McKinney v. Hobart Brothers Co. , 2018 IL App (4th) 170333 ( 2019 )

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McKinney v. Hobart Brothers Co., 2018 IL App (4th) 170333
Appellate Court CHARLES MCKINNEY, Plaintiff-Appellee, v. HOBART
Caption BROTHERS COMPANY, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-17-0333
Filed September 5, 2018
Rehearing denied October 2, 2018
Decision Under Appeal from the Circuit Court of McLean County, No. 12-L-27; the
Review Hon. Rebecca S. Foley, Judge, presiding.
Judgment Reversed.
Counsel on Jeffrey S. Hebrank and Meghan C. Kane, of HeplerBroom LLC, of
Appeal Edwardsville, and Michael T. Reagan, of Ottawa, for appellant.
Chip Corwin and James Wylder, of Wylder Corwin Kelly, LLP, of
Bloomington, for appellee.
Panel JUSTICE CAVANAGH delivered the judgment of the court, with
opinion.
Justices Holder White and DeArmond concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, Charles McKinney, has mesothelioma, a disease he contracted by inhaling
asbestos fibers. He brought an action against defendant, Hobart Brothers Company, for failing
to warn him of the dangerousness of asbestos-containing welding rods that defendant had
manufactured and to which plaintiff came in close proximity for eight months in the early
1960s. A jury returned a verdict against defendant and in his favor. Defendant appeals, arguing
that the trial court should have granted its motion for judgment notwithstanding the verdict.
¶2 For all that appears in the record, the industry to which defendant belonged had no
knowledge in the 1960s that welding rods could release asbestos fibers. Defendant could not
have owed plaintiff a duty to warn of a hazard of which defendant and the industry were
unaware. Because of the lack of duty, the trial court should have granted defendant’s motion
for judgment notwithstanding the verdict. Another reason why the court should have granted
the motion was that the record contains no evidence that the welding rods were a substantial
cause of plaintiff’s mesothelioma. Therefore, we reverse the trial court’s judgment.
¶3 I. BACKGROUND
¶4 A. The Counts Against Defendant
¶5 On February 21, 2012, plaintiff brought this lawsuit against various defendants who are not
parties to this appeal. He alleged that insulation and brakes the defendants had manufactured,
distributed, or supplied had released asbestos fibers and had caused him to contract
mesothelioma. Initially, defendant was not a party to this lawsuit.
¶6 On April 25, 2013, in two counts that plaintiff added to his complaint with the trial court’s
permission, he alleged that defendant, too, had caused his mesothelioma by willfully and
wantonly, or at least negligently, failing to warn of the dangerousness of its product. Although,
in these counts against defendant, plaintiff did not identify the allegedly dangerous product, it
soon became evident that he meant Hobart 6010 welding stick electrodes, which defendant had
manufactured for use in shielded metal arc welding.
¶7 B. A Brief Description of Defendant’s Welding Rods
¶8 Defendant manufactures welding rods, which, when introduced into an electrical arc, make
the molten material necessary to bind two pieces of base metal together. The welding rods are
made up of two parts: the steel core and the surrounding flux. Thirty years ago, the flux of
defendant’s “6010” rods contained chrysotile asbestos, a type of asbestos that can cause
mesothelioma many years after one inhales it.
¶9 C. DuPont’s Testimony
¶ 10 Defendant’s retained expert was John DuPont, a professor of materials science and
engineering. The substance of his testimony was as follows.
¶ 11 The purpose of the flux was to protect the weld when it was still in a liquid state and to keep
it clean. Keeping the molten weld clean was important because liquids could dissolve gases,
which would weaken the weld. The flux burned up in the electrical arc and, in so doing, pushed
the atmospheric gases out of the way, forming “a protective blanket of an inner atmosphere
over the liquid pool.” This was where the chrysotile asbestos in the flux served a purpose. The
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chrysotile asbestos was about 13% water, and as the water was released when the asbestos
burned, the steam served as an “arc force,” providing “deep penetration” toward the molten
weld.
¶ 12 DuPont opined that, for two reasons, it was “physically impossible” for respirable asbestos
fibers to have escaped from defendant’s welding rods.
¶ 13 First, the asbestos fibers were encapsulated. They were chemically bound to, and
completely covered by, the sodium silicate in the flux. Even if particles broke off the flux when
the welding rods were removed from a box, inserted into a Stinger (an electrode holder), or
stepped on, they would be particles of sodium silicate encapsulating asbestos—and none of
these particles would be small enough to inhale.
¶ 14 Second, the welding arc reached a temperature of 10,000 degrees Fahrenheit, and the
welding pool was at least 2700 degrees Fahrenheit. Because asbestos burned at 1500 degrees
Fahrenheit, no asbestos could have been released from the welding fume.
¶ 15 D. Frank’s Testimony
¶ 16 Arthur L. Frank, a physician and professor of occupational health, was plaintiff’s retained
expert. Because Frank, by his own admission, was not a materials scientist, industrial
hygienist, engineer, or mineralogist and had never performed, nor was qualified to perform,
any fiber testing on welding rods, defendant disputed Frank’s qualifications to opine on the
capability of defendant’s welding rods to release respirable asbestos fibers. The trial court,
however, found Frank to be sufficiently qualified and admitted his evidence deposition.
¶ 17 In his evidence deposition, Frank gave an overview of literature from the 1940s onward
that warned of the health hazards of asbestos. He believed that, for two reasons, defendant’s
welding rods were capable of giving off respirable, cancer-causing asbestos fibers. First, in his
decades of experience with asbestos, Frank had never known of an asbestos-containing
product that, if “properly manipulated,” would not give off asbestos fibers. Second, Frank
testified: “There’s the work of Dr. Dement with fibers being released from welding rods.”
¶ 18 Frank expressed the following opinion:
“[T]o the extent that [plaintiff] worked with Hobart 6010 asbestos-containing rods or
that co-workers were using them, having had prior experience with them, knowing that
they give up asbestos fibers, that the exposures that he had to asbestos from those rods
would have[,] in my opinion[,] been a substantial contributing cause to his
mesothelioma.”
¶ 19 Frank conceded that the fume would have had no asbestos in it. He testified, however:
“I’m not aware of any product that contained asbestos that[,] if manipulated[,]
could not give off asbestos fibers. So[,] you run from what’s called [‘]friable[’]
materials that can be easily crushed by hand and release dust, so some insulation
materials were like that, or a bag of raw asbestos would certainly be considered friable.
But then[,] at the other end, you have asbestos cement pipe. You would think that a
cement pipe would keep fibers in place. But if you saw or cut or bevel the edges of that
pipe, you will give off fibers, so anything in between is possible.”
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¶ 20 E. Plaintiff’s Impeachment of Hensley and the Admission
of the Impeaching Material as Substantive Evidence
¶ 21 Timothy Hensley was defendant’s corporate representative. Plaintiff’s attorney
cross-examined Hensley about reports by a research scientist, Steven Compton, and other
nontestifying third-party experts regarding their fiber testing of welding rods—even though
Hensley had never mentioned these reports on direct examination. (We will follow plaintiff’s
lead by calling these third-party reports “the Compton studies,” even though, strictly speaking,
they were not all by Compton.) Defendant’s attorney objected on the ground of hearsay and a
lack of foundation. In response to the objection, plaintiff’s attorney assured the trial court that
he was merely impeaching Hensley and that, “[a]s far as the studies actually going to the jury,
they won’t.” The court overruled the objection, and plaintiff’s attorney continued
cross-examining Hensley on the Compton studies.
¶ 22 On redirect examination, defendant’s attorney questioned Hensley in more detail about the
Compton studies, with the intention of exposing their flaws and unreliability. During his
redirect examination, he displayed pages from the Compton studies on a large screen, an
“Elmo,” so the jury could follow along.
¶ 23 Because defendant’s attorney had displayed or “published” the Compton studies to the jury
on redirect examination, the trial court agreed with plaintiff’s attorney that they should be
admitted in evidence and should be included in the jury folder, which went back to the jury
during its deliberations.
¶ 24 F. Plaintiff’s Testimony
¶ 25 For eight months in 1962 and 1963, plaintiff worked at Portable Elevator, in Bloomington,
Illinois. For seven of those eight months, his job was spot welding, using an acetylene torch
and bronze brazing rods. In addition to employing torch welders, such as plaintiff, Portable
Elevator employed stick or arc welders, who used Hobart 6010 welding rods—all of which
contained asbestos before 1979.
¶ 26 Plaintiff worked on the second floor, and the stick welders worked on a grated mezzanine,
above, which was accessed by an open, wooden stairway. The stick welders’ used welding
rods—the stubs—would fall through the grated mezzanine floor, onto the second floor, where
defendant worked. The workplace was dirty.
¶ 27 Each day at work, plaintiff took two 15-minute breaks in the break room, which was
upstairs, on the mezzanine. To get to the break room, he had to climb the steps and walk by the
stick welders, over the mezzanine floor littered with stubs. The break room had no door. It was
just an open space, with a picnic table, where workers could sit.
¶ 28 When walking by the stick welders, defendant saw boxes of welding rods. The boxes had
“HOBART” and “6010” on them. He did not know, at the time, that the welding rods
contained asbestos.
¶ 29 G. Plaintiff’s Exposure to Asbestos as a Mechanic
¶ 30 For over 40 years, plaintiff was an automobile mechanic, and, in that occupation, he
worked on brakes that contained asbestos. According to his physician, Bradley Smith, he had a
“history of asbestos exposure [from] working with brake shoes *** in the past.” Frank opined
that plaintiff’s exposure to asbestos from installing brakes “would have been a substantial
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contributing factor to [his] developing *** mesothelioma.”
¶ 31 II. ANALYSIS
¶ 32 A. Defendant’s Arguments Against Frank’s Testimony
¶ 33 1. The Claimed Violation of Rule 213(f)(3)(ii)
¶ 34 Frank was a “ ‘controlled expert witness’ ” within the meaning of Illinois Supreme Court
Rule 213(f)(3) (eff. Jan. 1, 2007) in that he was plaintiff’s “retained expert.” Therefore,
“[u]pon written interrogatory,” plaintiff was obligated to provide defendant with “the
conclusions and opinions of” Frank (among other items of information). Ill. S. Ct. R.
213(f)(3)(ii) (eff. Jan. 1, 2007). It appears to be undisputed that defendant served upon plaintiff
a timely Rule 213(f) interrogatory. Plaintiff responded with a supplemental interrogatory
answer, which, after listing Frank’s qualifications, stated as follows:
“Dr. Frank will testify regarding latency of disease, asbestos, asbestos fiber types, and
the propensity of the various asbestos fibers to cause disease in humans, including
carcinogenicity (lung cancer, mesothelioma[,] and other cancers). Dr. Frank will testify
that [plaintiff’s] mesothelioma was caused by his exposures to asbestos, including
exposures to asbestos from the products of all defendants. Dr. Frank will also testify
with respect to issues related to ‘state of the art.’
Dr. Frank is expected to testify consistent[ly] with testimony he has given in this,
and other cases, in central Illinois asbestos litigation. The transcript of his deposition
given on November 12, 2012, in this case, is available for [d]efendants upon request.”
¶ 35 The first and third sentences of this interrogatory answer consist of “subject matter” (Ill. S.
Ct. R. 213(f)(3)(i) (eff. Jan. 1, 2007)), not “conclusions and opinions” (Ill. S. Ct. R.
213(f)(3)(ii) (eff. Jan. 1, 2007)). The only explicit conclusion or opinion is in the second
sentence: “Dr. Frank will testify that [plaintiff’s] mesothelioma was caused by his exposures to
asbestos, including exposures to asbestos from the products of all defendants.” The final
sentence of the interrogatory answer states that Frank will “testify consistent[ly]” with his
discovery deposition, but, on November 12, 2012, when Frank gave his discovery deposition,
defendant was not yet a party to this case, and Frank had no occasion to discuss welding rods at
that time. Thus, the only disclosed conclusion or opinion was that defendant’s asbestos-
containing products had caused plaintiff’s mesothelioma.
¶ 36 The supreme court has stated that Rule 213 disclosures must “drop down to specifics”
(internal quotation marks omitted) (Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004)),
and it would be difficult to imagine a more general disclosure than the bare statement that
defendant’s products caused plaintiff’s mesothelioma. Under Illinois Supreme Court Rule
213(g) (eff. Jan. 1, 2007), “[t]he information disclosed in answer to a Rule 213(f)
interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness
on direct examination at trial.” Defendant argues that, because “Frank’s opinion that welding
rods [could] release asbestos fibers was not disclosed before his videotaped evidence
deposition,” the trial court should have granted defendant’s motion to bar plaintiff from
presenting to the jury the portion of Frank’s evidence deposition in which he expressed that
opinion. See Ill. S. Ct. R. 219(c)(iv) (eff. July 1, 2002); Sullivan, 209 Ill. 2d at 110 (“Where a
party fails to comply with the provisions of Rule 213, a court should not hesitate sanctioning
the party, as Rule 213 demands strict compliance.” (Internal quotation marks omitted.)).
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¶ 37 Plaintiff counters that an expert witness may testify to logical corollaries of a Rule
213(f)(3)(ii) disclosure (see Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d
30, 39 (2003)) and that the ability of defendant’s welding rods to release respirable asbestos
fibers was a logical corollary of the disclosure that “[plaintiff’s] mesothelioma was caused by
his exposures to asbestos, including exposures to asbestos from the products of all defendants.”
¶ 38 We agree. It is commonly known that mesothelioma is caused by the inhalation of asbestos
fibers. It logically follows that, if defendant’s asbestos-containing welding rods were a cause
of plaintiff’s mesothelioma (as Frank was expected to opine), the welding rods necessarily
released respirable asbestos fibers and plaintiff inhaled them. Therefore, the trial court was
within its discretion in finding no sanctionable violation of Rule 213(f)(3)(ii) in that respect.
See Sullivan, 209 Ill. 2d at 109; Madden v. Scott, 2017 IL App (1st) 162149, ¶ 23 (“[W]e will
address only the specific arguments which they have made.”).
¶ 39 2. The Reliability of Frank’s Methodology
¶ 40 In defendant’s view, “Frank’s fiber-release opinion was *** inadmissible because it was
not the product of a reliable methodology.” Frank’s methodology, according to defendant, was
to reason simply that defendant’s welding rods must have released respirable asbestos fibers
because Frank had never seen any asbestos-containing product that, if “properly manipulated,”
would not do so.
¶ 41 Frank admitted that “[t]he asbestos content of a product [was] not necessarily an indication
of its relative health risk,” given that, “[f]or many products, the fibers [were] tightly bound to
the matrix or [were] encapsulated.” Even so, he noted, “[a] potential health risk [arose] when
asbestos fibers [were] set free, for example, during drilling or sawing of asbestos cement
sheets.”
¶ 42 Plaintiff’s attorney asked Frank:
“Q. Doctor, the jury has heard the term [‘]encapsulation.[’] And have you
encountered encapsulated products that[,] even when manipulated[,] gave off no
fibers?
***
A. No, I’ve never seen a product that’s encapsulated or any product that[,] if
properly manipulated[,] wouldn’t give off free asbestos fibers.”
Later in his evidence deposition, Frank again testified:
“A. I’m not aware of any product that contained asbestos that[,] if manipulated[,]
could not give off fibers. So[,] you run from what’s called [‘]friable materials[’] that
can easily be crushed by hand and release dust, or some insulation materials were like
that, or a bag of raw asbestos would certainly be considered friable. But then[,] at the
other end[,] you have asbestos cement pipe. You would think that a cement pipe would
keep fibers in place. But if you saw or cut or bevel the edges of that pipe, you will give
off fibers, and so anything in between is possible.”
¶ 43 Defendant argues: “The mere fact that Dr. Frank personally had ‘never seen’ other
products that did not release asbestos fibers despite containing asbestos says nothing about
whether welding rods can release asbestos fibers, especially given Dr. Frank’s lack of expertise
on that question.” Defendant quotes the First District: “While testimony grounded in expert
analysis of the known physical facts is welcomed, conclusory opinions based on sheer,
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unsubstantiated speculation should be considered irrelevant” and incapable of satisfying a
plaintiff’s burden of proof. (Internal quotation marks omitted.) Wiedenbeck v. Searle, 385 Ill.
App. 3d 289, 293 (2008).
¶ 44 We agree it would be “sheer, unsubstantiated speculation” (id.) to conclude that, simply
because other asbestos-containing products, such as cement pipes, released respirable asbestos
fibers when they were sawed, cut, or beveled, defendant’s welding rods released respirable
asbestos fibers when they were jostled around in a packing box, dropped, or stepped on.
¶ 45 Plaintiff points out, however, that Frank also relied on a welding-rod study by someone
named Dement. Defendant’s attorney asked Frank in his evidence deposition:
“Q. *** Have you brought any kind of—or may I see the documentation upon
which you rely for saying there’s release of asbestos fibers from—
A. You and I just—
A. —asbestos-containing welding rods?
Q. I didn’t bring any such literature with me. I’m sure you have it. You and I have
discussed this many times in the past. There’s the work of Dr. Dement with fibers being
released from welding rods.”
¶ 46 An expert witness, such as Frank, may rely on “facts or data” gathered by experts in other
specialties. Ill. R. Evid. 703 (eff. Jan. 1, 2011). Although an expert witness may not parrot
another expert’s opinion if that opinion represents an exercise of professional discretion or
judgment (see Dura Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 614 (7th
Cir. 2002); Citibank, N.A. v. McGladrey & Pullen, LLP, 2011 IL App (1st) 102427, ¶ 21
(adopting Dura)), expert witnesses commonly rely on facts or data gathered by experts in other
specialties—for example, “an X ray or other laboratory analysis which is typically performed
by a technician or laboratory scientist other than the testifying expert” (Kurrack v. American
District Telegraph Co., 252 Ill. App. 3d 885, 897-98 (1993)).
¶ 47 Of course, the third-party technician on which the expert relies must be trustworthy.
Plaintiff had the burden of laying a foundation for Frank’s expert opinion by showing not only
that Frank himself was qualified but also that his reliance on Dement’s work was
(1) customary in Frank’s field and (2) reasonable. See Connelly v. General Motors Corp., 184
Ill. App. 3d 378, 391 (1989); see also City of Chicago v. Anthony, 136 Ill. 2d 169, 186 (1990);
Lovelace v. Four Lakes Development Co., 170 Ill. App. 3d 378, 384 (1988). Defendant does
not argue that plaintiff failed to lay that foundation. In fact, in its reply brief, defendant does
not respond at all to plaintiff’s argument that Frank relied on Dement’s work. See Department
of Central Management Services/The Department of State Police v. Illinois Labor Relations
Board, State Panel, 2012 IL App (4th) 110356, ¶ 26 (“We note the Department did not file a
reply brief, and thus it did not respond to the Board’s forfeiture argument. Accordingly, we
find the Department has forfeited any argument based on the labor-nexus test.”); Holder v.
Caselton, 275 Ill. App. 3d 950, 959 (1995) (The “plaintiff appears to concede that point in her
reply brief by failing to respond.”). Because defendant, by its silence, appears to concede the
customariness and reasonableness of Frank’s reliance on Dement’s work with welding rods,
we find no abuse of discretion in the admission of Frank’s testimony that defendant’s welding
rods could release respirable asbestos fibers when “properly manipulated.” See Anthony, 136
Ill. 2d at 186.
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¶ 48 B. The Admission of the Compton Studies as Substantive Evidence
¶ 49 Citing Costa v. Dresser Industries, Inc., 268 Ill. App. 3d 1, 11 (1994), defendant argues
that, by using third-party, nontestifying expert reports, namely, the Compton studies, to
impeach Hensley or to prove notice to defendant that welding rods were capable of releasing
asbestos fibers, plaintiff “did not elicit substantive evidence of fiber release in this case.”
¶ 50 Plaintiff agrees. He writes: “Plaintiff did not use the [Compton studies] as substantive
evidence of fiber release.” Plaintiff continues, however: “It was only after [defendant]
published the reports to the jury and went over them in detail with Hensley that [p]laintiff
asked to have the reports admitted. [Citations.] Any error in admitting the Compton studies as
evidence rests squarely on the shoulders of [defendant] ***.”
¶ 51 This reasoning is not quite fair to defendant. After all, defendant objected to the Compton
studies on the ground of hearsay. In opposition to the hearsay objection, plaintiff cited Piano v.
Davison, 157 Ill. App. 3d 649, 672 (1987), in which the appellate court held it was permissible
for an expert to testify about a report the expert had reviewed in reaching his or her opinion,
even if the expert had chosen not to rely on the report. See also Leonardi v. Loyola University
of Chicago, 168 Ill. 2d 83, 105 (1995). The trial court overruled defendant’s hearsay objection,
thereby signifying its agreement with plaintiff that the Compton studies were not offered for
their truth or as substantive evidence. See Edward J. Imwinkelried, Rationalization and
Limitation: The Use of Learned Treatises to Impeach Opposing Expert Witnesses, 36 Vt. L.
Rev. 63, 70-71 (2011) (because the hearsay rule forbids the text to be offered for its truth, the
text must be used for impeachment: to show, for example, that the witness’s disregard or hasty
rejection of the text is indicative of carelessness or bias). But cf. People v. Virgin, 302 Ill. App.
3d 438, 448 (1998) (“Where a witness is impeached by a contradictory statement made out of
court by another person, as opposed to by the witness himself, then the out-of-court statement
is offered for its truth in order to attack the credibility of the witness. Unlike impeachment by
self-contradiction, in this type of impeachment [i]t is not the contradiction but the truth of the
contradicting assertion *** that constitutes the probative end.” (Internal quotation marks
omitted.)). Defendant had the right to proceed on that premise and to attempt to neutralize the
impeachment without transforming the Compton studies into substantive evidence.
¶ 52 The supreme court has explained:
“[A] party waives the right to raise as error action taken by the court at the instance of
that party; it is quite another matter when, after an exclusionary motion is denied, the
party himself raises a matter so as to lessen its impact, when the party knows that[,] if
he does not raise it, the opponent will. The difference is that, in the first instance, the
request and the subsequent assertion of error are inconsistent with one another. In the
second instance[,] the aim is consistent: once the motion to exclude the matter is
denied, the party must try to limit the effect the matter will have on the trier of fact. He
has not waived the issue by raising it; he has merely tried to ensure that it does the least
damage to his witness’[s] credibility.” People v. Spates, 77 Ill. 2d 193, 199-200 (1979).
After the trial court overruled defendant’s hearsay objection, defendant did not waive its
objection by its subsequent good-faith efforts at damage control. See Department of
Transportation v. Quincy Coach House, Inc., 64 Ill. 2d 350, 359 (1976); Morrison v.
Community Unit School District No. 1, Payson, 44 Ill. App. 3d 315, 318-19 (1976); Apa v.
National Bank of Commerce, 374 Ill. App. 3d 1082, 1088 (2007). A party need not stand on an
overruled objection; the party may follow the law as laid down by the trial judge and offer
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similar evidence without forfeiting its objection. Chicago City Ry. Co. v. Uhter, 212 Ill. 174,
182 (1904).
¶ 53 In sum, then, the Compton studies were not substantive evidence that defendant’s welding
rods could have released respirable asbestos fibers. The redirect examination did not forfeit the
hearsay objection and did not make the Compton studies admissible as substantive evidence.
See Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 469 (1992) (upholding the denial of a
motion for judgment notwithstanding the verdict because “the jury verdict is properly and
adequately supported by competent evidence” (emphasis added)); Bartlett Bank & Trust Co. v.
McJunkins, 147 Ill. App. 3d 52, 62 (1986) (“When deciding a motion for judgment n.o.v., the
court may consider only the competent evidence introduced at trial.” (Emphasis added.)).
¶ 54 Frank’s testimony, however, was substantive evidence that defendant’s welding rods could
have released respirable asbestos fibers. He testified: “[T]o the extent that plaintiff worked
with Hobart 6010 asbestos-containing rods or that co-workers were using them, having had
prior experience with them, knowing that they give up asbestos fibers, that the exposures he
had to asbestos from these rods would have[,] in my opinion[,] been a substantial contributing
cause to his mesothelioma.” (Emphasis added.) So, we disagree with defendant that the record
lacked any competent evidence that defendant’s welding rods were capable of releasing
asbestos.
¶ 55 Granted, DuPont testified that any fragments that broke off the welding rods would have
been 100 microns at the smallest and, thus, would have been too small to be inhaled. The jury,
however, could have believed Frank over DuPont. We defer to the jury’s determination of the
credibility of witnesses and to its weighing of the evidence. See Donaldson v. Central Illinois
Public Service Co., 199 Ill. 2d 63, 89 (2002) (in reviewing the ruling on a motion for judgment
notwithstanding the verdict, the reviewing court may not substitute its judgment for the jury’s,
nor may the reviewing court reweigh the evidence or determine the credibility of the
witnesses).
¶ 56 C. No Duty to Warn of What Is Contemporaneously Unknown to the Industry
¶ 57 The amended complaint had two counts against defendant. Count V alleged that defendant
“was willful and wanton” in failing to warn plaintiff of the dangers of asbestos, and count VI
alleged that defendant was negligent in failing to do so.
¶ 58 Defendant argues:
“But the record was devoid of any evidence that any manufacturer should have
reasonably foreseen that the use of asbestos-containing welding rods in particular
might pose a risk of exposing coworkers in the same building to respirable asbestos
fibers. At most, the evidence at trial showed that [defendant] did not become aware of
the potential risk of asbestos until the early 1970s, nearly a decade after plaintiff’s
purported exposure, and that evidence pertained to the potential risk posed to
individuals working directly with raw asbestos, not bystanders to the finished
welding[-]rod product like plaintiff.” (Emphases in original.)
Defendant notes that, in Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 35 (1980), the supreme
court imposed a knowledge requirement in failure-to-warn cases: the plaintiff had to “prove
that the defendant manufacturer knew or should have known of the danger that caused the
injury.” It is true that, in Woodill, the plaintiffs brought an action for strict products liability (id.
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at 28), whereas, in the present case, plaintiff alleges that defendant was negligent (or willful
and wanton). However, that makes no difference—the two legal theories of liability have the
same knowledge requirement. “[L]iability based upon a failure to warn adequately of dangers
(Restatement (Second) of Torts [§] 402A, comment j (1965)) is itself a doctrine borrowed from
negligence.” Id. at 33. It follows that, regardless of whether the failure-to-warn case sounds in
strict liability or negligence, the inquiry is the same:
“The inquiry becomes whether the manufacturer, because of the ‘present state of
human knowledge’ (Restatement (Second) of Torts [§] 402A, [cmt.] k (1965)), knew or
should have known of the danger presented by the use or consumption of a product.
Once it is established that knowledge existed in the industry of the dangerous
propensity of the manufacturer’s product, then the plaintiff must establish that the
defendant did not warn, in an adequate manner, of the danger.” Id. at 35.
¶ 59 Thus, even if (as the jury impliedly found) it was an objective fact that defendant’s welding
rods could release respirable asbestos fibers by being stepped on or by being jostled against
one another in a box or a stub bucket, defendant had a duty to warn plaintiff in 1962 and 1963
only if, during those years, defendant knew or should have known that its welding rods could
release respirable asbestos fibers by being so manipulated and that someone could become ill
as a result. “A duty to warn of a particular hazard will be imposed only where there is unequal
knowledge, either actual or constructive, and the defendant knows or should know that injury
may occur if no warning is given.” (Emphasis added.) Carrizales v. Rheem Manufacturing Co.,
226 Ill. App. 3d 20, 25 (1991) (negligence action). What defendant should have known comes
down to what was known in the industry of which defendant was a part. See Woodill, 79 Ill. 2d
at 35.
¶ 60 Because the industry got whatever knowledge it had from literature and because the
existence and contents of the literature are undisputed, our standard of review on the question
of duty is de novo. See Thompson v. Gordon, 241 Ill. 2d 428, 438-39 (2011) (“Whether a duty
is owed presents a question of law for the court to decide, while breach of duty and proximate
cause present questions of fact for the jury to decide.”); Kokoyachuk v. Aeroquip Corp., 172 Ill.
App. 3d 432, 439 (1988) (“The determination of whether a duty to warn exists is normally a
question of law; however, when the record is in dispute, it becomes a question of fact.”).
Therefore, we will decide de novo whether defendant had a duty, in 1962 and 1963, to warn
plaintiff of its product. Again, the existence of such a duty depends on whether, in 1962 or
1963, “knowledge existed in the industry of the dangerous propensity of the manufacturer’s
product”—which, in this case, was not raw asbestos but defendant’s welding rods, in which
asbestos was encapsulated. (Emphasis added.) See Woodill, 79 Ill. 2d at 35.
¶ 61 Plaintiff tends to blur this distinction. He argues:
“Defendant’s claim in its brief that ‘[a]t most, the evidence at trial showed that
[defendant] did not become aware of the potential risk of asbestos until the early 1970s
is fiction. [Citation.] In fact, [d]efendant tacitly admitted it knew of the hazards of
asbestos as early as 1947, if not earlier. [Citations.] Dr. Frank—the only
state[-]of[-]the[-]art witness to testify—testified the medical and scientific literature
definitively established asbestos as the cause of mesothelioma by 1960. [Citation.]”
(Emphases added.)
Other than distinguishing a case that defendant cites, In re Estate of Holmes, 2011 IL App (4th)
100462, on the ground that it pertained to take-home exposure rather than workplace exposure,
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that is the only argument plaintiff makes for imposing a duty to warn on defendant. We will
examine, one by one, the citations to the record in the above-quoted passage from plaintiff’s
brief. There are six such citations, each of which is to testimony.
¶ 62 First, according to Hensley’s testimony, defendant believed it had bought the chrysotile
asbestos it had used in its welding rods from Johns Manville Corporation or Carey Canadian
Mines. Employees in defendant’s research department would “make sure that they had the
proper raw materials in order to make whatever kind of flux they needed for the rods that were
being made.” To that end, they “would research the various raw materials.” Plaintiff’s attorney
asked Hensley:
“Q. And they’d sort of keep up on various information related to all of the various
raw materials, whether it be asbestos or anything else, so that they’re aware of what
was being discussed in science and medicine in both those different ingredients, right?
A. That’s true.”
¶ 63 Second, Hensley testified that, “over the years,” defendant had done “abatement” in its
own buildings, to remove or contain asbestos—“because the way [defendant] treats asbestos
nowadays is they treat it as a hazard.” From 1939 to 1981, defendant had engineers who
“would keep up on the literature as it related to the raw materials, including asbestos.”
¶ 64 Third, Hensley testified that asbestos was one the raw materials defendant used in
manufacturing “a few of the rods.” Plaintiff’s attorney asked him:
“Q. Okay. And as you told us today, the engineers would keep up on the literature
as it related to those raw materials, including asbestos[,] right?
A. Yes, and we tried to.
Q. So[,] if there were articles in the literature that discussed asbestos being harmful,
that’s something the engineers would have noticed[,] right?
A. They may have.
Q. Okay. If there were articles in the literature that discussed health effects from
breathing asbestos or from asbestos coming out of products, those are the kind of things
they would have looked at[,] right?
A. They may have.”
¶ 65 Fourth, Hensley testified he was unsure if the engineers “found every piece of literature out
there.” Plaintiff’s attorney asked him:
“Q. But one of the things you know was that they were trying, when they searched
the literature, to find out what was out there about the hazards of the raw materials, the
hazards to the welders, the people that used the ultimate product; correct?
A. Yes.”
¶ 66 Fifth, Hensley testified that, “at least by 1971,” defendant knew that asbestos was
dangerous to breathe. He could not rule out that defendant knew of the dangerousness of
asbestos as early as 1947.
¶ 67 Sixth, Frank testified that, in 1942, a medical doctor, W.C. Hueper, warned of the toxicity
of asbestos, in his book Occupational Tumors and Allied Diseases.
¶ 68 Photocopied pages from Hueper’s book are in the record as plaintiff’s exhibit No. 967.
After describing the types of asbestos and where it was mined, Hueper noted in his book that
“[t]he production of asbestos ha[d] risen enormously in recent years,” mostly because of its use
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in the automobile industry but also because it was used in a variety of other products, including
fire-resistant clothes, blankets, curtains, thread, and rope; filter cloths; millboard; wallboard;
shingles; tile; mortar; insulation for steam pipes, water pipes, and boilers; brake linings; paper;
and mattresses.
¶ 69 Hueper was concerned about the well-being of the thousands of factory workers who made
those products. He wrote:
“The chief hazard consists in the inhalation of asbestos dust, which is produced
abundantly during the preparation of the mineral for the spinning process (purification
and removal of stony impurities) and during other phases of the production and
manufacturing process of asbestos and asbestos containing goods. Direct contact of the
skin with asbestos is of minor importance.”
Direct contact with the skin could cause “painful warts formed around the asbestos needles,”
but a far more serious threat was pulmonary lesions, i.e., asbestosis, “resulting from a
prolonged occupational inhalation of asbestos dust and fibrils.” Worse still, there were
troubling signs that the pulmonary lesions could turn into cancer.
¶ 70 Because “[a]sbestosis carcinoma of the lung [was] not included in any group of
occupational tumors recognized by any country,” and because “several of the states with many
large asbestos plants [did] not include asbestosis among compensatory occupational hazards,”
and because “the evidence presented [was] sufficiently serious,” Hueper called for an
“extensive clinical, statistical, and experimental investigation of the incidence and causative
interrelation of asbestosis and pulmonary carcinoma.” In the meantime, he recommended that
“measures *** be taken to eliminate or reduce the existing hazard caused by the inhalation of
asbestos dust,” such as setting up a “closed production system, whenever possible”; misting
the air to suppress the asbestos dust; establishing “an extensive and efficient exhaust
ventilation”; “the wearing of respirators by workers engaged in dusty operations”; and
“mechanization of operations *** to reduce the number of workers exposed.” He reiterated
that “[t]he dust hazard [was] most pronounced in store rooms for raw material[;] in rooms in
which the raw materials [were] handled[;] and in spinning, weaving, mixing, and filling
rooms.”
¶ 71 Plaintiff’s attorney asked Frank if, “[a]fter Hueper’s text, *** there were more articles or
texts that came out about asbestos and disease.” Frank answered:
“A. Hundreds, if not thousands of them, came out after that. ***
There was an epidemiological study from Dr. Doll in 1955 relating to lung cancer
and asbestos, and in 1960 Dr. Wagner in South Africa showed that not only miners
could get mesotheliomas but their family members could get it and people living in the
villages near the mines where the asbestos was mined could get mesotheliomas. And so
the other cancers have been looked at over the years.
***
Q. Of the diseases we’ve been talking about so far today, are you saying by 1960,
asbestosis, lung cancer, and mesothelioma were all recognized to be caused by asbestos
in some cases?
A. Absolutely.
Q. Mesothelioma was 1960, and—and the South African article, was that the first
one ever reported in the literature about—you said it was a rare tumor?
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A. No. There was actually a paper by one of my teachers from Mount Sinai, Dr.
Rabin. In 1931 he reported on a mesothelioma. *** But he in no way related it to
asbestos.
The first relationship to asbestos was a report of a mesothelioma in Germany in
1938. There was a plumber that was reported as having developed a mesothelioma
from working with asbestos-containing plumbing materials in 1944 here in the United
States.”
¶ 72 The foregoing cited testimony by Hensley and Frank (along with Hueper’s book,
referenced in Frank’s testimony) is indeed evidence that, in 1962 and 1963, “knowledge
existed in the industry of the dangerous propensity of” raw asbestos. See Woodill, 79 Ill. 2d at
35. Their testimony, however, is not evidence that, in 1962 or 1963, “knowledge existed in the
industry” (id.) that defendant’s product—the Hobart 6010 welding rod—was harmful. That is
a crucial distinction. It must be “established that knowledge existed in the industry of the
dangerous propensity of the manufacturer’s product.” (Emphasis added.) Id. The
manufacturer was defendant, and defendant’s product was not asbestos but welding rods, in
which asbestos was encapsulated. The record appears to contain no evidence of
contemporaneous knowledge in the industry that welding rods with asbestos encapsulated in
the flux were hazardous. See Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1145 (5th
Cir. 1985) (“The manufacturer is not liable for failure to warn of dangers unforeseeable at the
time it manufactured the product. [The plaintiff] introduced no proof that [the defendant
manufacturer] knew or should have known that its asbestos-containing products could cause
harm. Construed most favorably to [the plaintiff], his evidence demonstrated only that [the
defendant] knew that the inhalation of asbestos fibers in certain concentrations might create a
health hazard.”). Plaintiff’s own expert witness, Frank, testified (or, more precisely, agreed):
“The asbestos content of a product is not necessarily an indication of its relative health risk.
For many products, the fibers are tightly bound to the matrix or encapsulated.”
¶ 73 Nor, in 1942, did Hueper opine that asbestos-containing products were dangerous per se to
consumers. If he thought that such products were dangerous per se in their finished state, he
surely would not have recommended that ameliorative measures be taken for workers in
factories so that the manufacture of asbestos-containing products could, with more safety,
continue. Plaintiff cites no evidence justifying the conclusion that defendant knew, or should
have known, in 1962 or 1963, that merely stepping on its welding rods, dropping them,
inserting them into a Stinger, or jostling them around in a box or bucket would release asbestos
fibers from their encapsulation in the flux.
¶ 74 In sum, the existence of a duty is an essential element of plaintiff’s cause of action, and, in
1962 and 1963, defendant could not have owed plaintiff a duty to warn plaintiff of a hazard
that, at that time, was unknown to the industry to which defendant belonged, namely, the
ability of its welding rods to release encapsulated asbestos fibers if the welding rods were
simply rubbed together or stepped on. See Holmes, 2011 IL App (4th) 100462, ¶ 24. The
record appears to contain no evidence of such contemporaneous knowledge in the industry. If
the record contained conflicting evidence on contemporaneous knowledge, cases suggest that a
duty to warn would be a question of fact (see Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031,
1035 (1994); Kokoyachuk, 172 Ill. App. 3d at 439), but the record contains no evidence at all of
contemporaneous knowledge. The resulting lack of duty entitled defendant to a judgment
notwithstanding the verdict. See Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948,
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¶ 22 (“Where a plaintiff has obtained recovery against a defendant based on negligence, and if
the defendant did not owe the plaintiff a duty, then a judgment n.o.v. in favor of the defendant
is required.”).
¶ 75 D. The Lack of Any Evidence of Substantial Causation
¶ 76 Assuming, merely for the sake of argument, that industry knowledge, in the early 1960s,
that raw asbestos was dangerous to breathe justifies imposing on defendant a
contemporaneous duty to warn of the asbestos encapsulated in its welding rods, the record
appears to contain no evidence that the welding rods were “a material element and a substantial
factor in bringing *** about” plaintiff’s mesothelioma. See Thacker v. UNR Industries, Inc.,
151 Ill. 2d 343, 354-55 (1992).
¶ 77 In Thacker, 151 Ill. 2d at 364, the supreme court “agree[d] with the appellate court that[,] in
order for the plaintiff to prevail on the causation issue[,] there must be some evidence that the
defendant’s asbestos was put to ‘frequent’ use in the Bloomington facility in ‘proximity’ to
where the decedent ‘regularly’ worked.” It is important to keep in mind that, in that passage in
Thacker, the supreme court was discussing “the defendant’s asbestos” (emphasis added)
(id.)—that is, bags of “raw asbestos” (id. at 350)—not a finished product, such as defendant’s
welding rods, in which asbestos was encapsulated. Proving merely that plaintiff came into
frequent, close, and regular contact with welding rods manufactured by defendant would not,
on the logic of Thacker, prove substantial causation any more than proving he routinely walked
on floor tiles containing asbestos would prove substantial causation.
¶ 78 The supreme court stated in Thacker: “[T]he plaintiff here cannot meet her burden of
production unless and until she is able to point to sufficient evidence tending to show that
Manville asbestos was actually inhaled by the decedent.” Id. at 364. Likewise, plaintiff must
prove he actually inhaled respirable asbestos fibers from defendant’s welding rods—and that
he inhaled enough of the fibers that one could meaningfully say the welding rods were a
“substantial factor” in causing his mesothelioma. (Emphasis added.) See id. at 354-55. The
causal criteria of frequency, proximity, and regularity are calculated to insure that the
defendant’s contribution to the plaintiff’s loss was more than trivial. Nolan v. Weil-McLain,
233 Ill. 2d 416, 432 (2009).
¶ 79 Plaintiff argues he met the criteria of frequency, proximity, and regularity in Thacker. He
claims the following facts are undisputed:
“[Plaintiff] worked for eight months at Portable Elevator. [Citation.] Stick welders
there used [defendant’s] asbestos-containing 6010 rods. [Citation.] [Plaintiff’s]
workstation was below a grated mezzanine where the welders worked. [Citation.] He
frequently walked past and sat next to the welders while they worked. [Citation.] The
welders did not keep a clean work area. [Defendant’s] asbestos welding rods littered
the ground[,] where [plaintiff] and others stepped on them. [Citation.] They fell
through the grates of the mezzanine into [plaintiff’s] work area. Portable Elevator did
not have any dust control measures. [Citation.] Nothing stopped the asbestos dust
generated on the mezzanine from drifting into and circulating throughout [plaintiff’s]
work area. [Citation.] [Plaintiff] was exposed continuously to asbestos dust from
[defendant’s] welding rods for almost eight months.”
¶ 80 The cited pages of the record do not always substantiate the factual representations plaintiff
makes in that quoted passage. Plaintiff represents that his “workstation was below a grated
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mezzanine where the welders worked.” It is true that, according to plaintiff’s testimony, the
welders worked on the third floor and plaintiff worked on the second floor. Plaintiff’s attorney
asked him, however:
“Q. When you were down on two and you were working and there was a—were
you working underneath where there was a grated floor?
A. I wasn’t directly under it. It was off to the side for—where we had our stand.
Could just look right up and see it.”
¶ 81 Plaintiff also represents that the welding rods “fell through the grates of the mezzanine into
[plaintiff’s] work area.” There is no citation to the record for that sentence. We see, in the
transcript, where plaintiff testified that the “stubs from the arc welders on the third floor” fell
through the grates of the mezzanine and onto the second floor. We do not see, however, where
he testified that the stubs fell into his work area. It is difficult to picture how they could have
done that, since, according to his testimony, his work area was “off to the side.”
¶ 82 Plaintiff also represents: “Nothing stopped the asbestos dust generated on the mezzanine
from drifting into and circulating throughout [plaintiff’s] work area. [Citations.] [Plaintiff] was
exposed continuously to asbestos dust from [defendant’s] welding rods for almost eight
months.” At the cited pages of the trial transcript, we see no reference to dust, let alone
asbestos dust. Granted, a few pages later in the transcript, plaintiff’s attorney asks plaintiff:
“Q. Okay. Was there anything that permitted whatever was in the air up above
where the welders were working or where those stubs were laying—you mentioned
some of the stubs got down. Anything that prevented that air from coming—or if there
was something in the air that was going to be settling out from coming down to the
second floor?
A. No.
Q. Was it that way throughout the time you were there?
A. Yes.
Q. Was Portable Elevator a clean place or a dirty place, Chuck?
A. I would classify it as a dirty place.”
Plaintiff never testified, however, that the dirt was asbestos dust, and we are aware of no
evidence that it was. He never testified to seeing clouds of dust in the workplace. Cf. Thacker,
151 Ill. 2d at 351 (“Various *** employees, including the decedent, testified that dust [from
the sacks of raw asbestos] was continuously visible in the air of the plant when viewed in
bright light.”). It is true that, when ruling on a motion for judgment notwithstanding the
verdict, a court should look at the evidence in the light most favorable to the opposing party,
but that does not mean the court may fill the gaps in the opposing party’s case with speculation.
Presbrey v. Gillette Co., 105 Ill. App. 3d 1082, 1094 (1982) (“[C]onjecture, guesswork, or
suspicion is insufficient.”).
¶ 83 Once it is granted that defendant’s welding rods, when rubbed together or stepped on,
released respirable asbestos fibers, it would be a reasonable inference, rather than speculation,
that plaintiff breathed some of the fibers, given that the fibers are microscopic and threadlike
and, one might expect, would be wafted along on every draft of air (and here we are looking at
the evidence in the light most favorable to plaintiff, as we must do (see McClure v. Owens
Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999))). But plaintiff had to prove he inhaled
enough asbestos fibers from the welding rods that the welding rods were “a material element
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and a substantial factor in bringing *** about” his mesothelioma. Thacker, 151 Ill. 2d at
354-55. “Conduct is a material element and a substantial factor if, absent the conduct, the
injury would not have occurred.” Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226
(2010). Plaintiff never presented any evidence that, but for the asbestos he breathed during his
eight-month employment at Portable Elevator, he would not have contracted mesothelioma
from the 40 years he spent as a car mechanic working on asbestos-containing brake lines. He
never presented any evidence that the asbestos he breathed at Portable Elevator was more than
minimal. Defendant’s attorney asked Frank:
“Q. [C]an you give me any kind of quantification levels, numbers of fibers, or
anything about [plaintiff] and any alleged exposure to welding rods?
A. No.”
For all that appears in the record, the amount of asbestos fibers released from defendant’s
welding rods by rubbing them together or stepping on them was no more than the amount one
would have encountered in a natural environment. Without any idea of the concentration of
airborne asbestos fibers the welding rods would have produced, it would be conjectural to say
the welding rods were a substantial factor in causing plaintiff’s mesothelioma. Therefore, we
also hold that the lack of any evidence of substantial causation likewise entitled defendant to a
judgment notwithstanding the verdict.
¶ 84 III. CONCLUSION
¶ 85 For the foregoing reasons, we reverse the trial court’s judgment.
¶ 86 Reversed.
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