Appellate judges take sting out of Illinois opinion

Steve Korris Oct. 3, 2011, 10:42am


SPRINGFIELD, Ill. (Legal Newsline) - Illinois Fourth District appellate judges withdrew a stinging opinion that rejected conspiracy evidence in McLean County mesothelioma trials, and they replaced it with a kinder and gentler rejection.

They denied rehearing of the opinion on Sept. 16, but removed sections that bordered on ridicule of witness Barry Castleman and his asbestos conspiracy theory.

They also removed statements overruling two of their own precedents, replacing them with statements that they declined to follow the precedents.

They stood by their conclusion that companies didn't have to publish a report on tumors in mice 60 years ago because the author told them it meant nothing.

"It cannot be unlawful to hide information that is devoid of significance," Justice Thomas Appleton wrote in both opinions.

Castleman has testified at many trials for clients of Bloomington lawyer James Wylder, who seeks to hold current businesses responsible for deeds of dead men.

Verdicts keep growing, reaching a peak of $90 million earlier this year.

In the case the Fourth District decided, jurors awarded $2 million in compensatory damages to Juanita Rodarmel.

They awarded punitive damages of $400,000 against Honeywell International as successor to brake maker Bendix, and $100,000 against Pneumo Abex, successor to American Brake and Block.

Circuit Judge Scott Drazewski reduced compensatory damages to $183,333, after subtracting amounts other defendants had paid to settle Rodarmel's claims.

This July, Appleton and Justices John McCullough and John Turner found Drazewski should have entered judgment for Honeywell and Abex.

Appleton wrote that the mouse study meant nothing because it lacked controls.

"Castleman appears to take the position that if the eight or nine tumorous mice had been disclosed in the January 1951 article in the American Medical Association archives of industrial hygiene and occupational medicine, they would have been widely regarded as legitimate and persuasive evidence of a relationship between asbestos and cancer," Appleton wrote.

He wrote that later in his testimony, Castleman mentioned the necessity of adequate controls.

"Castleman did not explain how, in the absence of the controls he described, the tumorous mice 'would have gone a long way to really sealing the acceptance of asbestos as a cancer causing substance,'" he wrote. "Nor did he explain how the representations of cancer would have been publishable with the apparent contradiction between Gardner's experimental notes and his reputed cancer findings unresolved.

"More to the point, perhaps, it was unclear what qualifications, if any, that Castleman had in the field of pathology and, more specifically, in cancer experimentation with mice.

"He apparently was not a medical doctor or a veterinarian. We are unaware that he had any expertise in pathology.

"It also is unclear what bases, if any, he had for his opinion, especially in light of his later remarks on the importance of controls."

All these comments disappeared when he modified the opinion.

In the new version he wrote, "We readily admit that we are not experts in asbestos litigation and that counsel knows a lot more about this case than we ever will, but for the benefit of the uninitiated, it would seem that some explanation of this discrepancy would be necessary for a basic understanding of the case."

He also retracted a wisecrack he aimed at Drazewski for allowing evidence that asbestos manufacturer Johns-Manville helped Bendix write a position paper.

In the original opinion he wrote, "If this paper is evidence of a conspiracy, so is the New England Journal of Medicine."

In the modified opinion he wrote, "This was not a wrongful thing to do."

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