Forest) wereinjured as a result of an explosion and fire that occurred onJuly 6, 1963, at the A. Cramer Company (Cramer), in Oak Lawn,Illinois.  Izzie and Forest were employed by Cramer, a custommilling operation, to grind calcium stearate for use in a soapproduct manufactured by Swift.          Plaintiffs filed a negligence action in 1964, alleging thatSwift had failed to warn Cramer that calcium stearate presented arisk of explosion under certain circumstances.  Following a jurytrial in May 1971, the trial court directed a verdict for Swift. In December 1975, this court reversed and remanded the case for anew trial, finding the jury should have been permitted to deter-mine whether Swift had a duty to warn plaintiffs of the danger ofa calcium stearate dust explosion.  Baylie v. Swift & Co., 27Ill. App. 3d 1031, 327 N.E.2d 438 (1975) (Baylie I).     In July 1994, the case was re-tried before a jury resultingin a $6.2 million judgment against Swift.  Much of the evidencepresented at the 1994 trial duplicates the evidence presented inBaylie I.  Therefore, we recite the facts only to the extentnecessary to resolve the matters now before us.1994 TRIAL     At trial, William Blew testified that he was employed bySwift as a chemical engineer in research and development depart-ment from 1951-1971.  Swift manufactured various types of soaps,the components of which were produced as a by-product of its meatproduction operations.  In 1959, Blew developed and patented amethod for efficiently producing calcium stearate in solid form.     Swift eventually discovered other markets for calciumstearate, including uses as an anti-caking agent in salt, cos-metics and pharmaceuticals, and as a waterproofing agent.  Forthese applications, calcium stearate had to be crushed to a non-uniform grind, resulting in a "325 mesh" fine powder form.  Toachieve a 325 mesh, the ground substance must pass through ascreen consisting of 325 openings per square inch. In 1959, Swiftcontracted with Cramer to grind the calcium stearate to 325 meshbecause Swift did not have the means or the expertise to do so.       Blew had no knowledge that calcium stearate was flammable orexplosive.  However, Blew stated that if he had reason to believethat a product created by Swift was either flammable or combust-ible, Swift was responsible for testing its product.  Blew wasnot knowledgeable about dust explosions.  Although he was gener-ally familiar with the Federal Bureau of Mines (Bureau), he didnot know that the Bureau could test compounds manufactured byindustry for explosibility.     Blew testified that the general properties of a materialwere determined at Swift's research center which employed chemists and chemical engineers.  Swift's research center anal-yzed calcium stearate for numerous properties.  Although Swiftwas equipped to determine the flash point of materials, Swift didnot determine the flash point of calcium stearate.     The 1971 trial testimony of Dr. Robert Causland, and OakLawn Fire Captain Earl Vogelsanger was read to the jury.        Causland testified that on the basis of his own testing ofcalcium stearate, the material was not flammable.  Causlandinformed Cramer personnel that the material was not flammable. On his visits to the Cramer plant, Causland noticed gray-whitedust coming from the grinding area, but never called the atmo-spheric condition of the plant to the attention of Cramer person-nel.  Causland denied talking to Izzie Baylie on the telephone inlate June or early July 1963 regarding a calcium stearate orderfrom Monsanto Chemical.  Causland stated that he left for vaca-tion on June 29 or June 30, and returned on July 13, 1963.  SeeBaylie I, 27 Ill. App. 3d at 1035.       Vogelsanger determined that the explosion in the grindingroom was caused by an accumulation of dust, which is a hazardouscondition in any mill.  On almost every prior inspection of the Cramer plant, the Fire Department found an accumulation of dust,which they recommended be cleaned up.  Vogelsanger concluded thatthe plant was not cleaned as requested.  See Baylie I, 27 Ill.App. 3d at 1039.     In addition, the evidence deposition of Matthew Hannon, whodied prior to the 1971 trial, was read into the record.  Hannonwas the general manager of the Cramer plant beginning in 1960.Neither Hannon nor his predecessor, Gerald Lewis, had any back-ground in grinding or pulverizing.  Hannon stated that it wasCramer's policy not to accept flammable or explosive materialsfor grinding.  Hannon consulted with his partners, Dr. Siehrs andDr. Cramer, as well as with a chemical book, before accepting aparticular product for grinding.  See Baylie I, 27 Ill. App. 3d1037-38.       Plaintiff then read Swift's answers to certain interroga-tories into the record.  The interrogatories were answered byGeorge Mehl, the leader of the Soap Division at Swift at the timeof the explosion.  Mehl stated that Swift employed "scores ofchemists and chemical engineers," and that Swift supervisorypersonnel, including Causland and Mehl, visited the Cramer planton numerous occasions.  Mehl further stated that Swift gave nowarning to Cramer or any employees regarding the probability ofinstantaneous combustion, explosion or flash fire resulting fromthe dust suspended in the atmosphere during the pulverization ofcalcium stearate.  Mehl stated that calcium stearate is non-flammable, and therefore does not have the requisite propertiesto arrive at a flash point.     Dr. Chester Grelecki then testified as an expert witness onplaintiffs' behalf. Dr. Grelecki is the president and chiefscientist of Hazards Research Corporation (Hazards), a consultingfirm which provides hazardous material testing services to thechemical processing industry.       Dr. Grelecki defined an explosion as a very rapid expansionof a high pressure gas.  A dust explosion occurs where the sourceof the high pressure gas combusts, emitting finely dispersedparticles into the atmosphere.  The properties that control theviolence of the dust explosion are the rate at which the dustburns, and how fast it produces expandable gas.  The faster thedust produces the gas, the more violent the explosion.     The rate at which dust produces gas depends on how finelythe dust is divided.  A small particle is consumed by flamefaster.  Very tiny 10 micron particles, the average size ofparticles used in the milling operations, have a very rapid rateof consumption by flame.     Dr. Grelecki stated that calcium stearate does indeed have aflash point when pulverized.  Before any material burns, it mustvaporize.  Combustion occurs during the vapor phase in thevisible flame.  When heated to the point of liquification,calcium stearate would have enough vapor to burn.     In 1971, Hazards evaluated the explosibility of calciumstearate, based on the standards established in 1960 by theFederal Bureau of Mines (Bureau).  The Bureau was created tomeasure the explosibility of coal dusts in the 1920s or 1930s. In the late 1930s or early 1940s, the Bureau performed explosi-bility tests on other materials for the chemical industry.  Assuch, Dr. Grelecki stated that Swift could have submitted calciumstearate to the Bureau in the 1950s for an evaluation at anestimated cost of $20.   Prior to 1968, the Bureau tested thou-sands of chemicals for explosibility and filed reports.  A Bureaureport published in that year concluded that calcium stearatedust constituted a severe explosion hazard.  This informationcould have been known in the 1950s through testing methodsavailable, although the Bureau did not test calcium stearate forexplosibility until 1968.     Hazards performed tests on three different sizes of calciumstearate; the smallest sample milled at 325 mesh.  The 325 meshsample had the fastest reaction time in burning and exploding,giving it a severe rating comparable to that of cornstarch, whichhas been long known to be a severe hazardous dust.       Hazards' evaluation revealed that a 325 mesh particle couldignite with a spark.  Dr. Grelecki explained that dust explosionscome in pairs: first there is a small explosion which dispersesother material into the atmosphere, thereby causing a second,larger explosion.      In Dr. Grelecki's opinion, based upon a reasonable degree ofcertainty relating to physical chemistry in fire and explosionhazards, the cause of the explosion on July 6, 1963, was thecombustion of finely divided calcium stearate.  His opinion wasbased on the fact that calcium stearate was the only material inthe area in quantities large enough to produce the resulting explosion effects that resulted.  In Grelecki's opinion, Swifthad the responsibility to divulge to Cramer the combustioncharacteristics of calcium stearate because Swift manufacturedthe material.      Dr. Grelecki further opined that the ventilation and theelectrical facilities in the Cramer plant were inadequate, andthat the equipment being used was not adequate for millingcalcium stearate to 325 mesh and packing it in the manner inwhich it was packed.  These conditions should have been apparentto Swift, as Swift representatives visited the Cramer plant andsaw that housekeeping was poor and that there was dust in theatmosphere.  Dr. Grelecki stated that Swift should have knownduring the first week of July 1963, when Cramer employees wereworking a double shift to satisfy a rush 800-bag-40,000 poundorder, that Cramer was not equipped to operate two mills at thesame time for the first time, because it would double the amountof dust in the atmosphere.     On cross-examination, Dr. Grelecki admitted that if Swifthad searched the scientific literature available regarding theexplosive possibilities of calcium stearate prior to the time ofthe explosion, Swift would not have found any published reportsor articles.  The explosion occurring on July 6, 1963, is theonly explosion of calcium stearate about which Dr. Grelecki isaware.     Izzie Baylie testified that he began working at the Cramerplant in 1958. Shortly thereafter, Forest Bailey and Izzie'sbrother-in-law James Allen began employment at Cramer.      Initially, Izzie operated the crusher machine which crushedmaterial through a 50 mesh screen. Izzie described the workenvironment as "real dirty."  He stated that the workers had tochange clothes and wash their glasses often.  Smoking was notpermitted inside the grinding plant.         After six months, Izzie began working with calcium stearateevery day.  The material was delivered from Swift in 50-poundboxes twice a week, and Izzie broke large chunks of the materialwith a sledgehammer in order to fit the pieces into the crushingmachine.  The material was then lifted by truck in a pallet, andput into 50-pound drums, which were driven over to the microgrinding mills, numbered 5 and 6.  Prior to July 6, 1963, the twomills had never been operated simultaneously.  Izzie describedthe grinding operation in great detail, as he did in Baylie I. See Baylie I, 27 Ill. App. 3d at 1036-37.         Izzie testified that to his knowledge, Causland was incharge of calcium stearate production for Swift.  Causlandvisited the Cramer plant once or twice a week when Cramer wasmilling calcium stearate.  On those occasions, Causland checkedthe different pulverizing strains in the lab, then returned tothe plant and retrieved some of the calcium stearate out of abag.  Causland  either weighed the material in the plant or tookit into the lab.     Cramer ran two shifts during the month of June 1963.  Thefirst shift worked 7 a.m. until 3:30 p.m., and the second shiftworked from 3 p.m. until 11:30 p.m.  Izzie stated that on aFriday, in latter part of June 1963, Causland called and  ordered600 bags of calcium stearate for delivery in five or six days. Izzie said he could not have that many bags ready in that timewith only one machine running.  Izzie told Causland that machineno. 6 was out of operation, explaining that the machine had to berefitted with new parts in order to pulverize to a 325 mesh.     The parts arrived on the following Tuesday, July 2.  On WednesdayJuly 3, five Cramer employees worked the day shift, and fourworked the night shift.  On July 4th and 5th, both machines wererunning simultaneously.       When Izzie came into work in the morning after both machineshad been running, the plant was full of dust, and there was dustin the air.  Exhaust fans helped to clear some of the dust untilthe mills started again.       Izzie stated that he spoke with Causland on Friday,July 5th, around 11 a.m.  At that time, Causland stated that theorder had been increased to 800 bags.  Izzie stated that theywould have to work over the weekend to fill that order.     On Saturday, July 6, Izzie arrived at work at 6 a.m.  Allenand Forest worked with Izzie that day.  Izzie was expecting twoother men, but they failed to show up.  The three men startedoperating both mills, rotating the various jobs required.        Later in the morning, as Izzie was stitching bags, he hearda boom.  He looked back and saw a ball of fire between each dustcollector on the north wall.  Izzie was on fire, and he fell onsome bags.  Izzie went to check on Forest and Allen.  Immediatelythereafter, another explosion occurred, and Izzie was catapultedout of the building.  Prior to July 6, 1963, Izzie did not knowwhether or not calcium stearate was flammable or combustible.     The parties stipulated that Dr. Archie Cramer died in July1993, and Dr. Arthur Siehrs died in May 1987.  The partiesfurther stipulated that Izzie Baylie has a life expectancy of13.1 years.     Swift introduced the prior trial testimony of George Mehl,who died in April 1993.  From 1959 until 1963, Mehl was thesuperintendent of the soap division.  Mehl visited the Cramerplant four to five times.  He passed through the milling areavery quickly to get to another part of the plant, because he wasthere to sample random lots of product and to inspect packaging. He made no observations of the manufacturing area because he wasa guest in Cramer's plant.     Following closing arguments and jury instructions, the juryreturned a verdict in favor of plaintiffs and against Swift,awarding $4,250,000 to Izzie Baylie and $1,950,000 to the estateof Forest Bailey.  The trial court entered an order denyingSwift's post trial motion in its entirety on October 27, 1994. This timely appeal followed.OPINION     Initially, Swift contends that the trial court erred instriking Swift's defense of laches, and in failing to dismiss theaction on the basis of laches.  Swift argues that plaintiffs areguilty of laches on the following bases:  plaintiffs demonstrateda lack of due diligence in bringing the case to trial, evidencedby the various periods of inactivity between the time the casewas renumbered after remand in 1975 and the trial in 1994;plaintiffs offered no plausible excuse or reason for the delayand lack of diligence;  Swift was seriously prejudiced by plain-tiffs' dilatory conduct in that over the years, a number of wit-nesses died or became incompetent and the law changed in Illi-nois, thereby depriving Swift of the defense of contributory neg-ligence; and the impact of the time delay on the jury reflectedpoorly upon Swift.     Laches is defined to be such neglect or omission to assert aright, taken in conjunction with lapse of time of more or lessduration, and other circumstances causing prejudice to an adverseparty.  National Underground Construction Co. v. E. A. Cox co.,273 Ill. App. 3d 830, 652 N.E.2d 1108 (1995); Renth v. Krausz,219 Ill. App. 3d 120, 123, 579 N.E.2d 11 (1991).  A party isguilty of laches which ordinarily bars the enforcement of hisright where he remains passive while an adverse claimant incursrisk, enters into obligations, or makes expenditures for improve-ments or taxes.  Pyle v. Ferrell, 12 Ill. 2d 547, 147  N.E.2d 341(1958).       Laches is an equitable doctrine to be invoked or rejected inthe trial court's discretion.  Miller v. Bloomberg, 126 Ill. App.3d 332, 466 N.E.2d 1342 (1984).  In any event, the mere passageof time does not establish laches.  Cox, 273 Ill. App. 3d at 834;Patrick Media Group v. City of Chicago, 255 Ill. App. 3d 1, 7,626 N.E.2d 1066 (1993).       In the present case, the record shows that the case wasreinstated and renumbered twice, both in 1975 and 1993, withoutobjection by Swift.  The record shows that Swift had at the veryleast two opportunities to file a motion to dismiss the casebased on laches, and failed to do so.   Both parties were grantednumerous motions to continue the case.  On February 4, 1993,attorneys from both sides met in the chambers of Judge O'Connelland agreed to make final trial preparations and to renumber thecase with a "93 L" number.  An agreed order between plaintiffs'attorney Leonard Ring and the Hinshaw Culbertson law firm settingthe case for trial was entered on February 11, 1993.        Between June 4, 1993, and January 27, 1994, the case wascontinued several times at the request of both parties.  OnFebruary 4, 1994, Leonard Ring died.  Two months later, the trialcourt entered an agreed order continuing the case until June 8,1994.  On May 26, 1994, the law firm of Cassiday Shade and Gloorwas granted lave to substitute its appearance for the Hinshawfirm.  The next day, Swift filed its motion to dismiss the casebased on laches, which was denied by the trial court.  Plaintiffsfiled their fourth amended complaint on June 7, 1994, and Swiftfiled its answer including an affirmative defense of laches. Plaintiffs moved to strike Swift's defense of laches.     An evidentiary hearing commenced on the issue of Swift'slaches defense.  The laches hearing reveals that between 1975 and1989, Ring made a few attempts to get the case back on the trialcall.  Hinshaw attorney Joseph O'Connell testified that at somepoint, he considered the case abandoned by the plaintiffs, butthat he did nothing.  O'Connell stated that between the Hinshawfirm and Ring, no time formal rules were followed regarding, forexample, disclosure of expert witnesses, answering interroga-tories, or substituting witnesses.  All agreements were oral,including O'Connell's agreement to wait until trial to present alaches motion, at Ring's request.  O'Connell further testifiedthat Leonard Ring died in the course of negotiating a settlementwith Swift out in California.  Based on this testimony the trialcourt concluded that laches was not an appropriate defense atthis late date in the lawsuit.       In determining whether a party has reinstated a case withina reasonable time, a trial court should take into account thetotality of the circumstances, particularly any reason profferedfor undue delay.  Cox, 273 Ill. App. 3d at 836.  The totality ofthe  circumstances necessarily includes the conduct of the defen-dants.  "[T]he propriety of applying the doctrine of lachesdepends on the conduct and situation of all the parties, notsolely upon those of one."  O'Brien v. Meyer, No. 1-94-2874(May 17, 1996), slip op. at 10 (citing 27 Am Jur 2d Equity �162(1966)).  Furthermore, an adverse party may not take advantage ofa delay to which he has contributed; and laches may not beimputed from a plaintiff's delay in pursuance of an agreementwith the defendant that the latter will not take advantage of itor under such circumstances as to show an acquiescence in thedelay by the defendant.  It is also said that a continued recog-nition or acknowledgement by the defendant of the plaintiff'sright is generally sufficient to account for delay; and that thedefendant's silence or other conduct may indicate acquiescence inthe plaintiff's right.  O'Brien, slip op. at 11 (citing 30AC.J.S. Equity �147 (1992)).     Our supreme court has stated that "it is only when by delayor neglect to assert a right the adverse party is lulled intodoing that which he would not have done or into omitting to dothat which he would have done * * * had the right been properlyasserted that the defense of laches [will] be considered." Rogers v. Barton, 386 Ill. 244, 253, 53 N.E.2d 862 (1944).  Underthe facts and circumstances of the present case, we find that anydelay in going forward with the case is attributable to bothsides.  Therefore,  the trial court properly struck Swift'saffirmative defense of laches.       We also find unavailing Swift's argument that it was seri-ously prejudiced by the unavailability of witnesses.  The casesrelied upon by Swift are distinguishable. See, e.g., Resnick v.Reznitsky, 56 Ill. App. 3d 418, 371 N.E.2d 1114 (1977) (In anaction for breach of an oral trust, decedent's heirs delayedasserting their claim for 14 years until all witnesses who couldtestify as to the nature and extent of the decedent's assets haddied).  In the present case, there is no evidence that plaintiffsknowingly and voluntarily caused the delay in this case in orderto ensure that all possible witnesses were deceased at the timeof trial.  Forest Bailey and Matthew Hannon died prior to thefirst trial in 1971.  Hannon's deposition testimony taken priorto the 1971 trial was read into the record in its entirety.  Therecord shows that Swift failed to depose either Archie Cramer orArthur Siehrs at any time prior to their deaths in 1993 and 1987respectively.  Plaintiffs and defendants were equally impacted bythe unavailability of witnesses and the passage of time.        As stated above, laches is discretionary with the trialcourt, and is not appropriate based on time alone.  Because Swifthas not provided any evidence to show a complete abandonment ofthe case by the plaintiffs, the trial court properly refused todismiss the case based on laches.     Swift's further argument that it should have been allowed toproceed to trial under the contributory negligence theory avail-able prior to the law establishing comparative negligence inAlvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981), is unsup-ported by any citation to authority.  Alvis clearly states thatthe law stated therein is to apply to all cases in which trialcommences after June 8, 1981.  Alvis, 85 Ill. 2d at 28.     Next, Swift contends that the law of the case, as set forthin Baylie I, limits the imposition of a duty to warn to theelements of the duty as set forth in the Restatement (Second) ofTorts, section 388.  See Baylie I, 27 Ill. App. 3d at 1042. Swift argues that it is not liable under section 388 because itdid not know of a risk of calcium stearate, nor did it havereason to believe that the plaintiffs would not appreciate such arisk.      However, Baylie I did not hold that upon retrial, plaintiffswere limited to proving the elements of section 388.  Baylie Ireversed a directed verdict for Swift, and remanded the case fora new trial to allow the jury to make a factual determination.     The Baylie I court stated that under Illinois law, "a dutyto warn exists where there is unequal knowledge, actual orconstructive, and the defendant, possessed of such knowledge,knows or should know that harm might or could occur."  Baylie I,27 Ill. App. 3d at 1042 (citing Kirby v. General Paving Co., 86Ill. App. 3d 453, 229 N.E.2d 777).  The court continued that analternative formulation of the duty is found in section 388, andconcluded that there was sufficient evidence presented at thefirst trial for a jury to conclude that all of the conditions ofsection 388 were met.  The law of the case therefore did notprevent the current jury from considering whether Swift had aduty to warn.     In the present case, the record shows that Swift did nottest calcium stearate for flammability, although the means to doso were available at that time.  While it is undisputed thatthere was no scientific literature available at the time thatcalcium stearate dust presented a possible hazard, literature wasavailable showing that fine dust of other materials presented ahazard of explosion.  Swift could have submitted a sample to theBureau of Mines for testing.  In the alternative, Swift had alarge research department capable of testing the material for itsflash point, and could have performed the same test using equip-ment designated by the Bureau of Mines.      Swift further argues that the trial court erred in failingto instruct the jury that under section 388(b) of the Restate-ment, Swift had no reason to believe that Cramer or the plain-tiffs would not appreciate any potential risks involved in grind-ing calcium stearate.  Section 388(b) limits liability to thesupplier of chattel if the supplier "has no reason to believethat those for whose use the chattel is supplied will realize itsdangerous condition."     Jury instructions are provided to inform the jury of thecorrect principles of law which apply to the evidence presented.Poelker v. Warrensburg Latham Community Unit School Dist. No. 11,251 Ill. App. 3d 270, 621 N.E.2d 940 (1993); Gaskin v. Gold-wasser, 166 Ill. App. 3d 996, 1009, 520 N.E.2d 1085, 1092 (1988). The trial judge has discretion in determining which issues havebeen raised by the evidence and which instructions will betendered to the jury.  Ralston v. Plogger, 132 Ill. App. 3d 90,98, 476 N.E.2d 1378, 1383 (1985).       In the present case, the jury was instructed that defendantswere negligent in one or both of the following respects in thatthey:          "(a)  Supplied its calcium stearate to Cramer          for pulverizing without adequate testing for          flammability, combustibility and its ability          to explode while in a fine powder form;          "(b)  Failed to warn employees of Cramer that          calcium stearate was capable of burning,          combusting and exploding in 325 mesh form          when Swift knew, or should have known, that          its calcium stearate was susceptible to burn-          ing, combusting and exploding while in fine          powder form."The above instructions reflect the correct principles of lawapplied to the evidence presented at trial.  Swift has not shownthat it was seriously prejudiced by the trial court's refusal togive its instruction based on section 388(b), where meeting theconditions of section 388 were not a requirement of this case.      Next, Swift contends that the law of the case based on Baylie I established that Swift had no duty to test calciumstearate in 325 mesh form prior to supplying it to Cramer forgrinding.       Prior to trial, plaintiffs moved to amend their complaint toinclude an allegation that Swift violated its duty to adequatelytest calcium stearate in 325 mesh form.  Meanwhile, Swift movedin limine to bar argument at trial that Swift should have testedcalcium stearate in 325 mesh form.  The trial court denied theplaintiffs' motion without prejudice, and denied Swift's motionin limine, reserving its ruling until hearing the evidence attrial.  The trial court noted that the case was "couched innegligence," and that numerous issues would arise during thetrial as the facts unfolded.     In Baylie I, this court held that while plaintiffs providedno authority for their contention that Swift owed them a duty to"exercise reasonable care to discover [the] dangerous conditionor character [of calcium stearate], and to inform those whom(Swift) should expect to use it," that Swift's failure to use itsfacilities to test calcium stearate was relevant to the determi-nation of whether Swift had reason to know that the product waslikely to be dangerous, and that this was a proper question forthe jury.  Baylie I, 27 Ill. App. 3d at 1045.          The evidence at trial in fact disclosed that Swift had thecapability to test the material for flammability and explosi-bility, but that it failed to do so.  Evidence of the so-called"duty to test" was thus intertwined with Swift's duty to warn andwas properly before the jury.     Next, Swift contends that it owed no duty to plaintiffsbecause they were employed as independent contractors.  Swift'sreliance on Fris v. Personal Prods. Co., 255 Ill. App. 3d 916,627 N.E.2d 1265 (1994), and Weber v. Northern Illinois Gas Co.,10 Ill. App. 3d 625, 295 N.E.2d 41 (1973), is misplaced.  Frisheld that an owner of a building owed no duty to an employee ofan independent contractor with respect to injuries the employeesuffered in connection with a routine and incidental aspect ofhis job.  Fris, 255 Ill. App. 3d at 925. (Emphasis supplied).     The present case is distinguishable from construction casesinvolving "methods of work," as in Fris.  Here, Swift providedthe calcium stearate product to Cramer for grinding.  As such,Swift had a duty to warn of any dangers involved with workingwith the product.     Swift further contends that even if it breached a duty owedto the plaintiffs, that breach was not the sole proximate causeof the plaintiffs' injuries, therefore it is not liable.  Swiftargues that the conduct of Cramer and/or the plaintiffs was thesole proximate cause of the explosion that injured the plain-tiffs.      In any negligence action, the plaintiff bears the burden ofproving not only duty and breach of duty, but also that defendantproximately caused plaintiff's injury.  Smith v. Eli Lilly & Co. 137 Ill. 2d 222, 232, 560 N.E.2d 324 (1990); see 1 M. Polelle &B. Ottley, Illinois Tort Law Sec. 14.23 (2d ed. 1994).)  A defen-dant in a negligence action may provide a defense that he is notthe sole proximate cause of a plaintiff's injury.  Leonardi v.Loyola University, 168 Ill. 2d 83, 658 N.E.2d 450 (1995).  Thedefense does not mean that the plaintiff must prove that thedefendant is in fact the sole proximate cause of plaintiff'sinjury.        In the present case, the evidence did not reveal that Cramerwas the sole proximate cause of the plaintiffs' injuries.  Cramerwas not a defendant in this case.  The jury found that Swiftbreached its duty to warn plaintiffs of the hazards associatedwith the milling of calcium stearate and entered its verdictaccordingly.     Swift also contends that substantial evidence was presentedat trial for the jury to find Izzie Baylie comparatively negli-gent.  However, the evidence at trial failed to prove that IzzieBaylie was careless and negligent in any of the ways alleged bySwift.  The evidence revealed that Izzie had less than a fourthgrade education, and no education, training or experience regard-ing the explosibility of calcium stearate dust.  Thus, the trialcourt properly refused instruct the jury on the theory of con-tributory negligence.     Next, Swift contends that the trial court erred in admittinginto evidence Causland's testimony that calcium stearate was notflammable.  Swift argues that this evidence violated the law ofthe case established in Baylie I.     In Baylie I, this court struck plaintiffs' counts based onnegligent misrepresentation because there was no evidence attrial which suggested that anyone at Cramer relied on Causland'salleged misrepresentation that calcium stearate is non-flammable. Baylie I, 27 Ill. App. 3d at 1045.  The court did not rule thatCausland's testimony was inadmissible.  Thus, admission ofCausland's testimony on re-trial was not against the law of thecase.     Swift also contends that the trial court improperly excludeda certain portion of Mehl's testimony as hearsay.  The trialcourt excluded Mehl's account of a conversation he had withMatthew Hannon (also deceased) as follows:          "Mr. Hannon expressed concern that he consid-          ered their operation of a rather classified          nature.  He didn't -- he didn't want people          to observe it too closely."Swift argues that the statement was proper because it explainedwhy Mehl walked through the plant quickly, and because it wasadmitted in the 1971 trial without any objection.     We find that the trial court properly excluded that portionof Mehl's testimony as hearsay because it was offered to provethe truth of the matter asserted, e.g., that Cramer prohibitedSwift employees from observing the Cramer grinding facilities.     Swift further contends that the trial court erred in denyingits motion in limine to bar Dr. Grelecki from testifying regard-ing Swift's duty to warn plaintiffs of the dangers of calciumstearate.        In support, Swift cites Coyne v. Robert H. Anderson &Assoc., Inc., 215 Ill. App. 3d 104, 574 N.E.2d 863 (1991) andSohaey v. Van Cura, 240 Ill. App. 3d 266, 607 N.E.2d 253 (1992). Both cases are distinguishable.  In Coyne, the issue was whatresponsibilities an engineering firm had both by contract andunder the Structural Work Act, regarding a construction project. This court held that this was a factual determination to be madeby the jury, and therefore expert testimony as to who was "havingcharge of the work" was improper because the jury could make thatdetermination without expert testimony.  Coyne, 215 Ill. App. 3dat 112.     Similarly, in Sohaey, this court found that the trial courtproperly excluded expert testimony as to the standard of care forreal estate brokers because an expert witness is not competent to testify regarding statutory interpretation or to make conclusionsa jury could make without the testimony.  Sohaey, 240 Ill. App.3d at 283.     In the present case, Grelecki's testimony was not premisedon case law and statutes.  Grelecki testified as to Swift'sresponsibilities within the chemical manufacturing industry,based on his education and experience.  Therefore, Grelecki'stestimony was proper.     Finally, Swift contends that the trial court erred instriking a portion of Swift's cross-examination of Grelecki andin barring defense counsel from questioning Grelecki regardingthe fact that he failed to offer opinions in the 1971 trial.      The record shows that Swift sought to impeach Grelecki byomission.  The trial court reviewed Grelecki's testimony inBaylie I, and determined that there was not sufficient informa-tion to conclude that Grelecki should have expressed the sameopinions in the first trial.  The trial court found that Greleckiwas not retained to testify for the same purposes in the 1971trial.  Thus, the trial court properly barred Swift from attempt-ing to impeach Grelecki by omission.      For all of the reasons stated above, we therefore affirm thejudgment of the circuit court.     Affirmed.     BUCKLEY, J., and BRADEN, J., concur.