Deborah Johnson v. Edward Orton, Jr. Ceramic Foundation ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1822
DEBORAH JOHNSON, Individually as the Representative of the
Estate of Bruce Johnson,
Plaintiff-Appellant,
v.
EDWARD ORTON, JR. CERAMIC FOUNDATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cv-06937 — Mary M. Rowland, Judge.
____________________
ARGUED DECEMBER 8, 2022 — DECIDED JUNE 20, 2023
____________________
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Deborah Johnson initially brought
this product liability action in state court against Edward Or-
ton, Jr. Ceramic Foundation (“Orton”). She alleged that her
late husband, Bruce Johnson, contracted mesothelioma as a
result of exposure to asbestos contained in vermiculite pack-
aging material used by Orton. Orton removed the action to
federal court, and, in due course, the district court granted
2 No. 22-1822
summary judgment for Orton. It held that, under applicable
Illinois state law, Orton did not owe a duty to Mr. Johnson.
For the reasons set forth in the following opinion, we re-
verse the judgment of the district court and remand this case
for further proceedings consistent with this opinion.
I
BACKGROUND
A.
Orton manufactures and sells pyrometric cones, which are
used to measure the temperature of a kiln during the firing of
ceramic products. Orton ships the cones to its customers in
cardboard boxes filled with packaging material intended to
keep the cones from breaking. From 1963 to 1975 and from
1979 to 1981, Orton purchased the mineral vermiculite from
W.R. Grace & Co. (“W.R. Grace”) to use as its packaging ma-
terial. From 1975 to 1979 and from 1982 to 1983, Orton pur-
chased vermiculite packaging from a different company, J.P.
Austin. In 1983, Orton transitioned to using micro-foam as its
packaging material because the vermiculite caused too much
dust in Orton’s facility.
The record traces the route that the vermiculite traveled
from its initial mining to its arrival on Mr. Johnson’s workta-
ble. W.R. Grace operated a vermiculite mine near Libby, Mon-
tana. It acquired this mine from the Zonolite Company, which
had begun mining vermiculite in Libby in 1925. The mine site
also contained deposits of asbestos. The vermiculite made its
way to W.R. Grace’s facility in Wilder, Kentucky. Orton, in
turn, received its shipments of vermiculite from that facility.
No. 22-1822 3
In September 1981, Orton requested and received a Mate-
rial Safety Data Sheet (“Data Sheet”) from W.R. Grace. The
Data Sheet stated that the vermiculite originated from Libby,
Montana, and contained less than 0.1% by weight of asbestos.
There is no evidence that the J.P. Austin vermiculite contained
any asbestos.
Bruce Johnson was a ceramics artist and teacher. From
1971 to 1984, Mr. Johnson studied and then worked with ce-
ramics, and, as part of that work, he used pyrometric cones
1
manufactured by Orton. In his deposition, Mr. Johnson testi-
fied that the boxes in which he received the cones were filled
almost to the brim with vermiculite, that the cones and ver-
miculite were “intermixed together,” and that he had to dig
2
through the vermiculite to find the cones. Sometimes, if the
box was almost empty, he would pour out the contents and
then pull out the cone. Mr. Johnson described the vermiculite
as “very fragile” and stated that “it would always create some
dust,” which would be “in [his] face when [he] would work
3
on it at the table.”
According to the complaint, Mr. Johnson was diagnosed
with malignant mesothelioma, which is almost always caused
by exposure to asbestos, on March 3, 2017. He died of the dis-
ease on January 6, 2020.
1 Although Ms. Johnson notes that Mr. Johnson began studying ceramics
in 1968, the parties submitted below, and the record supports, that
Mr. Johnson used Orton pyrometric cones in his ceramics work from 1971
to 1984.
2 R.126-4 at 225:21, 227:11–14, 228:21–23.
3 Id. at 228:1–9.
4 No. 22-1822
B.
In November 2018, the Johnsons filed a complaint in the
Circuit Court of Cook County, Illinois, against eleven defend-
ants, alleging that Mr. Johnson contracted mesothelioma as a
result of exposure to asbestos in the defendants’ products.
The complaint alleged three theories of liability: negligence,
willful and wanton misconduct, and loss of consortium. After
settlement with, and dismissal of, several parties, including
the last non-diverse defendant, Orton removed the case to the
United States District Court for the Northern District of Illi-
nois. Two defendants then remained: Orton and Vanderbilt
Minerals, LLC (“Vanderbilt”).
After Mr. Johnson’s death in January 2020, Ms. Johnson
filed her first amended complaint, alleging negligence, in-
cluding through failure to warn, by the defendants who
“manufactured, distributed, or sold asbestos-containing
4
products that were to be used in the production of ceramics.”
She sought “negligence, wrongful death, and survival dam-
5
ages.”
Following discovery, Orton and Vanderbilt moved to ex-
clude, under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), portions of Ms. Johnson’s expert testimony.
Before the district court ruled on these Daubert motions, Orton
filed a motion for summary judgment. Orton argued that it
was entitled to summary judgment because it did not owe any
legal duty to Mr. Johnson and because Ms. Johnson could not
prove that Mr. Johnson’s exposure to asbestos through the
4 R.58 ¶ 9.
5 Id. ¶ 19.
No. 22-1822 5
vermiculite packaging was a substantial factor in causing his
6
disease.
On June 25, 2021, the district court granted Orton’s motion
for summary judgment and denied Orton’s Daubert motions
as moot. The court concluded that Ms. Johnson had failed to
raise any question of fact to support her contention that Orton
owed a duty to Mr. Johnson. Specifically, the court held that
Ms. Johnson did not establish that Orton knew, or should
have known, that W.R. Grace was supplying vermiculite from
Libby or that Libby vermiculite was contaminated with asbes-
tos. The court also rejected Ms. Johnson’s argument that Or-
ton should be treated as a manufacturer of the vermiculite
packaging and thus “held to the degree of knowledge and
skill of experts” in ensuring that its product was reasonably
7
safe. Because Orton was not a manufacturer of vermiculite,
the court explained, it should be held to the standard of
knowledge of the ceramics industry, and Ms. Johnson had
“failed to provide meaningful evidence that vermiculite was
commonly used in ceramics” or that participants in the ce-
ramics industry were aware that Libby’s vermiculite was con-
8
taminated. The district court did not reach the causation is-
sue.
6 The parties discussed Ms. Johnson’s willful-and-wanton and loss-of-
consortium claims in their summary judgment briefing. The district court
did not address these claims in its summary judgment order and the par-
ties do not raise them on appeal.
7 R.132 at 8 (quoting Anderson v. Hyster Co., 385 N.E.2d 690, 692 (Ill. 1979)).
8 Id. at 11.
6 No. 22-1822
Ms. Johnson filed a motion for reconsideration. In denying
this motion, the district court first rejected Ms. Johnson’s ar-
gument that it had relied upon inadmissible evidence in find-
ing that Orton had not received the Data Sheet from W.R.
Grace earlier than 1981. The support for the facts in para-
graphs 20 and 22 of Orton’s statement of facts, on which the
court had relied for this finding, was the deposition of an Or-
ton corporate representative, James Gary Childress. Because
Ms. Johnson had not denied the facts in paragraphs 20 and 22,
the court stated that it properly had deemed them admitted.
It also rejected her challenge to its conclusion that Orton was
not a vermiculite manufacturer. The court further declined to
consider Ms. Johnson’s “new argument—made without any
evidentiary support—that Orton made purchases of vermic-
ulite from W.R. Grace after September 1981 and used the ma-
9
terial until at least May 1982 without providing a warning.”
Other arguments raised by Ms. Johnson, the court concluded,
inappropriately rehashed arguments she already had ad-
vanced in opposition to Orton’s motion for summary judg-
ment.
On December 15, 2021, after the district court had granted
some of Vanderbilt’s Daubert motions, Ms. Johnson and Van-
derbilt filed a stipulation to dismiss Vanderbilt. In that stipu-
lation, they agreed that the district court would retain juris-
diction to enforce the settlement. On December 16, 2021, the
district court filed a minute entry stating that it had received
the stipulation and, because it could not dismiss with preju-
dice and retain jurisdiction, it was dismissing without
9 R.147 at 3 n.1.
No. 22-1822 7
prejudice until January 31, 2022. The dismissal would convert
automatically to a dismissal with prejudice on February 1,
2022.
On April 6, 2022, the district court entered judgment.
Ms. Johnson filed a notice of appeal on May 6, 2022.
II
DISCUSSION
Ms. Johnson asks us to review the district court’s grant of
summary judgment for Orton. Before assessing her specific
contentions, however, we must determine whether our appel-
late jurisdiction is secure.
A.
Appellate Jurisdiction
Orton submits that we lack appellate jurisdiction because
Ms. Johnson’s appeal was not timely. Federal Rule of Appel-
late Procedure 4(a)(1)(A) required Ms. Johnson to file her no-
tice of appeal “within 30 days after entry of the judgment or
order appealed from.” Here, Federal Rule of Civil Procedure
58(a) requires the judgment to be set forth in a separate docu-
10
ment. “A judgment or order is entered” for purposes of ap-
peal “when the judgment or order is entered in the civil
docket under Federal Rule of Civil Procedure 79(a)” and
when the earlier of two events occurs: either “the judgment or
order is set forth on a separate document” or “150 days have
run from entry of the judgment or order in the civil docket.”
10 Federal Rule of Civil Procedure 58(a) provides that “[e]very judgment
and amended judgment”—with five exceptions not applicable to this
case—“must be set out in a separate document.”
8 No. 22-1822
Fed. R. App. P. 4(a)(7)(ii). “The separate-document require-
ment serves the important purpose of ‘clarify[ing] when the
time for appeal … begins to run.’” Levy v. W. Coast Life Ins. Co.,
44 F.4th 621, 625 (7th Cir. 2022) (alteration in original) (quot-
ing Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384 (1978)).
Orton contends that Ms. Johnson’s appeal is untimely be-
cause final judgment was entered, starting a thirty-day clock
for appeal, on one of the following dates: (1) December 15,
2021, when Vanderbilt and Ms. Johnson filed a stipulated dis-
missal; (2) December 16, 2021, when the district court filed a
minute entry acknowledging receipt of the stipulation to dis-
miss, dismissing the action without prejudice until January
31, 2022, and stating that the dismissal would convert auto-
matically to one with prejudice on February 1, 2022; or (3) Feb-
ruary 1, 2022, when the dismissal converted to one with prej-
udice. None of these suggestions, however, can constitute a
final judgment. Instead, final judgment was entered on April
6, 2022, when the district court entered Form AO 450, which
is “the form specifically used for entry of a separate final judg-
ment under Rule 58.” Selective Ins. Co. of S.C. v. City of Paris,
769 F.3d 501, 507 (7th Cir. 2014); see also Hope v. United States,
43 F.3d 1140, 1142 (7th Cir. 1994) (describing Form AO 450 as
“the preferred and sound vehicle for complying with Rule
58”). Ms. Johnson filed her notice of appeal thirty days later,
on May 6, 2022. Therefore, her appeal is timely.
B.
The Concept of Duty Under Illinois Law
The basic principles governing our assessment of the mer-
its are well established and need not detain us very long.
Ms. Johnson submits that the district court erred in granting
No. 22-1822 9
summary judgment for Orton. We review a grant of summary
judgment de novo, construing the evidence and drawing all
reasonable inferences in favor of the nonmoving party. See
Richards v. PAR, Inc., 954 F.3d 965, 967 (7th Cir. 2020). Sum-
mary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“A genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the non-
moving party.” Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th
Cir. 2022) (quoting Carmody v. Bd. of Trs. of Univ. of Ill., 893
F.3d 397, 401 (7th Cir. 2018)) (quotation marks omitted). The
applicable substantive law determines which facts are mate-
rial. See Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 467 (7th
Cir. 2020) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986)). Because federal subject matter jurisdiction is
based upon diversity of citizenship, we apply state substan-
tive law. See Weaver, 28 F.4th at 820 (citing Maurer v. Speedway,
LLC, 774 F.3d 1132, 1136 (7th Cir. 2014)). It is undisputed that
the substantive law of Illinois applies in this case.
To state a cause of action for negligence under Illinois law,
a plaintiff “must allege facts that establish the existence of a
duty of care owed by the defendant to the plaintiff, a breach
of that duty, and an injury proximately caused by that
breach.” Marshall v. Burger King Corp., 856 N.E.2d 1048, 1053
(Ill. 2006) (citing Bajwa v. Metro. Life Ins. Co., 804 N.E.2d 519,
526 (Ill. 2004)). As this case comes to us, we must determine
whether Orton owed a duty to Mr. Johnson and whether Or-
ton’s vermiculite packaging was a substantial factor in caus-
ing Mr. Johnson’s illness.
10 No. 22-1822
1.
We turn now to the concept of “duty” in Illinois tort law.
The “touchstone” of the Supreme Court of Illinois’s “duty
analysis is to ask whether a plaintiff and a defendant stood in
such a relationship to one another that the law imposed upon
the defendant an obligation of reasonable conduct for the ben-
efit of the plaintiff.” Simpkins v. CSX Transp., Inc., 965 N.E.2d
1092, 1097 (Ill. 2012) (quoting Marshall, 856 N.E.2d at 1057)
(citing Krywin v. Chi. Transit Auth., 938 N.E.2d 440, 447 (Ill.
2010); Forsythe v. Clark USA, Inc., 864 N.E.2d 227, 232 (Ill.
2007)). The existence of a “relationship” is “a shorthand de-
scription for the sum of four factors: (1) the reasonable fore-
seeability of the injury, (2) the likelihood of the injury, (3) the
magnitude of the burden of guarding against the injury, and
(4) the consequences of placing that burden on the defend-
ant.” Id. (citing Krywin, 938 N.E.2d at 447; Forsythe, 864 N.E.2d
at 232; Marshall, 856 N.E.2d at 1057). The Supreme Court of
Illinois “has long recognized that ‘every person owes a duty
of ordinary care to all others to guard against injuries which
naturally flow as a reasonably probable and foreseeable con-
sequence of an act, and such a duty does not depend upon
contract, privity of interest or the proximity of relationship,
but extends to remote and unknown persons.’” Id. (quoting
Widlowski v. Durkee Foods, Div. of SCM Corp., 562 N.E.2d 967,
968 (Ill. 1990)) (citing Forsythe, 864 N.E.2d at 238; Kahn v. James
Burton Co., 126 N.E.2d 836, 840 (Ill. 1955)).
“A manufacturer has a nondelegable duty to design a rea-
sonably safe product.” Jablonski v. Ford Motor Co., 955 N.E.2d
1138, 1154 (Ill. 2011) (citing Calles v. Scripto-Tokai Corp., 864
N.E.2d 249, 264 (Ill. 2007)). In a negligent-design case, the key
question is “whether the manufacturer exercised reasonable
No. 22-1822 11
care in designing the product,” which comes down to
“whether in the exercise of ordinary care the manufacturer
should have foreseen that the design would be hazardous to
someone.” Id. (quoting Calles, 864 N.E.2d at 264). “To show
that the harm was foreseeable, the plaintiff must show that
‘the manufacturer knew or should have known of the risk
posed by the product design at the time of manufacture’ of
the product.” Id. (quoting Calles, 864 N.E.2d at 264) (citing Sob-
czak v. General Motors Corp., 871 N.E.2d 82, 94 (Ill. App. Ct.
2007)).
Furthermore, “[a] manufacturer has a duty to warn where
the product possesses dangerous propensities and there is un-
equal knowledge with respect to the risk of harm, and the
manufacturer, possessed of such knowledge, knows or
should know that harm may occur absent a warning.” Sollami
v. Eaton, 772 N.E.2d 215, 219 (Ill. 2002) (citing Goldman v. Walco
Tool & Eng’g Co., 614 N.E.2d 42, 49 (Ill. App. Ct. 1993); Smith
v. Am. Motors Sales Corp., 576 N.E.2d 146, 151 (Ill. App. Ct.
1991)). In a failure to warn case against a manufacturer,
whether based in strict liability or negligence,
[t]he inquiry becomes whether the manufac-
turer, 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.
12 No. 22-1822
McKinney v. Hobart Bros. Co., 127 N.E.3d 176, 187 (Ill. App. Ct.
2018) (alteration in original) (quoting Woodill v. Parke Davis &
Co., 402 N.E.2d 194, 198 (Ill. 1980)).
2.
To determine whether Orton owed a duty to Mr. Johnson,
we must decide whether the record will support a conclusion
that Orton knew, or should have known, that W.R. Grace’s
11
vermiculite packaging was contaminated with asbestos. We
will consider separately the time periods before and after Sep-
tember 1981, the date when Orton received the Data Sheet
12
from W.R. Grace.
We turn first to the period before September 1981. Here,
our first inquiry is whether, on this record, a factfinder could
conclude that Orton actually knew about the dangers of its
11 The parties do not ask us to decide whether Orton knew or should have
known about the health risks associated with the exposure to asbestos. Cf.
Cahoon v. Edward Orton, Jr. Ceramic Foundation, No. 2:17-CV-63-D, 2020 WL
918753, at *8 (E.D.N.C. Feb. 24, 2020) (granting summary judgment for Or-
ton because the plaintiff’s evidence did not demonstrate that Orton “knew
that its vermiculite was tied to a specific health risk of mesothelioma,” as
required by North Carolina law).
12 In her appellate brief, Ms. Johnson cites sources, such as U.S. Environ-
mental Protection Agency webpages, that she did not cite in the district
court to support, for example, the proposition that W.R. Grace’s mining
operation at Libby was the largest in the world. We consider only evidence
that was presented properly to the district court, as “[e]vidence that was
not proffered to the district court in accordance with its local rules is not
part of the appellate record.” McClendon v. Ind. Sugars, Inc., 108 F.3d 789,
795 (7th Cir. 1997) (citing Henn v. Nat’l Geographic Soc’y, 819 F.2d 824, 831
(7th Cir. 1987)).
No. 22-1822 13
vermiculite packaging before it received the Data Sheet. The
district court thought that there was a simple and direct an-
swer to this issue: Ms. Johnson had failed to contest the facts
stated in paragraphs 20 and 22 of Orton’s statement of mate-
13
rial facts, and these facts were therefore deemed admitted.
Consequently, Ms. Johnson had admitted that Orton received
the Data Sheet, which is dated June 10, 1977, no earlier than
1981.
13 Northern District of Illinois Local Rule 56.1 requires that each party
moving for summary judgment file a statement of material facts and that
each party opposing a summary judgment motion file a response to that
statement. See N.D. Ill. R. 56.1(a)(2), (b)(2)–(3). “Each response must admit
the asserted fact, dispute the asserted fact, or admit in part and dispute in
part the asserted fact.” N.D. Ill. R. 56.1(e)(2). “To dispute an asserted fact,
a party must cite specific evidentiary material that controverts the fact and
must concisely explain how the cited material controverts the asserted
fact.” N.D. Ill. R. 56.1(e)(3). “When a responding party’s statement fails to
dispute the facts set forth in the moving party’s statement in the manner
dictated by the rule, those facts are deemed admitted for purposes of the
motion.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015)
(quoting Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)).
“The non-moving party’s failure to admit or deny facts as presented in the
moving party’s statement or to cite to any admissible evidence to support
facts presented in response by the non-moving party render the facts pre-
sented by the moving party as undisputed.” Id. at 218–19 (citing Ammons
v. Aramark Unif. Servs., 368 F.3d 809, 818 (7th Cir. 2004)). “We review a trial
court’s decisions regarding compliance with local rules only for an abuse
of discretion.” Id. at 219 (7th Cir. 2015) (citing Cracco, 559 F.3d at 630;
Koszola v. Bd. of Educ., 385 F.3d 1104, 1108 (7th Cir. 2004)). “[R]equiring
strict compliance with Rule 56.1 is not an abuse of the district court’s dis-
cretion.” Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir. 2016) (citing Ammons,
368 F.3d at 817).
14 No. 22-1822
Paragraphs 20 and 22 of Orton’s statement of facts, filed in
support of its motion for summary judgment, stated:
20. In September 1981, Orton requested, and
W.R. Grace sent a Material Safety Data Sheet
(MSDS) to Orton. The MSDS, said that the ver-
miculite may contain trace amounts (less than
.1% by weight) of tremolite asbestos. Childress
Dep. at 166–68 (Ex. E).
…
22. Prior to 1981, as a non-profit charitable trust
foundation, Orton never knew, nor had reason
to suspect, that W.R. Grace’s vermiculite came
from the Libby, Montana mine, or that any ver-
miculite Orton may have used may have been
contaminated with asbestos. In fact, Orton re-
ceived its shipments of vermiculite packaging
14
from Wilder, Kentucky. Id. at 181–93 (Ex. E).
Ms. Johnson did not deny these facts in her response. Her
response to paragraph 20 instead cited evidence concerning
the asbestos-exposure levels that resulted from disturbing Or-
ton’s vermiculite and the risk of mesothelioma caused by such
exposure. Ms. Johnson’s response to paragraph 22 first de-
tailed Orton’s history and then discussed Orton’s use of ver-
miculite as a packaging material. She stated that Orton began
packing its pyrometric cones in “asbestos-containing vermic-
15
ulite” in 1963. She described vermiculite as a “mineral
14 R.122 ¶¶ 20, 22.
15 R.127 ¶ 22.
No. 22-1822 15
composed of shiny flakes” that “is odorless, lightweight, fire-
resistant, and … commonly used in all aspects of the ceramics
16
industry.” She stated that Orton obtained vermiculite from
“W.R. Grace/Zonolite and J.P. Austin,” with W.R. Grace ver-
miculite being purchased “from March 1963 until June 1975
17
and then again from September 1979 until December 1981.”
Finally, she noted that in 1983—“almost 12 years after
OSHA’s first emergency standard regarding asbestos expo-
sure in the workplace”—Orton began using “Micro-foam” in-
stead of vermiculite because “the asbestos-containing vermic-
ulite it was using caused too much dust in its manufacturing
18
facility.” This response did not deny clearly the facts in par-
agraphs 20 and 22. The district court therefore properly
deemed those facts admitted and concluded that Orton re-
ceived the Data Sheet no earlier than 1981. The record is de-
void of other evidence establishing that Orton had actual
knowledge of the contamination of the W.R. Grace vermicu-
19
lite before receiving the Data Sheet in September 1981.
16 Id.17 Id.18 Id.19 We also note that Ms. Johnson forfeited any challenge to the district
court’s finding that she admitted paragraphs 20 and 22 because she did
not raise the issue until her reply brief in this court. See, e.g., Hackett v. City
of South Bend, 956 F.3d 504, 510 (7th Cir. 2020) (citing Webster v. CDI Ind.,
LLC, 917 F.3d 574, 578 (7th Cir. 2019); Klein v. O’Brien, 884 F.3d 754, 757
(7th Cir. 2018); Ulrey v. Reichhart, 941 F.3d 255, 260 (7th Cir. 2019)) (“An
appellant who does not address the rulings and reasoning of the district
court forfeits any arguments he might have that those rulings were
wrong.”).
16 No. 22-1822
We now turn to whether the record supports a conclusion
that, prior to 1981, Orton had constructive knowledge of the
possible presence of asbestos in the vermiculite. Here, the in-
quiry is whether Orton should have known about the dangers
of its vermiculite packaging prior to September 1981. The par-
ties do not argue that we are constrained by Ms. Johnson’s
failure to contest paragraphs 20 and 22 of Orton’s statement
of facts. Their restraint is well-taken. Although paragraph 22
contains the phrase “nor had reason to suspect,” it is well es-
tablished in American tort law that such a phrase has a fixed
meaning and does not address the concept of constructive
knowledge. Specifically, § 12 of the Restatement (Second) of
Torts defines “reason to know” and “should know”:
(1) The words “reason to know” are used
throughout the Restatement of this Subject to
denote the fact that the actor has information
from which a person of reasonable intelligence
or of the superior intelligence of the actor would
infer that the fact in question exists, or that such
person would govern his conduct upon the as-
sumption that such fact exists.
(2) The words “should know” are used through-
out the Restatement of this Subject to denote the
fact that a person of reasonable prudence and
intelligence or of the superior intelligence of the
actor would ascertain the fact in question in the
performance of his duty to another, or would
govern his conduct upon the assumption that
such fact exists.
No. 22-1822 17
Restatement (Second) of Torts § 12 (Am. L. Inst. 1965). Com-
ment a to § 12 further explains the difference between these
two phrases:
Both the expression “reason to know” and
“should know” are used with respect to existent
facts. These two phrases, however, differ in that
“reason to know” implies no duty of knowledge
on the part of the actor whereas “should know”
implies that the actor owes another the duty of
ascertaining the fact in question. “Reason to
know” means that the actor has knowledge of
facts from which a reasonable man of ordinary
intelligence or one of the superior intelligence of
the actor would either infer the existence of the
fact in question or would regard its existence as
so highly probable that his conduct would be
predicated upon the assumption that the fact
did exist. “Should know” indicates that the ac-
tor is under a duty to another to use reasonable
diligence to ascertain the existence or non-exist-
ence of the fact in question and that he would
ascertain the existence thereof in the proper per-
formance of that duty.
Id. § 12 cmt. a. “Reason to suspect,” the precise terminology
employed in paragraph 22, addresses the same concept as
“reason to know.” It conveys no sense that the actor is under
a duty to another to employ “reasonable diligence to ascertain
the existence or non-existence of the fact in question.” Id.
In addressing whether Orton had a duty to apprise itself
of the possibility that asbestos had infected the vermiculite
that it was using as a packaging material for its product, our
18 No. 22-1822
first task is to identify the standard of knowledge that should
be expected of Orton. In Illinois, “[a] manufacturer is held to
the degree of knowledge and skill of experts,” Anderson v.
Hyster Co., 385 N.E.2d 690, 692 (Ill. 1979) (citing Lewis v. Stran
Steel Corp., 311 N.E.2d 128, 132 (Ill. 1974)), and therefore has a
duty “to keep abreast of scientific developments touching
upon the manufacturer’s product,” Proctor v. Davis, 682
N.E.2d 1203, 1211 (Ill. App. Ct. 1997) (quoting Schenebeck v.
Sterling Drug, Inc., 423 F.2d 919, 922 (8th Cir. 1970)).
The district court did not impose this duty on Orton. In its
view, Orton should not be considered a “manufacturer” with
respect to the vermiculite packaging. It saw Orton’s role as
“more analogous to that of a seller of vermiculite who placed
20
reasonable trust in the supplier.” On this point, we find our-
selves in respectful disagreement with our colleague in the
district court. It is undisputed that Orton was the manufac-
turer of the pyrometric cones that it sold to Mr. Johnson. Un-
der Illinois law, because Orton manufactured the pyrometric
cones, “it was under a duty to so prepare” the package of py-
rometric cones so that they “could be transported to the des-
tination where [the cones] were to be used without exposing
21
others to unreasonable danger.” Lewis, 311 N.E.2d at 132.
20 R.132 at 11.
21 Orton questions the relevancy of Lewis to this case because, it submits,
Ms. Johnson brings only a failure-to-warn claim. She has not limited her
case in this way. See R.58 ¶ 12 (alleging, in her amended complaint, that
Orton “failed to exercise ordinary care and caution for the safety of
Mr. Johnson” when it “[i]ncluded asbestos in [its] products,” “[f]ailed to
provide any or adequate warnings” or “instructions,” and “[f]ailed to con-
duct tests on the products manufactured, sold, or delivered”); R.126 at 12
(noting, in her memorandum opposing summary judgment, that a
No. 22-1822 19
The district court’s consideration of the degree of
knowledge required of Orton may well have been impeded
by the paucity of negligence cases. “Illinois cases considering a
cause of action for defective products liability sounding in
negligence rather than strict liability are rare.” Blue v. Env’t
Eng’g, Inc., 828 N.E.2d 1128, 1141 (Ill. 2005) (plurality opin-
ion). But this paucity of negligence cases should not be an im-
pediment. Illinois courts have made clear that whether a fail-
ure to warn claim is brought under a negligence or strict lia-
bility theory, the knowledge requirement is the same. See
McKinney, 127 N.E.3d at 187. In both cases, the animating pol-
icy concern is to ensure that “where the product possesses
dangerous propensities and there is unequal knowledge with
respect to the risk of harm … the manufacturer, possessed of
such knowledge,” must warn of the danger. Sollami, 772
N.E.2d at 219.
Orton attempts to support the district court’s view by sug-
gesting that, even if the vermiculite packaging is considered
part of its “product,” it should be held to the standard of
knowledge of the ceramics industry. Orton reads the Illinois
cases as holding that what a defendant “should have known
comes down to what was known in the industry of which de-
fendant was a part.” McKinney, 127 N.E.3d at 187 (citing
Woodill, 402 N.E.2d at 198). We believe, however, that it is
manufacturer has “a non-delegable duty to design reasonably safe prod-
ucts” and that Orton “had the duty to provide an asbestos free product to
end-users like Mr. Johnson or, in the alternative, provide an adequate
warning about the presence of asbestos in its products” and citing Calles
v. Scripto-Tokai Corp., 832 N.E.2d 409, 416 (Ill. App. Ct. 2005), and Anderson,
385 N.E.2d at 692).
20 No. 22-1822
more precise to say that Illinois considers the industry-
knowledge standard to focus on the state of the art. See Daniels
v. ArvinMeritor, Inc., 146 N.E.3d 655, 677 (Ill. App. Ct. 2019)
(“In McKinney, the plaintiff’s theory of duty was that the de-
fendant should have known of the danger based on what was
known in the industry, i.e. the state of the art. … The Woodill
court reasoned that a manufacturer could not be held liable
for failure to warn of a danger which it would be impossible
to know based on existing knowledge.”). The Supreme Court
of Illinois explained in Woodill that a manufacturer’s liability
for a failure to warn “should be based on there being some
manner in which to know of the danger.” Woodill, 402 N.E.2d
at 200. The relevant inquiry, the court held, is
whether the manufacturer, because of the “pre-
sent state of human knowledge” (Restatement
(Second) of Torts sec. 402A, comment k (1965)),
knew or should have known of the danger pre-
sented 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 198.
Notably, Orton points to no authority where a defendant’s
negligence was excused because the industry to which it be-
longed had less knowledge. Instead, the Illinois case law, in-
cluding Woodill and McKinney, provides that what a manufac-
turer knew or should have known is determined by the “pre-
sent state of human knowledge” at the time. Id. (quoting Re-
statement (Second) of Torts § 402A cmt. k (Am. L. Inst. 1965)).
No. 22-1822 21
Because Orton’s duties as a manufacturer extended to ensur-
ing that its pyrometric cones were transported reasonably
safely, see Lewis, 311 N.E.2d at 132, we must conclude that,
given the policy concerns that animate Illinois law, Orton
should be held to an expert standard of knowledge with re-
spect to the packaging that it used to ship its pyrometric cones
and to which it exposed consumers such as Mr. Johnson.
The record before us would support a trier-of-fact’s con-
clusion that, at the time Orton was using the W.R. Grace pack-
aging material before 1981, it was possible, based on the pre-
sent state of human knowledge, for Orton to know that the
W.R. Grace vermiculite was contaminated with asbestos. Ar-
ticles published prior to 1963 (when Orton began purchasing
W.R. Grace vermiculite) described the vermiculite mining op-
eration of the Zonolite Company, W.R. Grace’s predecessor,
at Libby and noted the presence of amphibole asbestos at the
22
site. One bulletin published by the Montana Bureau of
Mines and Geology in 1959, for example, described the Zo-
nolite Company’s operations in Libby as the “largest vermic-
ulite mine in the United States” and explained that “the bulk
of the concentrate [was] shipped as crude vermiculite to ex-
23
panding plants throughout the country.” The bulletin noted
the presence of both vermiculite and asbestos at the site as
well as the need for a process “to make a clean separation” of
24
the two materials. Furthermore, the date printed on the Data
22 See R.126-1 at 2–3, 11; R.126-2 at 5; R.126-8 at 3–4; R.126-9 at 3; R.126-10
at 3, 6–8.
23 R.126-8 at 3.
24 Id. at 4.
22 No. 22-1822
Sheet, which stated the source and contamination of W.R.
Grace’s vermiculite, suggests that W.R. Grace prepared the
form on June 10, 1977. Air monitoring conducted in 1971 by
the Kentucky State Department of Health in one part of W.R.
Grace’s vermiculite processing facility in Wilder, Kentucky,
also showed levels of airborne asbestos fibers as high as 10.6
25
fibers per cubic centimeter.
In sum, although the record will not support a finding
that, prior to receiving the Data Sheet in 1981, Orton had ac-
tual knowledge of the contamination of W.R. Grace’s vermic-
ulite, it will support a finding that, based on the state of hu-
man knowledge between 1963 and 1981, Orton should have
known of the contamination. There is a genuine issue of tria-
ble fact as to whether Orton had constructive knowledge of
the possible presence of asbestos in the vermiculite that it pur-
chased from W.R. Grace prior to 1981.
We next consider whether the record supports a conclu-
sion that Orton owed Mr. Johnson a duty after receiving the
Data Sheet in September 1981. Here, our first task is to deter-
mine whether, as Orton submits, Ms. Johnson waived or for-
feited this issue in the district court or on appeal. The district
court, in its denial of Ms. Johnson’s motion for reconsidera-
tion, declined to consider Ms. Johnson’s “new argument—
made without any evidentiary support—that Orton made
purchases of vermiculite from W.R. Grace after September
1981 and used the material until at least May 1982 without
26
providing a warning.” The district court explained that
25 See R.126-11 at 7–8.
26 R.147 at 3 n.1.
No. 22-1822 23
Ms. Johnson could not use a motion for reconsideration to in-
troduce new evidence that could have been presented earlier.
Orton now submits that Ms. Johnson waived, or at least
forfeited, the issue in the district court because, according to
Orton, she did not argue in her summary judgment response
that post-September 1981 vermiculite purchases from W.R.
Grace triggered a duty to warn. Furthermore, Orton argues,
she has forfeited the argument on appeal because in her initial
appellate brief she does not acknowledge the district court’s
failure to consider her post-September 1981 duty-to-warn ar-
gument.
After examining the record, we conclude that Ms. Johnson
properly preserved the argument that Orton owed a duty to
Mr. Johnson after receiving the Data Sheet in September 1981.
In opposing Orton’s motion for summary judgment,
Ms. Johnson, citing James Gary Childress’s deposition, con-
tended that Mr. Johnson’s exposures to the asbestos in Or-
ton’s vermiculite packaging “occurred from 1971 through
1974 and from 1980 through 1982” and that “[p]urchases from
W.R. Grace occurred from March 1963 until June 1975 and
27
then again from September 1979 until December 1981.” She
also asserted these points repeatedly in her statement of un-
disputed facts and her response to Orton’s statement of un-
disputed facts. In the cited deposition, Childress, an Orton
corporate representative, testified, based on checks written by
Orton, that the last purchase of vermiculite from W.R. Grace
was in December 1981 and that the next check that was writ-
ten was to J.P. Austin in May 1982.
27 R.126 at 2, 5 (citing R.126-3 at 162:1–164:25).
24 No. 22-1822
On appeal, Ms. Johnson does not mention the district
court’s failure to address her post-September 1981 argument
in its denial of her motion for reconsideration. Nevertheless,
she does argue clearly that Orton had actual knowledge by
September 1981 that W.R. Grace’s vermiculite contained as-
bestos yet “placed additional orders for vermiculite from
Grace in October and December of 1981” and “continued to
28
use this inventory … for an unknown period thereafter.”
Turning then to the merits, we note that Orton admits that,
in September 1981, it gained actual knowledge that the ver-
miculite packaging it purchased from W.R. Grace contained
29
trace amounts of asbestos. The Data Sheet identified the ver-
miculite packaging material as “Expanded Libby, Montana
Vermiculite” and, under the heading “Hazardous Ingredi-
ents,” stated:
Contains less than 0.1% by weight of a naturally
occurring contaminant tremolite. OSHA Regu-
lation 1910.1001 defines tremolite as asbestos.
Some forms of tremolite are platy. Other forms
can be fibrillated by physical handling to release
28 Appellant’s Br. 33–34.
29 See Appellee’s Br. 16 (“Orton did not know until September 1981 that
W.R. Grace vermiculite packaging may have had trace amounts of asbes-
tos.”); R.122 at 5 (“Orton first learned that vermiculite from W.R. Grace
may be contaminated with trace amounts of asbestos in September
1981.”); R.123 at 7 (“In September 1981, in response to Orton’s request,
W.R. Grace sent a Material Safety Data Sheet (MSDS) to Orton, which
identified that the vermiculite may contain trace amounts (less than .1%
by weight) of tremolite asbestos. This was the first time Orton learned that
some of the vermiculite packaging it was using might contain trace
amounts of asbestos.”) (citation omitted).
No. 22-1822 25
airborne “asbestos fibers”. Regulation 1910.1001
places a limit of 2 “asbestos fibers”/cc; 8 hour
time weighted average and a maximum of 10
“asbestos fibers”/cc at any one time for airborne
fiber exposure.
The physical handling given to expanded Ver-
miculite can release both airborne fibers and
nuisance dust. Refer to OSHA Regulation
30
1910.1001 for approved control procedures.
Under the heading “Special Protection Information,” the Data
Sheet, citing OSHA Regulation 1910.1001, provided that
“[c]ontrols such as isolation; enclosure, exhaust ventilation
and dust collection shall be used if necessary to meet exposure
limits” and referenced “Personal Protective Equipment for
dealing with work environments in excess of exposure lim-
31
its.”
In sum, the district court should not have granted sum-
mary judgment on the issue of Orton’s duty in the period after
September 1981. Orton had actual knowledge during that
time period that the W.R. Grace vermiculite was contami-
nated with asbestos and there is a genuine issue of triable fact
as to Orton’s continued use of W.R. Grace vermiculite after
receiving the Data Sheet.
30 R.126-12 at 2.
31 Id. at 3.
26 No. 22-1822
C.
Causation
Orton contends that causation is an alternative ground on
which we can affirm the district court’s grant of summary
judgment for Orton. The district court, because it concluded
that Orton did not owe a duty to Mr. Johnson, did not reach
the question of whether Ms. Johnson can establish causation.
We decline to consider the issue of causation in the first in-
stance.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court and remand for further proceedings consistent
with this opinion. Ms. Johnson may recover the costs of this
appeal.
REVERSED and REMANDED