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Wednesday, November 13, 2019

Illinois appellate court upholds asbestos defense verdict

By Legal News Line | Jan 7, 2015


SPRINGFIELD, Ill. (Legal Newsline) - Fourth District appellate judges in Illinois affirmed a verdict for insulation distributor Sprinkmann Sons on Dec. 16, finding McLean County jurors could have regarded the position of asbestos plaintiff expert as unreasonable.

The appellate court held that Presiding Judge Rebecca Foley correctly denied a motion to direct a verdict for plaintiff Carol Holloway on the strength of testimony provided by Arthur Frank of Drexel University.

Sprinkmann Sons delivered insulation to a Eureka vacuum cleaner factory in Bloomington from 1962 to 1976, when Holloway worked there.

Sprinkmann Sons dissolved in 2003.

Plaintiffs attorney Lisa Corwin of Bloomington sued the remnant business in 2007, claiming fibers from insulation on pipes caused Holloway to develop asbestosis.

Foley brought the case to trial in 2013, and Frank testified first.

He identified himself as head of the environmental and occupational health department at Drexel and had researched the effects of asbestos on respiratory tissue for 45 years.

"To get the disease asbestosis you need to cross this threshold of a certain amount of exposure,” he said.

He said he couldn’t really tell how much exposure that would be.

“Nobody really knows the dose but everybody agrees that it takes relatively a lot of asbestos to give you asbestosis,” he said. 

Corwin asked why some people get sick and some don’t if all are exposed.

“In fact we are all exposed. Asbestos is a naturally occurring material," he said. “If you walk on the streets outside, we are all going to have a little exposure.

“All of us have very low levels and have therefore a very low risk of getting disease but not zero and we don’t really know why.”

Corwin asked if there was a scientific way to pinpoint a day, a product, or an event that caused exposure.

Frank said, “No. What one has to say is that the cumulative exposure, the totality of all the exposures gave somebody disease.”

Former workers at the vacuum cleaner factory workers testified for Holloway. No one testified for Sprinkmann Sons.

Corwin moved for a directed verdict on causation, and Foley denied the motion.

Jurors found in favor of Sprinkmann Sons, and Corwin moved for a new trial.

Foley denied it, and Corwin appealed to the Fourth District.

Corwin wrote that Holloway testified that she worked all over the plant, but Fourth District judges didn’t read her testimony that way.

Justice Thomas Appleton wrote, “She testified that, throughout her 14 years of employment at Eureka, she was in all different parts of the plant for one reason or another, but that is not quite the same as saying she worked all over the plant.” 

He wrote that the plant was a conglomeration of separate buildings, “and it is unclear how asbestos fibers could be blown from one building to another.”

He wrote that exposure to asbestos dust was theoretically possible, “but one can only speculate whether these exposures were frequent or intensive enough to cause or significantly contribute to her asbestosis.”

“Frank seemed to say that trivial, occasional exposures to asbestos dust would not be enough: a threshold of exposure had to be crossed.

“And that could be exactly what the jury found to be unproven: the crossing of the threshold.”

Appleton found no evidence that Holloway was present in the same building as any repair work on insulation.

He wrote that witnesses testified that insulation was wrapped in canvas or some other protective cover.

“He (Frank) never opined that the pipe covering in the Eureka plant actually had caused plaintiff’s asbestosis,” he wrote.

“On the one hand, he testified it took relatively a lot of asbestos to give you asbestosis, and he was unable to say how much ‘relatively a lot’ was.

“On the other hand, he testified that when someone had asbestosis, each and every exposure to any asbestos product had to be regarded as a cause.

“That seems to mean that if someone, by exposure to an undisturbed asbestos product, breathed no greater quantity of asbestos fibers than the person would have breathed in a pure state of nature, say, when hiking in the mountains, that product nevertheless must be regarded as one of the causes of the person’s asbestosis.

“The jury could have regarded that position as unreasonable while, at the same time, being confused by the paradox that a threshold of exposure, ‘relatively a lot,’ had to be crossed.”

He wrote that all plaintiff offered in the trial was speculation.

Justices James Knecht and John Turner concurred.

Kathy Molchin of Mapleton, Ill. represented Sprinkmann Sons.

The Fourth District Appellate Court in recent years has wiped out a string of multimillion-dollar asbestos jury verdicts brought on conspiracy claims.

Most recently, the court reversed a $17.8 million verdict in 2012, holding that the plaintiff did not present sufficient evidence to prove that Honeywell International and Pneumo-Abex conspired with other corporations to suppress the health hazards of asbestos exposure.

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