Zickuhr v. Ericsson , 2011 IL App (1st) 103430 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Zickuhr v. Ericsson, Inc., 2011 IL App (1st) 103430Appellate Court AMY ZICKUHR, Individually and as Special Administrator of the Estate
Caption of Richard Campbell, Deceased, and FLORENCE CAMPBELL,
Plaintiffs-Appellees, v. ERICSSON, INC., Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-10-3430
Filed September 30, 2011
Held In an action arising from the death of plaintiff’s decedent from
(Note: This syllabus mesothelioma allegedly caused by his exposure to defendant’s asbestos-
constitutes no part of containing electrical cables, the appellate court affirmed the denial of
the opinion of the court defendant’s motion for judgment n.o.v. or a new trial and held that OSHA
but has been prepared regulations were properly excluded, that the trial court cured any error
by the Reporter of resulting from improper statements made during closing arguments by
Decisions for the plaintiffs’ counsel, and that plaintiffs’ failure to disclose that one of their
convenience of the witnesses would testify that plaintiff’s exposure to the asbestos
reader.)
contributed to his disease did not violate Supreme Court Rule 213.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-L-005433; the
Review Hon. Richard Elrod, Judge, presiding.
Judgment Affirmed.
Counsel on Mark I. Tivin and Jeffrey S. Hood, both of O’Connell, Tivin, Miller &
Appeal Burns, LLC, of Chicago, and H. Lane Young, Ollie M. Harton, and
Hawkins Parnell, all of Thackston & Young LLP, of Atlanta, Georgia, for
appellant.
William Connelly and Nicholas J. Vogelzang, both of Connelly &
Vogelzang LLC, and Konstantine Sparagis and Babak Bakhtiari, both of
Law Offices of Konstantine Sparagis, PC, both of Chicago, for appellees.
Panel PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, the jury awarded Richard Campbell’s estate $1.5 million in
damages as a result of defendant Ericsson, Inc.’s negligence in causing Richard’s
mesothelioma death from exposure to defendant’s asbestos-containing electrical cables.
Ericsson later filed a posttrial motion for judgment notwithstanding the verdict or,
alternatively, for a new trial, which was denied.
¶2 On appeal, defendant contends the trial court erred in denying its posttrial motion
because: (1) the evidence established that the cable the decedent worked with lacked
asbestos; (2) plaintiffs failed to establish that the cable was the cause of the decedent’s
mesothelioma; (3) the trial court’s exclusion of the Occupational Safety and Health
Administration regulations prejudiced defendant; (4) plaintiffs’ improper statements during
closing arguments were prejudicial and deprived defendant of a fair trial; and (5) the trial
court abused its discretion by allowing plaintiffs’ controlled expert Dr. Steven Dikman to
testify that defendant’s cables were a contributing cause of the decedent’s mesothelioma. We
affirm.
¶3 BACKGROUND
¶4 Plaintiffs Richard Campbell (the decedent) and his wife Florence Campbell brought this
negligence action against defendant on a claim that the decedent developed mesothelioma
from exposure to asbestos-containing electrical cable manufactured by defendant. The
decedent was diagnosed with mesothelioma in March 2008 and subsequently died from the
illness on February 1, 2009. Plaintiffs’ complaint was amended in February 2009 to include
wrongful death and survivor counts.
¶5 From 1955 to 1985, the decedent worked at U.S. Steel’s South Works plant, where he
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drove a boom truck for the electric shop and performed maintenance functions. The position
required the decedent to repair industrial wire, replace burnt cables, pull cable in and out of
pipe conduit and take scrap cable to the salvage yard. Such duties involved the cutting and
stripping of electrical wires and cables. The decedent claimed that his work produced
asbestos dust that he disposed of using a coal shovel at the end of each workday.
¶6 The wire and cable used at South Works plant were originally manufactured and sold by
Anaconda Wire and Cable Company (Anaconda). In 1974, Anaconda acquired Continental
Wire and Cable (Continental) and in approximately 1980, Ericsson acquired Anaconda.
Plaintiffs allege the wire and cable Anaconda sold to South Works contained asbestos.
Plaintiffs further allege that as Anaconda’s successor-in-interest, the defendant was negligent
in failing to adequately warn of the dangers of asbestos exposure when using its products.
¶7 Plaintiffs originally brought action against several additional defendants for selling other
asbestos-containing products to South Works without proper warning of asbestos danger.
The other defendants settled, leaving Ericsson as the only remaining defendant at trial. After
the jury verdict, the trial court entered judgment on the verdict but reduced the award to
$560,000 to give the defendant credit for setoffs due to the prior settlements. Plaintiffs’ case
was consolidated with the case of Scott v. Ericsson, Inc., No. 08 L 13715, and the jury found
in favor of Ericsson and against the Scott estate. The Scott estate did not appeal that decision.
Raymond Scott was a union electrician who developed mesothelioma after working at U.S.
Steel from 1970 until its close.1
¶8 The Trial
¶9 Decedent’s Testimony
¶ 10 Prior to his death, the decedent testified in a videotaped deposition to working with
Anaconda’s electrical wire at U.S. Steel, which contained asbestos. He recalled observing
Anaconda cable in the 1950s and 1960s that designated “Anaconda” printed on its cable
jackets and on the cable. The decedent testified that he knew the Anaconda cable was
insulated with asbestos because the word “asbestos” was printed on its cable reels also. The
decedent did not recall working with any product labeled “Continental.”
¶ 11 The decedent testified that he worked with Anaconda wire and cable containing asbestos
from 1955 to 1984 at U.S. Steel. He was diagnosed with mesothelioma in March 2008. The
decedent testified that he stripped cable every day and would take the scrap cable out to the
salvage yard and use shredders to strip the cable. He testified to stripping miles of cable. He
would first shave off the insulation that covered the wires in the cable to save the copper core
for salvage. His cable stripping work took place in a shanty where the shredding machine
was located. During the shredding process, the shanty became so dusty that he “couldn’t
breathe.” The dust from the cable shredding would cover him from head to toe, and the dust
attached onto his clothes and hair. In addition, the decedent testified that as part of his
maintenance duties he would repair old industrial wire, which involved stripping the wire
1
The record does not reflect the year that U.S. Steel closed.
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and installing lug nuts and cleaning the end of the cable with a knife when the cable burned
up, and again removing the insulation. The decedent testified that cables used for electrical
power in the plant frequently burned up and had to be replaced. These processes also created
dust as well. When decedent pulled the wires and cable through conduit, dust was also
created because debris would accumulate in the conduit and created dust when the cable was
pulled. The decedent remembered seeing reels of Anaconda asbestos wire at U.S. Steel in the
1960s, but could not definitively recall seeing it there in the 1970s, but he did pull out old
cable and wire on a continuous basis up until 1984. He knew the Anaconda wire was
asbestos-insulated because he observed the word “asbestos” on the reels.
¶ 12 Raymond Scott’s Testimony
¶ 13 Raymond Scott testified via videotaped disposition on behalf of plaintiffs that while
working at U.S. Steel beginning in the 1970s, he observed cable spools that read “asbestos
Continental Cable Company.” Scott testified that by stripping these cables, dust was
produced and the workmen who stripped these cables were exposed to this dust on a daily
basis for years. Scott also contracted mesothelioma and died prior to trial.
¶ 14 Erich Kothe’s Testimony
¶ 15 Erich Kothe, an engineer employed by Anaconda from 1951 to 1986, testified in a
videotaped evidence deposition on behalf of plaintiff as a corporate representative of
defendant. Kothe helped develop Anaconda’s wire and cable products. He testified that
Continental manufactured asbestos-containing wire from 1946 to 1984. He testified that
chrysotile was the type of asbestos Continental used.
¶ 16 Kothe noted that although Anaconda acquired Continental in 1974, Anaconda stopped
producing asbestos-containing cable in 1946, except by special order and that was usually
varnish cambric cable, which was produced into the 1950s. Kothe testified that not only was
wire with asbestos a health hazard, it was an unsuitable material in wiring cable and he does
not know why it was even used. He testified the word “asbestos” was never printed on any
Anaconda or Continental cable reels. He further testified that while he was employed at
Anaconda, the company did not have the technology to print the name “Anaconda” directly
on any cable jackets, the cable, or on the reels that contained asbestos.
¶ 17 Kothe testified that in the 1970s he visited the factory in Mexico where Continental
added asbestos to its wire. He observed that Continental was coating wire with asbestos and
did so from 1970 to 1984. Kothe testified that the Continental personnel would wear
respirators around the asbestos because of the asbestos dust in the atmosphere. The Mexican
factory also had a ventilation system to keep the dust from penetrating the rest of the factory
“for the health of the employees.” The personnel that handled the asbestos wore spacesuits,
in which their heads were totally enclosed with air pumped into their suits in order to avoid
any exposure to the asbestos dust.
¶ 18 Kothe testified that the first test defendant conducted concerning asbestos’s dangers
occurred in the 1990s as a result of an asbestos lawsuit against Ericsson. At that time, the
tests were performed on Anaconda wire, but it has never been performed on Continental
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wire. Defendant’s lawyers had the test performed. They found some asbestos fibers were
released into the air when wire from a reel labeled “Anaconda” was stripped. However,
Kothe testified that when Anaconda sold varnish cambric cable that contained asbestos, it
did not believe the product was hazardous because it contained saturated asbestos as opposed
to raw asbestos. Kothe testified that defendant knew its customers would cut and strip its
wires, but he said those actions released such small amounts of asbestos that it would not
cause disease. Kothe conceded that Anaconda’s own corporate literature stated “Anaconda
Continental.” These brochures referenced asbestos-containing wire and were offered and
received in evidence and published to the jury. Kothe confirmed that when wire is pulled
through conduit, the casing can become damaged.
¶ 19 Dr. Steven Dikman’s Testimony
¶ 20 Dr. Steven Dikman, a pathologist, was plaintiffs’ controlled expert practicing pathology
at Mount Sinai Hospital in New York City since 1969. Dr. Dikman testified that Mount Sinai
Hospital conducts a significant amount of clinical and experimental research investigating
asbestos effects. Dr. Dikman testified that exposure to any type of asbestos can cause
mesothelioma.
¶ 21 Dr. Dikman was asked a hypothetical question to establish the causation of decedent’s
mesothelioma. Ericsson objected based on Illinois Supreme Court Rule 213 (eff. Jan. 1,
2007) grounds. The trial court overruled the objection and Dr. Dikman opined that plaintiff’s
occupational exposure to significant asbestos dust would be a contributing factor to
mesothelioma. Dr. Dikman testified that exposure to asbestos “may be present for 50 years
[in the pleura or lung area] after exposure.”
¶ 22 Dr. Arnold Brody’s Testimony
¶ 23 Dr. Arnold Brody is currently a professor of molecular and biomedical sciences at North
Carolina State University with a master’s degree in anatomy and a doctorate degree in cell
biology who previously participated in the university’s toxicology curriculum. Dr. Brody
testified as a controlled expert for plaintiffs. Dr. Brody opined that all types of asbestos can
cause all of the asbestos-related diseases including mesothelioma, that it is the asbestos that
escapes the product and is inhaled that causes the disease. Dr. Brody opined that, based on
his research, chrysotile asbestos alone causes mesothelioma. Dr. Brody testified “we find
chrysotile asbestos in the lungs of people decades after they’ve died.” But, he noted the
asbestos concentration in ambient air is small enough to breathe without risking disease. Dr.
Brody also testified that he possessed no knowledge on the specific mechanics of wire
products.
¶ 24 Regis Lageman’s Testimony
¶ 25 Regis Lageman testified on behalf of plaintiff as an adverse witness and also as
defendant’s corporate representative most knowledgeable on what defendant knew
concerning asbestos’s health risks. Lageman holds a bachelor of science degree in electrical
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engineering from Johns Hopkins University and worked closely with defendant’s cable and
wire as he transitioned through the positions of specifications engineer, product engineer, and
senior process engineer at Continental from 1967 to 1977. Lageman testified that the
defendant is the entity responsible for all prior Anaconda and Continental products. He
verified Continental produced some asbestos-containing wire until 1984. He testified that
asbestos-containing wires were labeled “asbestos; varnish Cambric asbestos-insulated wire”
on the spools. But, Lageman testified that the wires had no warning labels, because the
company believed no dangerous fibers were released when cutting or stripping the wire. He
testified that the defendant waited until the 1990s to test its asbestos-containing wire, because
the defendant had no evidence fibers were being released prior to the 1990s asbestos lawsuit
against Ericsson.
¶ 26 Lageman testified that U.S. Steel was a “big customer” of defendant’s soaking pit wire,
which was partially composed of asbestos. Lageman testified that the majority of asbestos
used was chrysotile asbestos and used for soaking pits in steel mills. Each spool of soaking
pit wire would contain nearly a mile’s length of wire. Lageman acknowledged that the wire
and cable that the decedent described that he stripped would have contained asbestos, but
based on the same description, it was not wire that was sold by defendant. He testified that
the defendant did not presently have records indicating where defendant had sent its
asbestos-containing wire and cable.
¶ 27 OSHA Regulations
¶ 28 The defendant attempted to introduce into evidence the asbestos regulations of the
Occupational Safety and Health Administration (OSHA), claiming OSHA regulations
showed the asbestos-containing wire did not require a warning label because the fiber it
foreseeably released fell within the permissible exposure limit. Plaintiffs objected and the
trial court excluded this evidence, citing that OSHA regulations apply only to employer-
employee relationships, and since the decedent was not defendant’s employee, OSHA
regulations were irrelevant.
¶ 29 Closing Arguments
¶ 30 During closing arguments, plaintiffs asked the jury to award damages within the range
of $7 to $14 million. Plaintiffs then said, “It’s a total win for this corporation if you don’t
come back with a substantial verdict. It’s an absolute win.” Defendant objected. After
sustaining the objection, the trial judge admonished the jury by saying, “What is a win or a
loss I think is irrelevant. What is relevant is if you find that the defendant is liable then the
plaintiffs are entitled to be fairly [compensated] for their losses. Who wins or loses is not the
issue here.”
¶ 31 ANALYSIS
¶ 32 On appeal, defendant contends that the trial court erred in denying its posttrial motions
for judgment notwithstanding the verdict or, alternatively, for a new trial because (1) the
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evidence established that the cable and wire the decedent worked with lacked asbestos; (2)
plaintiff failed to establish that defendant’s cable and wire was the cause of decedent’s
mesothelioma; (3) defendant was prejudiced by the exclusion of OSHA regulations; (4)
defendant was prejudiced and deprived of a fair trial by plaintiff’s improper statements
during closing arguments; and (5) the trial court erred by allowing plaintiff’s controlled
expert, Dr. Steven Dikman, to testify that defendant’s cable and wire was a contributing
cause of the decedent’s mesothelioma when that testimony was not disclosed under Illinois
Supreme Court Rule 213.
¶ 33 Judgment Nothwithstanding the Verdict
¶ 34 The defendant first argues that the trial court’s judgment must be reversed and a
judgment should be entered in favor of defendant notwithstanding the jury verdict, claiming
(1) that there was no evidence that defendant’s cable and wire contained asbestos; and (2)
that there was no evidence that the cable and wire caused mesothelioma and decedent’s
death.
¶ 35 Judgments notwithstanding the verdict are proper only where all the evidence viewed
most favorably to the opponent so overwhelmingly favors the movant that no contrary verdict
could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). It is the province of the
jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses and to
decide what weight should be given to the witnesses’ testimony. Maple, 151 Ill. 2d at 452.
On review of a trial court’s decision to deny a motion for a judgment notwithstanding the
verdict, all of the evidence must be reviewed in a light most favorable to the opponent of the
motion. Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 353-54 (1992). A court does not
weigh the evidence, nor is it concerned with the credibility of the witnesses; rather, it may
only consider the evidence and any inferences therefrom, in the light most favorable to the
party resisting the motion. Mizowek v. De Franco, 64 Ill. 2d 303, 309-10 (1976). A judgment
notwithstanding the verdict is not appropriate if “reasonable minds might differ as to the
inferences or conclusions to be drawn from the facts presented.” Pasquale v. Speed Products
Engineering, 166 Ill. 2d 337, 351 (1995).
¶ 36 In a cause of action for negligence or strict product liability arising from alleged exposure
to asbestos, a plaintiff must prove that the defendant’s asbestos was the cause in fact of the
injury. Thacker, 151 Ill. 2d at 354. To prove causation in fact, the plaintiff must prove
medical causation, i.e., that exposure to asbestos caused the injury, and that it was the
defendant’s asbestos-containing product which caused the injury. Thacker, 151 Ill. 2d at 354.
¶ 37 To meet this burden, a plaintiff must show that the injured party was exposed to the
defendant’s asbestos through proof that “he regularly worked in an area where the
defendant’s asbestos was frequently used” and the injured party worked in sufficient
proximity to this area so as to come into contact with the defendant’s product. Thacker, 151
Ill. 2d at 359. This test is often referred to as the “frequency, regularity and proximity” or
“substantial-factor” test.
¶ 38 This was a highly contested case and the jury verdict was based on who the jury believed
was telling the truth. In the case at bar, the decedent testified that he worked with asbestos-
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containing Anaconda wire from 1955 to 1984 at U.S. Steel. He drove a boom truck for the
electric shop and performed maintenance functions which included repairing industrial wire,
replacing burnt cables, pulling wire cable in and out of pipe conduit and transporting scrap
cable to the salvage yard. The decedent’s duties involved the cutting and stripping of
electrical wires and cables. The decedent testified that the cutting and stripping of the wire
and cable produced asbestos dust that he disposed of using a coal shovel at the end of each
work day.
¶ 39 The wire and cable used at U.S. Steel were originally manufactured and sold by
Anaconda, which stopped producing cable containing asbestos in the 1950s. Anaconda
acquired Continental in 1974 and Continental manufactured cable containing asbestos from
1946 to 1984. Defendant acquired Anaconda in 1980.
¶ 40 Erich Kothe, an engineer employed by Anaconda from 1951 to 1986, testified on behalf
of plaintiff, as defendant’s corporate representative, in a videotape deposition. Kothe helped
develop Anaconda’s wire and cable products. Kothe testified that the first test defendant
conducted concerning asbestos dangers occurred in the 1990s as a result of an asbestos
lawsuit filed against the defendant. Defendant’s lawyers had the test performed. The test
result showed that some asbestos fibers were released into the air when wire from a reel
labeled “Anaconda” was stripped. However, Kothe testified that when Anaconda sold
varnish cambric cable that contained asbestos, it did not believe the product was hazardous
because it contained saturated asbestos as opposed to raw asbestos. Kothe testified that the
defendant knew its customers would cut and strip its wires, but that those actions released
such small amounts of asbestos that it would not cause disease. The defendant never
contemplated that someone would use a shredding machine. Kothe conceded that
Anaconda’s own corporate literature stated “Anaconda Continental.” These brochures
referenced asbestos-containing wire and were offered and received in evidence and published
to the jury.
¶ 41 Regis Lageman, defendant’s other corporate representative, testified on behalf of the
plaintiff as an adverse witness that Continental made asbestos-containing wire in the 1970s
and shipped it to steel mills. He testified that the defendant “comb[ed] the felted asbestos
onto the wire” from 1967 to 1984. The defendant purchased 4 to 5 tons of asbestos annually
starting in 1967, which was gradually reduced to zero by 1984. The type of asbestos used was
80% to 95% long-fiber chrysotile asbestos, which was better for wire creation. Lageman
acknowledged that Continental’s catalogues listed U.S. Steel as a customer and claimed that
“U.S. Steel was a big customer for soaking pit cable,” and that “part of the insulation system
and part of the jacket is asbestos.” Soaking pit cable, which contained some asbestos, was
sold to U.S. Steel until 1984. He testified the company’s asbestos-coated wire would be
labeled “asbestos; varnish cambric asbestos-insulated wire” on the spools.
¶ 42 Further, Lageman testified that the wires contained no warning labels because the
defendant believed that no dangerous fibers were released when the wire was cut or stripped.
He testified that the defendant waited until the 1990s to test its wires that contained asbestos
because it had no evidence that fibers were being released until it was made a defendant in
a lawsuit.
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¶ 43 The defendant, in its brief to this court, indicate that there was no evidence that the wire
and cable shredded by the decedent and Scott contained asbestos and was sold to U.S. Steel
by defendant. It based its argument on the following testimony of Lageman:
“Q. Mr. Lageman, did you read Mr. Campbell and Mr. Scott’s depositions?
A. Yes, I have.
Q. And did you see their description of the cables that they worked with that they
believed contained asbestos that would have been manufactured by Anaconda or
Anaconda Continental?
A. Yes, I did review that in detail.
Q. Did they describe any Anaconda Continental wires or cables that would have
ever had asbestos in their coverings?
A. Based on the descriptions that they gave in the depositions, there was no wire
or cable that we’ve ever manufactured that I could have fit into that specification.
There was a general indication of the wire but nothing specific enough for me to
narrow down as to type.
Q. Did Continental or Anaconda Continental ever sell a cable that just had the
name ‘Anaconda’ on the cable or the reel?
A. You’re talking about the Anaconda Continental entity?
Q. Yes.
A. That just had Anaconda on it, no. The reels were not printed.
Q. So if Mr. Campbell identified an Anaconda-only cable, would that have been
something that was manufactured by Continental or Anaconda Continental?
***
A. He indicated in his deposition that there was the word ‘Anaconda’ and
sometimes the word ‘asbestos’ on a reel. At the Continental wire facility that became
Anaconda which became Anaconda Ericsson, we did not surface print or paint a
name on the reel because the reels were potentially reusable.
Q. And did Anaconda Continental ever sell any cable that just said ‘Anaconda’
on the reel?
A. No. That would have been incorrect. We were part of Anaconda, but we were
the Anaconda Continental Division.
Q. And if Mr. Scott identified using Anaconda Continental cable in the 1960s,
would that have been possible?
A. No. Anaconda Continental didn’t exist as a legal entity until late 1973 or ‘74.
Prior to that, we were actual competitors.
Q. You mentioned this a second ago, but did Anaconda Continental ever print the
word ‘asbestos’ on its reels?
A. No. That wouldn’t make sense. The reels were returnable and–
***
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Q. If Mr. Scott or Mr. Campbell saw the word ‘asbestos’ on a wire and cable reel,
would that have been an Anaconda Continental reel?
A. We never printed the word ‘asbestos’ on any cable.
***
Q. How about on the reels?
A. The word ‘asbestos’ never appeared on the reels.
Q. Was Anaconda Continental able to print on the covering of a wire or cable that
contained asbestos?
A. The short answer is no.
Q. All right, sir. If Mr. Scott or Mr. Campbell saw printing on a cable
manufactured by Anaconda Continental, would the covering of that cable have
contained asbestos?
A. No. At the time we’re talking about manufacturing from ’77 to ’84, the
asbestos cable was essentially braided so it was an uneven covering, and we weren’t
able to print on uneven coverings.
Q. Could you print on the smooth rubber or Neoprene coverings of the cables?
A. Yes. Any jacket that was smooth like rubber, Neoprene, PVC, we could print
on with a print wheel.
Q. Did Anaconda Continental rubber or Neoprene, did it ever contain asbestos?
A. No, the compounds for the jacket did not.”
Yet, Lageman acknowledged that the cable and wire the decedent described contained
asbestos.
¶ 44 Raymond Scott, an electrician whose work duties involved handling wire and cable at
U.S. Steel, beginning in the 1970s, essentially corroborated the decedent’s testimony. Scott
observed cable spools that read, “Asbestos Continental Cable Company.” Scott testified that
by stripping these cables dust was produced and that the workers who stripped these cables
were exposed to this dust on a daily basis for years.
¶ 45 In viewing the evidence, defendant’s argument that there was no evidence that any of the
defendant’s products used at U.S. Steel contained asbestos is without merit. Kothe, a
corporate representative of defendant and the engineer primarily employed by Anaconda, a
company the defendant purchased, verified the presence of asbestos on wire and cable,
produced by Anaconda and later Continental, used at U.S. Steel. Regis Lageman, defendant’s
corporate representative, testified that Continental, a company acquired by defendant,
manufactured wire and cable with asbestos. Defendant purchased 4 to 5 tons of asbestos
annually starting in 1967, which was gradually reduced to zero by 1984 and defendant
“comb[ed] the felted asbestos onto the wire” from 1967 to 1984. Lageman opined that from
the testimony of the decedent and Scott, “there was no wire or cable that we’ve ever
manufactured that I could have fit into that specification.”
¶ 46 As a result, there was evidence that defendant’s cable and wire contained asbestos during
1970 to 1984. The decedent and/or Scott described either Anaconda wire or Anaconda-
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Continental wire with the word “asbestos” on its reels. The decedent testified it was even on
the cable and its jacket. Lageman and Kothe testified that defendant never place the word
“asbestos” on its cable, jackets, or reels. The jury heard the evidence and passed upon the
credibility of the witnesses and believed the plaintiff’s witnesses over Lageman and Kothe.
The defendant produced no records to substantiate its claim that the wire and cable sold to
U.S. Steel during decedent’s tenure did not contain asbestos. But, most importantly, the
decedent’s testimony illustrated that he was constantly replacing wire and cable at the plant.
A reasonable jury could have found from the evidence that some of that wire probably was
decades old in origin and manufactured by defendant’s companies with asbestos and that the
decedent was exposed to that process for years. The other issue for the jury was whether the
asbestos in the wire and cable caused the decedent’s mesothelioma and subsequent death. On
this issue the evidence was also sufficient to support the jury’s verdict.
¶ 47 Defendant claims that the plaintiffs could not prove causation because no witness
testified as to the quantity of asbestos fibers released when the decedent stripped the wires
and cables. However, defendant does not cite any authority which would require this type of
testimony, and the exactitude of providing the quantity of asbestos fibers released could be
an impossibility because the exact amount of wire or cable stripped in a day probably varied
and the amount of asbestos released into the atmosphere would also vary. In addition, the
decedent did his shredding in an enclosed shanty where he testified he had difficulty in
breathing and that the dust from the shredding process attached to his clothing and hair.
There did not appear to be much of an atmosphere for the dust to release into. When a
proponent of any argument fails to offer supporting legal authority or “any reasoned
argument,” the proponent of the argument waives consideration of the argument. Roiser v.
Cascade Mountain, Inc., 367 Ill. App. 3d 559, 568 (2006).
¶ 48 It appears that defendant’s theory in this case is that the quantity of asbestos fibers
released from the stripped wires and cable produces a small amount of asbestos dust that
could not cause mesothelioma. However, though the defendant has no burden to prove
anything, there was no expert testimony presented that supported defendant’s position. It was
plaintiff’s burden to introduce sufficient evidence to establish that defendant caused the
mesothelioma. Nolan v. Weil-McLain, 233 Ill. 2d 416, 434 (2009).
¶ 49 The “substantial factor” test used to establish causation requires the defendant’s conduct
to be responsible for producing the plaintiff’s injury. Thacker, 151 Ill. 2d at 355. As we
previously explained, to determine if asbestos exposure is a substantial factor in causation,
the “frequency, regularity and proximity” test may be used, which states that a plaintiff can
show exposure to defendant’s asbestos by proving that: (1) plaintiff “regularly worked in an
area where the defendant’s asbestos was frequently used”; and (2) the injured plaintiff
worked “sufficiently close to this area so as to come into contact with the defendant’s
product.” Thacker, 151 Ill. 2d at 359.
¶ 50 Because of the problems associated with proving one’s present condition was caused by
past exposure to a product, Illinois courts have not required a finding of the exact quantity
of asbestos fibers a decedent was exposed to. Thacker v. UNR Industries, Inc., 213 Ill. App.
3d 38, 40-41 (1991) (citing Wehmeier v. UNR Industries, Inc. 213 Ill. App. 3d 6 (1991)).
Instead, the plaintiffs in asbestos cases must show “the frequency of the use of the product
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and the regularity or extent of the plaintiff’s employment in proximity thereto.” (Internal
quotation marks omitted.) Wehmeier, 213 Ill. App. 3d at 29.
¶ 51 In the case at bar, the decedent testified that he worked with Anaconda wire and cable
containing asbestos from 1955 to 1984 at U.S. Steel. He was diagnosed with mesothelioma
in March 2008. The decedent testified that he stripped cable every day and would take the
scrap cable out to the salvage yard and use shredders to strip the cable. He would first shave
off the insulation that covered the wires in the cable to save the copper core for salvage. His
cable stripping work took place in a shanty where the shredding machine was located. During
the shredding process, the shanty became so dusty that he “couldn’t breathe.” The dust from
the cable shredding would cover him from head to toe, and the dust attached onto his clothes
and hair. In addition, the decedent testified that as part of his maintenance duties he would
repair industrial wire, which involved stripping the wire and installing lug nuts and cleaning
the end of the cable with a knife when the cable burned up, and again removing the
insulation. These processes also created dust as well. When decedent pulled the wires and
cable through conduit, dust was also created because debris would accumulate in the conduit
and created dust when the cable was pulled. In addition, Kothe testified that in the pulling
process the casings on the cable can be damaged. Dr. Dikman’s testimony in a hypothetical
question, which included the evidence most favorable to the plaintiff, produced sufficient
evidence of causation. Dr. Dikman opined that the decedent’s exposure to the asbestos wire
and cable “would be a contributing factor, a cause.” Dr. Dikman also testified that the
exposure to asbestos can be found in the lung area 50 years after exposure. Dr. Brody
confirmed that evidence of asbestos exposure can be found in dead people decades after their
deaths. Asbestos exposure can take many years before the disease is diagnosed. The disease
and the cause of death here are not disputed.
¶ 52 Motion for a New Trial
¶ 53 Next, we must determine whether the trial court erred in denying defendant’s motion for
a new trial. “If the trial judge, in the exercise of his discretion, finds that the verdict is against
the manifest weight of the evidence, he should grant a new trial; on the other hand, where
there is sufficient evidence to support the verdict of the jury, it constitutes an abuse of
discretion for the trial court to grant a motion for a new trial.” Maple, 151 Ill. 2d at 456. A
court’s ruling on a motion for a new trial will not be reversed except in those instances where
it is affirmatively shown that it clearly abused its discretion. Maple, 151 Ill. 2d at 455.
¶ 54 In determining whether the trial court abused its discretion, the reviewing court should
consider whether the jury’s verdict was supported by the evidence and whether the losing
party was denied a fair trial. Maple, 151 Ill. 2d at 455. A verdict is contrary to the manifest
weight of the evidence only when the opposite conclusion is clearly evident or the verdict
is unreasonable, arbitrary, and not based on the evidence. Bosco v. Janowitz, 388 Ill. App.
3d 450 (2009). We have already discussed that the jury verdict was supported by the
evidence and we cannot say that an opposite conclusion is clearly evident or that the verdict
is unreasonable, arbitrary, and not based on the evidence. Therefore, we will consider
whether any of defendant’s claims of error entitles it to a new trial.
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¶ 55 In the case at bar, the trial court barred defendant from introducing evidence that the
defendant was in compliance with OSHA regulations. The defendant indicated that it desired
to call Dr. Victoria Argento, a professional engineer. The trial court barred defendant from
showing that it complied with OSHA regulations finding such evidence applied only to
employer-employee relationships and was thus irrelevant and immaterial. The defense
advised the trial court that it would prepare a stipulation to be used as an offer of proof, but
never presented the stipulation or an offer of proof in any other form. However, while the
jury was deliberating, the defendant filed a motion in limine on the subject matter, and the
trial court sustained plaintiff’s objection to its timeliness.
¶ 56 Raymond Scott, the electrician, corroborated decedent’s testimony that by stripping the
cables, dust was produced and that the workers who stripped these cables were exposed to
the dust on a daily basis.
¶ 57 Erich Kothe, the engineer employed by Anaconda, corroborated plaintiff’s claim that
asbestos fibers were released into the air when Anaconda wire was stripped. Regis Lageman,
defendant’s corporate representative, admitted that defendant is responsible for Anaconda’s
and Continental’s wire that contained asbestos.
¶ 58 Plaintiff’s retained expert, Dr. Steven Dikman, a pathologist, testified in a hypothetical
question that since the decedent had worked around asbestos materials for many years that
were manufactured by the defendant and had inhaled dust containing asbestos, defendant’s
products would have been a contributing cause of his mesothelioma and death.
¶ 59 In addition, plaintiff’s second retained expert, Dr. Arnold Brody, who holds a Ph.D. in
cell biology and is currently a professor of molecular and biomedical sciences, opined that
all types of asbestos, including chrysotile asbestos, cause mesothelioma. Dr. Brody rejected
defendant’s claim that people cannot breathe in chrysotile asbestos, the type used in
defendant’s products, as “nonsense.” Defendant presented no expert witnesses.
¶ 60 There was more than sufficient evidence for the jury to find that the decedent was
exposed to defendant’s cable and wire containing asbestos and that the asbestos fumes he
was exposed to was a cause of his mesothelioma and death.
¶ 61 OSHA Regulations
¶ 62 On appeal, defendant claims that the trial court abused its discretion by excluding
evidence of OSHA’s asbestos regulation and as a result Ericsson was prejudiced by its
inability to use the regulation to show that any fiber released was within permissible
exposure limits.
¶ 63 When a motion in limine is granted or when an objection is sustained barring the use of
intended evidence, “the key to saving for review an error in the exclusion of evidence is an
adequate offer of proof in the trial court.” Snelson v. Kamm, 204 Ill. 2d 1, 23 (2003). An offer
of proof informs the trial court, opposing counsel, and the reviewing court of the nature and
substance of the evidence sought to be introduced. K4 Enterprises, Inc. v. Grater, Inc., 394
Ill. App. 3d 307 (2009).
¶ 64 As an initial matter, since defendant did not present an offer of proof or to what
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regulations it wanted to offer, it waived the issue. However, it tells us in its brief what it
intended to offer and if that had been preserved our decision would still be to affirm the trial
court on this issue.
¶ 65 The trial court has sound discretion when determining the admissibility of evidence, and
its decision will not be overturned on appeal absent a clear abuse of discretion. Sobczak v.
Flaska, 302 Ill. App. 3d 916, 929 (1998). “A trial court abuses its discretion only when no
reasonable person would agree with its decision.” Simich v. Edgewater Beach Apartments
Corp., 368 Ill. App. 3d 394, 411 (2006) (citing Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d
167, 177 (2003)).
¶ 66 Defendant claims that OSHA’s asbestos regulation applies to manufacturers and
therefore, the trial court erred in finding that it applies only to the employer-employee
relationship. However, defendant cites no case law that identifies instances where the OSHA
asbestos regulation was applied to a manufacturer.2 Conversely, the plaintiffs cite cases from
several other jurisdictions that held manufacturers, who are not employees, are not regulated
under OSHA. See Merritt v. Bethleham Steel Corp., 875 F.2d 603 (7th Cir. 1989); Jeter v.
St. Regis Paper Co., 507 F.2d 973 (5th Cir. 1975); Johnson v. Koppers Co., 524 F. Supp.
1182 (N.D. Ohio 1981); Cochran v. International Harvester Co., 408 F. Supp. 598 (W.D.
Ky. 1975).
¶ 67 Moreover, OSHA’s asbestos regulation under 29 C.F.R. § 1910.1001 (2009) references
only the duties that an employer has to his employee, not the duties of a manufacturer. For
example, section 1910.1001(c) states that the “employer shall ensure that no employee is
expose to an airborne concentration of asbestos in excess of 0.1 fiber per cubic centimeter
of air.” 29 C.F.R. § 1910.1001(c). “Employers who are manufacturers” are discussed in the
OSHA asbestos regulation; however, section 1910.1001(j)(5) clarifies that employers who
are manufacturers of asbestos products must comply with OSHA’s hazard communication
standard at section 1910.1200(g) as opposed to the OSHA asbestos regulation that Ericsson
sought to admit into evidence.
¶ 68 Under 29 C.F.R. §§ 910.2(c) through (d) (2010), OSHA defines employer as “a person
engaged in a business affecting commerce who has employees” and employee as “an
employee of an employer who is employed in a business of his employer which affects
commerce.” Since decedent worked for U.S. Steel, it would be considered the decedent’s
employer, not defendant. Therefore, the OSHA asbestos regulations would speak only to the
relationship between U.S. Steel and the decedent.
¶ 69 Since the OSHA asbestos regulations do not apply to defendant, evidence of the
regulations is irrelevant, and therefore, its exclusion was proper and not prejudicial to the
defendant. We cannot say that no reasonable person would agree with the trial court.
2
The cases cited by defendant speak to manufacturer negligence generally, but do not pertain
to OSHA specifically. Gelsumino v. E.W. Bliss Co., 10 Ill. App. 3d 604 (1973); Moren v. Samuel L.
Langston Co., 96 Ill. App. 2d 133 (1969).
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¶ 70 Improper Closing Argument
¶ 71 On appeal, defendant claims that the trial court erred in failing to grant a new trial,
because plaintiffs improperly referenced defendant’s corporate wealth in closing arguments.
Specifically, after plaintiffs asked the jury to award damages within the range of $7 to $14
million, plaintiffs said, “It’s a total win for this corporation if you don’t come back with a
substantial verdict. It’s an absolute win.”
¶ 72 Attorneys are afforded wide latitude during closing argument and may comment and
argue on the evidence and any inference that may be fairly drawn from that evidence.
¶ 73 Improper comments by counsel constitute reversible error only where the comments are
so prejudicial as to deprive the other party of the right to a fair trial. Issues concerning the
prejudicial effect of comments made during closing argument are within the sound discretion
of the trial court, and determinations regarding such issues will not be reversed absent a clear
abuse of discretion.
¶ 74 In determining whether there has been an abuse of discretion we may not substitute our
judgment for that of the trial court, or even determine whether the trial court exercised its
discretion wisely. Chakos v. Illinois State Toll Highway Authority, 169 Ill. App. 3d 1018,
1029 (1988).
¶ 75 Improper closing arguments require reversal only when the comments resulted in
substantial prejudice to the opposing party. Ramirez v. City of Chicago, 318 Ill. App. 3d 18,
26 (2000). However, generally, when an improper statement is made, if “the trial court
sustains a timely objection and instructs the jury to disregard the improper comment, the
court sufficiently cures any prejudice.” Willaby v. Bendersky, 383 Ill. App. 3d 853, 862
(2008).
¶ 76 Accordingly, the trial judge’s timely response here to the plaintiffs’ closing statement
effectively cured any prejudicial effect it may have generated. Following defendant’s
immediate objection, the trial judge sustained the objection and admonished the jury by
saying, “What is a win or a loss I think is irrelevant. What is relevant is if you find that the
defendant is liable then the plaintiffs are entitled to be fairly [compensated] for their losses.”
In immediately instructing the jury to disregard plaintiffs’ improper statement, the trial court
took the necessary steps to ensure defendant a fair trial. Therefore, the trial court was within
its discretion to deny defendant’s motion for a new trial on the ground of an improper closing
statement, because any prejudicial effect from the improper statement was cured.
¶ 77 Illinois Supreme Court Rule 213 Disclosure
¶ 78 On appeal, defendant claims that the trial court erred by failing to exclude Dr. Dikman’s
testimony when his Rule 213 disclosure did not indicate he would testify that plaintiff’s
exposure to the asbestos in Ericsson’s wires and cables was a cause that contributed to the
decedent’s mesothelioma. Defendant claimed Dr. Dikman’s Rule 213 written disclosure did
not give adequate notice of his testimony because it did not contain any mention or show any
understanding of wire and cable.
¶ 79 The admission of evidence pursuant to Rule 213 is within the sound discretion of the trial
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court and the court’s ruling will not be disturbed absent an abuse of discretion. Sullivan v.
Edward Hospital, 209 Ill. 2d 100, 109 (2004). Rule 213 disclosure requirements are
mandatory and subject to strict compliance by the parties. Sullivan, 209 Ill. 2d at 109.
¶ 80 However, the failure to comply with Rule 213 does not automatically require the
exclusion of the noncomplying party’s witnesses or testimony. Our supreme court has held
that in determining whether the exclusion of a witness or testimony is a proper sanction for
nondisclosure, the court “must consider” the following factors: (1) the surprise to the adverse
party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the
diligence of the adverse party; (5) the timely objection to the testimony; and (6) the good
faith of the party calling the witness. Sullivan, 209 Ill. 2d at 110.
¶ 81 First, we must determine whether there was a violation of Rule 213. Dr. Dikman’s
deposition was not taken by defendant in this case and defendant had the right to take his
deposition to determine all of his opinions.3 However, plaintiff filed a Rule 213(f) written
disclosure which stated in part:
“Dr. Dikman is expected to testify by hypothetical question as to concepts such
as latency and injury and causation.
***
Dr. Dikman is further expected to be able to testify concerning the circumstances
under which exposure to asbestos may be associated with mesothelioma, and will
testify concerning the results of his own experiences, the medical and scientific
literature, and existing epidemiologic studies concerning associations between
exposure to asbestos and the mortality and/or incidence of some forms of cancer.
***
Dr. Dikman is also expected to testify as to the specific requirements necessary
for an exposure to be considered a ‘substantial contributing factor.’ Dr. Dikman will
also testify as to hypothetical exposures based on the history of the plaintiff’s
exposure to asbestos and the potential of those exposures to cause [mesothelioma.
The hypothetical questions will be based upon the product identification deposition
and evidentiary deposition of plaintiff, as well as answers to interrogatories of
defendants for asbestos-containing products.”
¶ 82 Defendant claimed a Rule 213 violation after Dr. Dikman was asked the following
question:
“Q. Doctor, I want to ask you this question. Dr. Dikman, the Jury has heard the
testimony of Mr. Richard Campbell. I want you to assume that Mr. Campbell worked
with industrial-size Anaconda and Continental asbestos-containing wire and cable
starting in 1974 and going through into 1984 while at U.S. Steel. I want you to
further assume that Mr. Campbell and others in close proximity to him performed the
following activities, cut this wire and cable, skimmed this wire and cable to make
connections, and fed this wire and cable through a stripping machine which created
3
Dr. Dikman’s deposition was taken in the Scott case.
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visible dust which was swept up. [He] and others in close proximity to him
performed all of these activities on a regular and continuous and frequent basis. Dr.
Dikman, I want you to further assume that based on Ericsson corporation’s sworn
interrogatory answers, corporate representative testimony, Ericsson’s documents, and
Ericsson’s corporate admissions that there is asbestos-containing wire released as
asbestos fibers when cut and stripped. I further want you to assume that this process
created dust that he saw with his own eyes, that the dust got on his clothes, in his
hair, and in his car, that he breathed that dust into his lungs on a regular and
continuous and frequent basis for many years.
Doctor, based on your medical training, scientific, and medical experience and
research, in particular your training and experience with asbestos-related diseases, do
you have any expert opinion regarding whether Mr. Richard Campbell’s occupational
exposure to the Anaconda and Continental wire and cable was a cause that
contributed to his mesothelioma in addition to other occupational asbestos
exposures?
DEFENSE COUNSEL: Your Honor, objection, foundation, improper
hypothetical, and Rule 213.
THE COURT: Sidebar. I’m sorry. Before we do that, foundation and relevancy?
Did we discuss the 213 aspect–
DEFENSE COUNSEL: We did, your Honor.
THE COURT: –or are you raising that for the first time right now?
DEFENSE COUNSEL: It’s not being raised for the first time.
THE COURT: Pardon?
DEFENSE COUNSEL: I’m raising it, your Honor, yes, but–
THE COURT: Did we discuss that last week?
DEFENSE COUNSEL: We did discuss I think Rule 213.
THE COURT: And I ruled on it. Then I’ll overrule your objection at this time
based upon my rulings on Motions in Laminae [sic]; that means motions that were
heard before the commencement of the trial. You may answer, Doctor.
WITNESS: Yes, that exposure would be a contributing factor, a cause.”
¶ 83 At the time of defendant’s motion in limine to bar Dr. Dikman’s testimony, defendant
made the following objection after plaintiff started the hypothetical question at issue here.
“DEFENSE COUNSEL: Yes, your honor, we have an objection based upon 213.
We do not think that we were adequately disclosed of the opinions, the factual basis
for the opinions, and the conclusions of Dr. Dikman in the Scott and Campbell cases.
So yes, we have an objection as we have disclosed a number of times before.”
¶ 84 The crux of defendant’s objection was the use of the words, “exposure to Anaconda wire
and cable was a contributing cause of [plaintiff’s] disease.”
¶ 85 We believe that plaintiff’s written disclosure adequately disclosed what Dr. Dikman
answered in the hypothetical question. The exact words that were used in the question and
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answer need not be specifically set out in a written disclosure when the subject matter is
adequately disclosed in written discovery. Defendant chose not to take the doctor’s
deposition when it had the right to do so to discover with exactitude what he was going to
say.
¶ 86 However, even if we found a Rule 213 violation, we would still find that the trial court
did not abuse its discretion in overruling defendant’s objection by utilizing the six Sullivan
factors.
¶ 87 First, there was no surprise to defendant. It had Dr. Dikman’s Rule 213(f) written
disclosure that indicated that the witness would testify to a hypothetical question to
determine causation. It knew that a proper hypothetical question had to be based on the
evidence and that plaintiff’s evidence disclosed decedent’s exposure to cable and wire
manufactured by defendant for a long period of time that contained asbestos. It knew that the
witness had opined that all types of asbestos cause mesothelioma. It took Dr. Dikman’s
deposition in the Scott case, which was a similar case, and was well aware of his opinions.
Defendant knew that Dr. Dikman had traveled throughout the country testifying in asbestos
cases for plaintiffs and finding causation in similar cases.
¶ 88 Second, Dr. Dikman’s testimony was not a surprise and therefore not prejudicial to
defendant as the witness was disclosed as a controlled expert who would render a positive
opinion on causation from a hypothetical question. It further knew from the hearing on its
motion in limine to bar, before the trial, the scope of the question that plaintiff was going to
ask and made no attempt to obtain testimony from a controlled expert on its own behalf to
counter Dr. Dikman’s testimony. In addition, it knew the trial court was going to allow the
hypothetical question prior to trial, when its motion in limine was denied.
¶ 89 Third, defendant knew that Dr. Dikman was a controlled expert who would opine on the
asbestos or effects of asbestos and its causation to plaintiff’s mesothelioma. The fact that the
written disclosure did not use the words “wire and cable” was not a substantial deviation
from what was given to defendant in the disclosure.
¶ 90 Fourth, there was a lack of diligence on the part of defendant in not taking Dr. Dikman’s
deposition and in not obtaining its own controlled expert to counter his opinions. Fifth, the
objection by the defendant was timely, and sixth, we cannot say that the party calling the
witness was not in good faith, as all of the facts indicate good faith.
¶ 91 We cannot find that the trial court abused its discretion in denying defendant’s motion
in limine and later in overruling defendant’s objection to the hypothetical question asked to
Dr. Dikman.
¶ 92 CONCLUSION
¶ 93 The trial court properly denied defendant’s motion for judgment notwithstanding the
verdict or, in the alternative, for a new trial. The OSHA regulations were properly excluded,
any improper statements during closing arguments were cured by the trial court and no
prejudice resulted, and plaintiff did not violate Illinois Supreme Court Rule 213.
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¶ 94 Affirmed.
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