McKinney v. Hobart Brothers Co.

2018 IL App (4th) 170333FILED
NOS. 4-17-0333 September 5, 2018
Carla Bender
th
IN THE APPELLATE COURT 4 District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
CHARLES MCKINNEY, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
HOBART BROTHERS COMPANY, ) No. 12L27
Defendant-Appellant. )
) Honorable
) Rebecca S. Foley,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court, with opinion.
Justices Holder White and DeArmond concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Charles McKinney, has mesothelioma, a disease he contracted by
inhaling asbestos fibers. He brought an action against defendant, Hobart Brothers Company, for
failing to warn him of the dangerousness of asbestos-containing welding rods that defendant had
manufactured and to which plaintiff came in close proximity for eight months in the early 1960s.
A jury returned a verdict against defendant and in his favor. Defendant appeals, arguing that the
trial court should have granted its motion for judgment notwithstanding the verdict.
¶2 For all that appears in the record, the industry to which defendant belonged had
no knowledge in the 1960s that welding rods could release asbestos fibers. Defendant could not
have owed plaintiff a duty to warn of a hazard of which defendant and the industry were
unaware. Because of the lack of duty, the trial court should have granted defendant’s motion for
judgment notwithstanding the verdict. Another reason why the court should have granted the
motion was that the record contains no evidence that the welding rods were a substantial cause of
plaintiff’s mesothelioma. Therefore, we reverse the trial court’s judgment.
¶3 I. BACKGROUND
¶4 A. The Counts Against Defendant
¶5 On February 21, 2012, plaintiff brought this lawsuit against various defendants
who are not parties to this appeal. He alleged that insulation and brakes the defendants had
manufactured, distributed, or supplied had released asbestos fibers and had caused him to
contract mesothelioma. Initially, defendant was not a party to this lawsuit.
¶6 On April 25, 2013, in two counts that plaintiff added to his complaint with the
trial court’s permission, he alleged that defendant, too, had caused his mesothelioma by willfully
and wantonly, or at least negligently, failing to warn of the dangerousness of its product.
Although, in these counts against defendant, plaintiff did not identify the allegedly dangerous
product, it soon became evident that he meant Hobart 6010 welding stick electrodes, which
defendant had manufactured for use in shielded metal arc welding.
¶7 B. A Brief Description of Defendant’s Welding Rods
¶8 Defendant manufactures welding rods, which, when introduced into an electrical
arc, make the molten material necessary to bind two pieces of base metal together. The welding
rods are made up of two parts: the steel core and the surrounding flux. Thirty years ago, the flux
of defendant’s “6010” rods contained chrysotile asbestos, a type of asbestos that can cause
mesothelioma many years after one inhales it.
¶9 C. DuPont’s Testimony
¶ 10 Defendant’s retained expert was John DuPont, a professor of materials science
and engineering. The substance of his testimony was as follows.
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¶ 11 The purpose of the flux was to protect the weld when it was still in a liquid state
and to keep it clean. Keeping the molten weld clean was important because liquids could
dissolve gases, which would weaken the weld. The flux burned up in the electrical arc and, in so
doing, pushed the atmospheric gases out of the way, forming “a protective blanket of an inner
atmosphere over the liquid pool.” This was where the chrysotile asbestos in the flux served a
purpose. The chrysotile asbestos was about 13% water, and as the water was released when the
asbestos burned, the steam served as an “arc force,” providing “deep penetration” toward the
molten weld.
¶ 12 DuPont opined that, for two reasons, it was “physically impossible” for respirable
asbestos fibers to have escaped from defendant’s welding rods.
¶ 13 First, the asbestos fibers were encapsulated. They were chemically bound to, and
completely covered by, the sodium silicate in the flux. Even if particles broke off the flux when
the welding rods were removed from a box, inserted into a Stinger (an electrode holder), or
stepped on, they would be particles of sodium silicate encapsulating asbestos—and none of these
particles would be small enough to inhale.
¶ 14 Second, the welding arc reached a temperature of 10,000 degrees Fahrenheit, and
the welding pool was at least 2700 degrees Fahrenheit. Because asbestos burned at 1500 degrees
Fahrenheit, no asbestos could have been released from the welding fume.
¶ 15 D. Frank’s Testimony
¶ 16 Arthur L. Frank, a physician and professor of occupational health, was plaintiff’s
retained expert. Because Frank, by his own admission, was not a materials scientist, industrial
hygienist, engineer, or mineralogist and had never performed, nor was qualified to perform, any
fiber testing on welding rods, defendant disputed Frank’s qualifications to opine on the capability
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of defendant’s welding rods to release respirable asbestos fibers. The trial court, however, found
Frank to be sufficiently qualified and admitted his evidence deposition.
¶ 17 In his evidence deposition, Frank gave an overview of literature from the 1940s
onward that warned of the health hazards of asbestos. He believed that, for two reasons,
defendant’s welding rods were capable of giving off respirable, cancer-causing asbestos fibers.
First, in his decades of experience with asbestos, Frank had never known of an asbestos-
containing product that, if “properly manipulated,” would not give off asbestos fibers. Second,
Frank testified: “There’s the work of Dr. Dement with fibers being released from welding rods.”
¶ 18 Frank expressed the following opinion:
“[T]o the extent that [plaintiff] worked with Hobart 6010 asbestos-containing rods
or that co-workers were using them, having had prior experience with them,
knowing that they give up asbestos fibers, that the exposures that he had to
asbestos from those rods would have[,] in my opinion[,] been a substantial
contributing cause to his mesothelioma.”
¶ 19 Frank conceded that the fume would have had no asbestos in it. He testified,
however:
“I’m not aware of any product that contained asbestos that[,] if
manipulated[,] could not give off asbestos fibers. So[,] you run from what’s called
[‘]friable[’] materials that can be easily crushed by hand and release dust, so some
insulation materials were like that, or a bag of raw asbestos would certainly be
considered friable. But then[,] at the other end, you have asbestos cement pipe.
You would think that a cement pipe would keep fibers in place. But if you saw or
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cut or bevel the edges of that pipe, you will give off fibers, so anything in between
is possible.”
¶ 20 E. Plaintiff’s Impeachment of Hensley and the Admission
of the Impeaching Material as Substantive Evidence
¶ 21 Timothy Hensley was defendant’s corporate representative. Plaintiff’s attorney
cross-examined Hensley about reports by a research scientist, Steven Compton, and other
nontestifying third-party experts regarding their fiber testing of welding rods—even though
Hensley had never mentioned these reports on direct examination. (We will follow plaintiff’s
lead by calling these third-party reports “the Compton studies,” even though, strictly speaking,
they were not all by Compton.) Defendant’s attorney objected on the ground of hearsay and a
lack of foundation. In response to the objection, plaintiff’s attorney assured the trial court that he
was merely impeaching Hensley and that, “[a]s far as the studies actually going to the jury, they
won’t.” The court overruled the objection, and plaintiff’s attorney continued cross-examining
Hensley on the Compton studies.
¶ 22 On redirect examination, defendant’s attorney questioned Hensley in more detail
about the Compton studies, with the intention of exposing their flaws and unreliability. During
his redirect examination, he displayed pages from the Compton studies on a large screen, an
“Elmo,” so the jury could follow along.
¶ 23 Because defendant’s attorney had displayed or “published” the Compton studies
to the jury on redirect examination, the trial court agreed with plaintiff’s attorney that they
should be admitted in evidence and should be included in the jury folder, which went back to the
jury during its deliberations.
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¶ 24 F. Plaintiff’s Testimony
¶ 25 For eight months in 1962 and 1963, plaintiff worked at Portable Elevator, in
Bloomington, Illinois. For seven of those eight months, his job was spot-welding, using an
acetylene torch and bronze brazing rods. In addition to employing torch welders, such as
plaintiff, Portable Elevator employed stick or arc welders, who used Hobart 6010 welding rods—
all of which contained asbestos before 1979.
¶ 26 Plaintiff worked on the second floor, and the stick welders worked on a grated
mezzanine, above, which was accessed by an open, wooden stairway. The stick welders’ used
welding rods—the stubs—would fall through the grated mezzanine floor, onto the second floor,
where defendant worked. The workplace was dirty.
¶ 27 Each day at work, plaintiff took two 15-minute breaks in the break room, which
was upstairs, on the mezzanine. To get to the break room, he had to climb the steps and walk by
the stick welders, over the mezzanine floor littered with stubs. The break room had no door. It
was just an open space, with a picnic table, where workers could sit.
¶ 28 When walking by the stick welders, defendant saw boxes of welding rods. The
boxes had “HOBART” and “6010” on them. He did not know, at the time, that the welding rods
contained asbestos.
¶ 29 G. Plaintiff’s Exposure to Asbestos as a Mechanic
¶ 30 For over 40 years, plaintiff was an automobile mechanic, and, in that occupation,
he worked on brakes that contained asbestos. According to his physician, Bradley Smith, he had
a “history of asbestos exposure [from] working with brake shoes *** in the past.” Frank opined
that plaintiff’s exposure to asbestos from installing brakes “would have been a substantial
contributing factor to [his] developing *** mesothelioma.”
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¶ 31 II. ANALYSIS
¶ 32 A. Defendant’s Arguments Against Frank’s Testimony
¶ 33 1. The Claimed Violation of Rule 213(f)(3)(ii)
¶ 34 Frank was a “ ‘controlled expert witness’ ” within the meaning of Illinois
Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007) in that he was plaintiff’s “retained expert.”
Therefore, “[u]pon written interrogatory,” plaintiff was obligated to provide defendant with “the
conclusions and opinions of” Frank (among other items of information). Ill. S. Ct. R.
213(f)(3)(ii) (eff. Jan. 1, 2007). It appears to be undisputed that defendant served upon plaintiff a
timely Rule 213(f) interrogatory. Plaintiff responded with a supplemental interrogatory answer,
which, after listing Frank’s qualifications, stated as follows:
“Dr. Frank will testify regarding latency of disease, asbestos, asbestos fiber types,
and the propensity of the various asbestos fibers to cause disease in humans,
including carcinogenicity (lung cancer, mesothelioma[,] and other cancers). Dr.
Frank will testify that [plaintiff’s] mesothelioma was caused by his exposures to
asbestos, including exposures to asbestos from the products of all defendants. Dr.
Frank will also testify with respect to issues related to ‘state of the art.’
Dr. Frank is expected to testify consistent[ly] with testimony he has given
in this, and other cases, in central Illinois asbestos litigation. The transcript of his
deposition given on November 12, 2012, in this case, is available for [d]efendants
upon request.”
¶ 35 The first and third sentences of this interrogatory answer consist of “subject
matter” (Ill. S. Ct. R. 213(f)(3)(i) (eff. Jan. 1, 2007)), not “conclusions and opinions” (Ill. S. Ct.
R. 213(f)(3)(ii) (eff. Jan. 1, 2007)). The only explicit conclusion or opinion is in the second
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sentence: “Dr. Frank will testify that [plaintiff’s] mesothelioma was caused by his exposures to
asbestos, including exposures to asbestos from the products of all defendants.” The final
sentence of the interrogatory answer states that Frank will “testify consistent[ly]” with his
discovery deposition, but, on November 12, 2012, when Frank gave his discovery deposition,
defendant was not yet a party to this case, and Frank had no occasion to discuss welding rods at
that time. Thus, the only disclosed conclusion or opinion was that defendant’s asbestos-
containing products had caused plaintiff’s mesothelioma.
¶ 36 The supreme court has stated that Rule 213 disclosures must “drop down to
specifics” (internal quotation marks omitted) (Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109
(2004)), and it would be difficult to imagine a more general disclosure than the bare statement
that defendant’s products caused plaintiff’s mesothelioma. Under Illinois Supreme Court Rule
213(g) (eff. Jan. 1, 2007), “[t]he information disclosed in answer to a Rule 213(f) interrogatory,
or in a discovery deposition, limits the testimony that can be given by a witness on direct
examination at trial.” Defendant argues that, because “Frank’s opinion that welding rods [could]
release asbestos fibers was not disclosed before his videotaped evidence deposition,” the trial
court should have granted defendant’s motion to bar plaintiff from presenting to the jury the
portion of Frank’s evidence deposition in which he expressed that opinion. See Ill. S. Ct. R.
219(c)(iv) (eff. July 1, 2002); Sullivan, 209 Ill. 2d at 110 (“Where a party fails to comply with
the provisions of Rule 213, a court should not hesitate sanctioning the party, as Rule 213
demands strict compliance.” (Internal quotation marks omitted.)).
¶ 37 Plaintiff counters that an expert witness may testify to logical corollaries of a Rule
213(f)(3)(ii) disclosure (see Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d
30, 39 (2003)) and that the ability of defendant’s welding rods to release respirable asbestos
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fibers was a logical corollary of the disclosure that “[plaintiff’s] mesothelioma was caused by his
exposures to asbestos, including exposures to asbestos from the products of all defendants.”
¶ 38 We agree. It is commonly known that mesothelioma is caused by the inhalation of
asbestos fibers. It logically follows that, if defendant’s asbestos-containing welding rods were a
cause of plaintiff’s mesothelioma (as Frank was expected to opine), the welding rods necessarily
released respirable asbestos fibers and plaintiff inhaled them. Therefore, the trial court was
within its discretion in finding no sanctionable violation of Rule 213(f)(3)(ii) in that respect. See
Sullivan, 209 Ill. 2d at 109; Madden v. Scott, 2017 IL App (1st) 162149, ¶ 23 (“[W]e will address
only the specific arguments which they have made.”).
¶ 39 2. The Reliability of Frank’s Methodology
¶ 40 In defendant’s view, “Frank’s fiber-release opinion was *** inadmissible because
it was not the product of a reliable methodology.” Frank’s methodology, according to defendant,
was to reason simply that defendant’s welding rods must have released respirable asbestos fibers
because Frank had never seen any asbestos-containing product that, if “properly manipulated,”
would not do so.
¶ 41 Frank admitted that “[t]he asbestos content of a product [was] not necessarily an
indication of its relative health risk,” given that, “[f]or many products, the fibers [were] tightly
bound to the matrix or [were] encapsulated.” Even so, he noted, “[a] potential health risk [arose]
when asbestos fibers [were] set free, for example, during drilling or sawing of asbestos cement
sheets.”
¶ 42 Plaintiff’s attorney asked Frank:
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“Q. Doctor, the jury has heard the term [‘]encapsulation.[’] And have you
encountered encapsulated products that[,] even when manipulated[,] gave off no
fibers?
***
A. No, I’ve never seen a product that’s encapsulated or any product that[,]
if properly manipulated[,] wouldn’t give off free asbestos fibers.”
Later in his evidence deposition, Frank again testified:
“A. I’m not aware of any product that contained asbestos that[,] if
manipulated[,] could not give off fibers. So[,] you run from what’s called
[‘]friable materials[’] that can easily be crushed by hand and release dust, or some
insulation materials were like that, or a bag of raw asbestos would certainly be
considered friable. But then[,] at the other end[,] you have asbestos cement pipe.
You would think that a cement pipe would keep fibers in place. But if you saw or
cut or bevel the edges of that pipe, you will give off fibers, and so anything in
between is possible.”
¶ 43 Defendant argues: “The mere fact that Dr. Frank personally had ‘never seen’
other products that did not release asbestos fibers despite containing asbestos says nothing about
whether welding rods can release asbestos fibers, especially given Dr. Frank’s lack of expertise
on that question.” Defendant quotes the First District: “While testimony grounded in expert
analysis of the known physical facts is welcomed, conclusory opinions based on sheer,
unsubstantiated speculation should be considered irrelevant” and incapable of satisfying a
plaintiff’s burden of proof. (Internal quotation marks omitted.) Wiedenbeck v. Searle, 385 Ill.
App. 3d 289, 293 (2008).
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¶ 44 We agree it would be “sheer, unsubstantiated speculation” (id.) to conclude that,
simply because other asbestos-containing products, such as cement pipes, released respirable
asbestos fibers when they were sawed, cut, or beveled, defendant’s welding rods released
respirable asbestos fibers when they were jostled around in a packing box, dropped, or stepped
on.
¶ 45 Plaintiff points out, however, that Frank also relied on a welding-rod study by
someone named Dement. Defendant’s attorney asked Frank in his evidence deposition:
“Q. *** Have you brought any kind of—or may I see the documentation
upon which you rely for saying there’s release of asbestos fibers from—
A. You and I just—
A.—asbestos-containing welding rods?
Q. I didn’t bring any such literature with me. I’m sure you have it. You
and I have discussed this many times in the past. There’s the work of Dr. Dement
with fibers being released from welding rods.”
¶ 46 An expert witness, such as Frank, may rely on “facts or data” gathered by experts
in other specialties. Ill. R. Evid. 703 (eff. Jan. 1, 2011). Although an expert witness may not
parrot another expert’s opinion if that opinion represents an exercise of professional discretion or
judgment (see Dura Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 614 (7th
Cir. 2002); Citibank, N.A. v. McGladrey & Pullen, LLP, 2011 IL App (1st) 102427, ¶ 21
(adopting Dura)), expert witnesses commonly rely on facts or data gathered by experts in other
specialties—for example, “an X ray or other laboratory analysis which is typically performed by
a technician or laboratory scientist other than the testifying expert” (Kurrack v. American
District Telegraph Co., 252 Ill. App. 3d 885, 897-98 (1993)).
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¶ 47 Of course, the third-party technician on which the expert relies must be
trustworthy. Plaintiff had the burden of laying a foundation for Frank’s expert opinion by
showing not only that Frank himself was qualified but also that his reliance on Dement’s work
was (1) customary in Frank’s field and (2) reasonable. See Connelly v. General Motors Corp.,
184 Ill. App. 3d 378, 391 (1989); see also City of Chicago v. Anthony, 136 Ill. 2d 169, 186
(1990); Lovelace v. Four Lakes Development Co., 170 Ill. App. 3d 378, 384 (1988). Defendant
does not argue that plaintiff failed to lay that foundation. In fact, in its reply brief, defendant does
not respond at all to plaintiff’s argument that Frank relied on Dement’s work. See Department of
Central Management Services/The Department of State Police v. Illinois Labor Relations Board,
State Panel, 2012 IL App (4th) 110356, ¶ 26 (“We note the Department did not file a reply brief,
and thus it did not respond to the Board’s forfeiture argument. Accordingly, we find the
Department has forfeited any argument based on the labor-nexus test.”); Holder v. Caselton, 275
Ill. App. 3d 950, 959 (1995) (The “plaintiff appears to concede that point in her reply brief by
failing to respond.”). Because defendant, by its silence, appears to concede the customariness
and reasonableness of Frank’s reliance on Dement’s work with welding rods, we find no abuse
of discretion in the admission of Frank’s testimony that defendant’s welding rods could release
respirable asbestos fibers when “properly manipulated.” See Anthony, 136 Ill. 2d at 186.
¶ 48 B. The Admission of the Compton Studies as Substantive Evidence
¶ 49 Citing Costa v. Dresser Industries, Inc., 268 Ill. App. 3d 1, 11 (1994), defendant
argues that, by using third-party, nontestifying expert reports, namely, the Compton studies, to
impeach Hensley or to prove notice to defendant that welding rods were capable of releasing
asbestos fibers, plaintiff “did not elicit substantive evidence of fiber release in this case.”
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¶ 50 Plaintiff agrees. He writes: “Plaintiff did not use the [Compton studies] as
substantive evidence of fiber release.” Plaintiff continues, however: “It was only after
[defendant] published the reports to the jury and went over them in detail with Hensley that
[p]laintiff asked to have the reports admitted. [Citations.] Any error in admitting the Compton
studies as evidence rests squarely on the shoulders of [defendant] ***.”
¶ 51 This reasoning is not quite fair to defendant. After all, defendant objected to the
Compton studies on the ground of hearsay. In opposition to the hearsay objection, plaintiff cited
Piano v. Davison, 157 Ill. App. 3d 649 (1987), in which the appellate court held it was
permissible for an expert to testify about a report the expert had reviewed in reaching his or her
opinion, even if the expert had chosen not to rely on the report (id. at 672; see also Leonardi v.
Loyola University of Chicago, 168 Ill. 2d 83, 105 (1995)). The trial court overruled defendant’s
hearsay objection, thereby signifying its agreement with plaintiff that the Compton studies were
not offered for their truth or as substantive evidence. See Edward J. Imwinkelried,
Rationalization and Limitation: The Use of Learned Treatises to Impeach Opposing Expert
Witnesses, 36 Vt. L. Rev. 63, 70-71 (2011) (because the hearsay rule forbids the text to be
offered for its truth, the text must be used for impeachment: to show, for example, that the
witness’s disregard or hasty rejection of the text is indicative of carelessness or bias). But cf.
People v. Virgin, 302 Ill. App. 3d 438, 448 (1998) (“Where a witness is impeached by a
contradictory statement made out of court by another person, as opposed to by the witness
himself, then the out-of-court statement is offered for its truth in order to attack the credibility of
the witness. Unlike impeachment by self-contradiction, in this type of impeachment [i]t is not the
contradiction but the truth of the contradicting assertion *** that constitutes the probative end.”
(Internal quotation marks omitted.)).
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Defendant had the right to proceed on that premise and to attempt to neutralize the impeachment
without transforming the Compton studies into substantive evidence.
¶ 52 The supreme court has explained:
“[A] party waives the right to raise as error action taken by the court at the
instance of that party; it is quite another matter when, after an exclusionary
motion is denied, the party himself raises a matter so as to lessen its impact, when
the party knows that[,] if he does not raise it, the opponent will. The difference is
that, in the first instance, the request and the subsequent assertion of error are
inconsistent with one another. In the second instance[,] the aim is consistent: once
the motion to exclude the matter is denied, the party must try to limit the effect
the matter will have on the trier of fact. He has not waived the issue by raising it;
he has merely tried to ensure that it does the least damage to his witness’[s]
credibility.” People v. Spates, 77 Ill. 2d 193, 199-200 (1979).
After the trial court overruled defendant’s hearsay objection, defendant did not waive its
objection by its subsequent good-faith efforts at damage control. See Department of
Transportation v. Quincy Coach House, Inc., 64 Ill. 2d 350, 359 (1976); Morrison v. Community
Unit School District No. 1, Payson, 44 Ill. App. 3d 315, 318-19 (1976); Apa v. National Bank of
Commerce, 374 Ill. App. 3d 1082, 1088 (2007). A party need not stand on an overruled
objection; the party may follow the law as laid down by the trial judge and offer similar evidence
without forfeiting its objection. Chicago City Ry. Co. v. Uhter, 212 Ill. 174, 182 (1904).
¶ 53 In sum, then, the Compton studies were not substantive evidence that defendant’s
welding rods could have released respirable asbestos fibers. The redirect examination did not
forfeit the hearsay objection and did not make the Compton studies admissible as substantive
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evidence. See Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 469 (1992) (upholding the
denial of a motion for judgment notwithstanding the verdict because “the jury verdict is properly
and adequately supported by competent evidence” (emphasis added)); Bartlett Bank & Trust Co.
v. McJunkins, 147 Ill. App. 3d 52, 62 (1986) (“When deciding a motion for judgment n.o.v., the
court may consider only the competent evidence introduced at trial.” (Emphasis added.)).
¶ 54 Frank’s testimony, however, was substantive evidence that defendant’s welding
rods could have released respirable asbestos fibers. He testified: “[T]o the extent that plaintiff
worked with Hobart 6010 asbestos-containing rods or that co-workers were using them, having
had prior experience with them, knowing that they give up asbestos fibers, that the exposures he
had to asbestos from these rods would have[,] in my opinion[,] been a substantial contributing
cause to his mesothelioma.” (Emphasis added.) So, we disagree with defendant that the record
lacked any competent evidence that defendant’s welding rods were capable of releasing asbestos.
¶ 55 Granted, DuPont testified that any fragments that broke off the welding rods
would have been 100 microns at the smallest and, thus, would have been too small to be inhaled.
The jury, however, could have believed Frank over DuPont. We defer to the jury’s determination
of the credibility of witnesses and to its weighing of the evidence. See Donaldson v. Central
Illinois Public Service Co., 199 Ill. 2d 63, 89 (2002) (in reviewing the ruling on a motion for
judgment notwithstanding the verdict, the reviewing court may not substitute its judgment for the
jury’s, nor may the reviewing court reweigh the evidence or determine the credibility of the
witnesses).
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¶ 56 C. No Duty to Warn of What is Contemporaneously Unknown to the Industry
¶ 57 The amended complaint had two counts against defendant. Count V alleged that
defendant “was willful and wanton” in failing to warn plaintiff of the dangers of asbestos, and
count VI alleged that defendant was negligent in failing to do so.
¶ 58 Defendant argues:
“But the record was devoid of any evidence that any manufacturer should have
reasonably foreseen that the use of asbestos-containing welding rods in particular
might pose a risk of exposing coworkers in the same building to respirable
asbestos fibers. At most, the evidence at trial showed that [defendant] did not
become aware of the potential risk of asbestos until the early 1970s, nearly a
decade after plaintiff’s purported exposure, and that evidence pertained to the
potential risk posed to individuals working directly with raw asbestos, not
bystanders to the finished welding[-]rod product like plaintiff.” (Emphases in
original.)
Defendant notes that, in Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 35 (1980), the supreme
court imposed a knowledge requirement in failure-to-warn cases: the plaintiff had to “prove that
the defendant manufacturer knew or should have known of the danger that caused the injury.” It
is true that, in Woodill, the plaintiffs brought an action for strict products liability (id. at 28)
whereas, in the present case, plaintiff alleges that defendant was negligent (or willful and
wanton). However, that makes no difference—the two legal theories of liability have the same
knowledge requirement. “[L]iability based upon a failure to warn adequately of dangers
(Restatement (Second) of Torts [§] 402A, comment j (1965)) is itself a doctrine borrowed from
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negligence.” Id. at 33. It follows that, regardless of whether the failure-to-warn case sounds in
strict liability or negligence, the inquiry is the same:
“The inquiry becomes whether the manufacturer, because of the ‘present state of
human knowledge’ (Restatement (Second) of Torts [§] 402A, [cmt.] k (1965)),
knew or should have known of the danger presented by the use or consumption of
a product. Once it is established that knowledge existed in the industry of the
dangerous propensity of the manufacturer’s product, then the plaintiff must
establish that the defendant did not warn, in an adequate manner, of the danger.”
Id. at 35.
¶ 59 Thus, even if (as the jury impliedly found) it was an objective fact that
defendant’s welding rods could release respirable asbestos fibers by being stepped on or by being
jostled against one another in a box or a stub bucket, defendant had a duty to warn plaintiff in
1962 and 1963 only if, during those years, defendant knew or should have known that its
welding rods could release respirable asbestos fibers by being so manipulated and that someone
could become ill as a result. “A duty to warn of a particular hazard will be imposed only where
there is unequal knowledge, either actual or constructive, and the defendant knows or should
know that injury may occur if no warning is given.” (Emphasis added.) Carrizales v. Rheem
Manufacturing Co., 226 Ill. App. 3d 20, 25 (1991) (negligence action). What defendant should
have known comes down to what was known in the industry of which defendant was a part. See
Woodill, 79 Ill. 2d at 35.
¶ 60 Because the industry got whatever knowledge it had from literature and because
the existence and contents of the literature are undisputed, our standard of review on the question
of duty is de novo. See Thompson v. Gordon, 241 Ill. 2d 428, 438-39 (2011) (“Whether a duty is
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owed presents a question of law for the court to decide, while breach of duty and proximate
cause present questions of fact for the jury to decide.”); Kokoyachuk v. Aeroquip Corp., 172 Ill.
App. 3d 432, 439 (1988) (“The determination of whether a duty to warn exists is normally a
question of law; however, when the record is in dispute, it becomes a question of fact.”).
Therefore, we will decide de novo whether defendant had a duty, in 1962 and 1963, to warn
plaintiff of its product. Again, the existence of such a duty depends on whether, in 1962 or 1963,
“knowledge existed in the industry of the dangerous propensity of the manufacturer’s
product”—which, in this case, was not raw asbestos but defendant’s welding rods, in which
asbestos was encapsulated. (Emphasis added.) See Woodill, 79 Ill. 2d at 35.
¶ 61 Plaintiff tends to blur this distinction. He argues:
“Defendant’s claim in its brief that ‘[a]t most, the evidence at trial showed
that [defendant] did not become aware of the potential risk of asbestos until the
early 1970s is fiction. [Citation.] In fact, [d]efendant tacitly admitted it knew of
the hazards of asbestos as early as 1947, if not earlier. [Citations.] Dr. Frank—the
only state[-]of[-]the[-]art witness to testify—testified the medical and scientific
literature definitively established asbestos as the cause of mesothelioma by 1960.
[Citation.]” (Emphases added.)
Other than distinguishing a case that defendant cites, In re Estate of Holmes, 2011 IL App (4th)
100462, on the ground that it pertained to take-home exposure rather than workplace exposure,
that is the only argument plaintiff makes for imposing a duty to warn on defendant. We will
examine, one by one, the citations to the record in the above-quoted passage from plaintiff’s
brief. There are six such citations, each of which is to testimony.
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¶ 62 First, according to Hensley’s testimony, defendant believed it had bought the
chrysotile asbestos it had used in its welding rods from Johns Manville Corporation or Carey
Canadian Mines. Employees in defendant’s research department would “make sure that they had
the proper raw materials in order to make whatever kind of flux they needed for the rods that
were being made.” To that end, they “would research the various raw materials.” Plaintiff’s
attorney asked Hensley:
“Q. And they’d sort of keep up on various information related to all of the
various raw materials, whether it be asbestos or anything else, so that they’re
aware of what was being discussed in science and medicine in both those different
ingredients, right?
A. That’s true.”
¶ 63 Second, Hensley testified that, “over the years,” defendant had done “abatement”
in its own buildings, to remove or contain asbestos—”because the way [defendant] treats
asbestos nowadays is they treat it as a hazard.” From 1939 to 1981, defendant had engineers who
“would keep up on the literature as it related to the raw materials, including asbestos.”
¶ 64 Third, Hensley testified that asbestos was one the raw materials defendant used in
manufacturing “a few of the rods.” Plaintiff’s attorney asked him:
“Q. Okay. And as you told us today, the engineers would keep up on the
literature as it related to those raw materials, including asbestos[,] right?
A. Yes, and we tried to.
Q. So[,] if there were articles in the literature that discussed asbestos being
harmful, that’s something the engineers would have noticed[,] right?
A. They may have.
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Q. Okay. If there were articles in the literature that discussed health effects
from breathing asbestos or from asbestos coming out of products, those are the
kind of things they would have looked at[,] right?
A. They may have.”
¶ 65 Fourth, Hensley testified he was unsure if the engineers “found every piece of
literature out there.” Plaintiff’s attorney asked him:
“Q. But one of the things you know was that they were trying, when they
searched the literature, to find out what was out there about the hazards of the raw
materials, the hazards to the welders, the people that used the ultimate product;
correct?
A. Yes.”
¶ 66 Fifth, Hensley testified that, “at least by 1971,” defendant knew that asbestos was
dangerous to breathe. He could not rule out that defendant knew of the dangerousness of asbestos
as early as 1947.
¶ 67 Sixth, Frank testified that, in 1942, a medical doctor, W.C. Hueper, warned of the
toxicity of asbestos, in his book Occupational Tumors and Allied Diseases.
¶ 68 Photocopied pages from Hueper’s book are in the record as plaintiff’s exhibit
No. 967. After describing the types of asbestos and where it was mined, Hueper noted in his
book that “[t]he production of asbestos ha[d] risen enormously in recent years,” mostly because
of its use in the automobile industry but also because it was used in a variety of other products,
including fire-resistant clothes, blankets, curtains, thread, and rope; filter cloths; millboard;
wallboard; shingles; tile; mortar; insulation for steam pipes, water pipes, and boilers; brake
linings; paper; and mattresses.
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¶ 69 Hueper was concerned about the well-being of the thousands of factory workers
who made those products. He wrote:
“The chief hazard consists in the inhalation of asbestos dust, which is produced
abundantly during the preparation of the mineral for the spinning process
(purification and removal of stony impurities) and during other phases of the
production and manufacturing process of asbestos and asbestos containing goods.
Direct contact of the skin with asbestos is of minor importance.”
Direct contact with the skin could cause “painful warts formed around the asbestos needles,” but
a far more serious threat was pulmonary lesions, i.e., asbestosis, “resulting from a prolonged
occupational inhalation of asbestos dust and fibrils.” Worse still, there were troubling signs that
the pulmonary lesions could turn into cancer.
¶ 70 Because “[a]sbestosis carcinoma of the lung [was] not included in any group of
occupational tumors recognized by any country,” and because “several of the states with many
large asbestos plants [did] not include asbestosis among compensatory occupational hazards,”
and because “the evidence presented [was] sufficiently serious,” Hueper called for an “extensive
clinical, statistical, and experimental investigation of the incidence and causative interrelation of
asbestosis and pulmonary carcinoma.” In the meantime, he recommended that “measures *** be
taken to eliminate or reduce the existing hazard caused by the inhalation of asbestos dust,” such
as setting up a “closed production system, whenever possible”; misting the air to suppress the
asbestos dust; establishing “an extensive and efficient exhaust ventilation”; “the wearing of
respirators by workers engaged in dusty operations”; and “mechanization of operations *** to
reduce the number of workers exposed.” He reiterated that “[t]he dust hazard [was] most
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pronounced in store rooms for raw material[;] in rooms in which the raw materials [were]
handled[;] and in spinning, weaving, mixing, and filling rooms.”
¶ 71 Plaintiff’s attorney asked Frank if, “[a]fter Hueper’s text, *** there were more
articles or texts that came out about asbestos and disease.” Frank answered:
“A. Hundreds, if not thousands of them, came out after that. ***
There was an epidemiological study from Dr. Doll in 1955 relating to lung
cancer and asbestos, and in 1960 Dr. Wagner in South Africa showed that not
only miners could get mesotheliomas but their family members could get it and
people living in the villages near the mines where the asbestos was mined could
get mesotheliomas. And so the other cancers have been looked at over the years.
***
Q. Of the diseases we’ve been talking about so far today, are you saying
by 1960, asbestosis, lung cancer, and mesothelioma were all recognized to be
caused by asbestos in some cases?
A. Absolutely.
Q. Mesothelioma was 1960, and—and the South African article, was that
the first one ever reported in the literature about—you said it was a rare tumor?
A. No. There was actually a paper by one of my teachers from Mount
Sinai, Dr. Rabin. In 1931 he reported on a mesothelioma. *** But he in no way
related it to asbestos.
The first relationship to asbestos was a report of a mesothelioma in
Germany in 1938. There was a plumber that was reported as having developed a
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mesothelioma from working with asbestos-containing plumbing materials in 1944
here in the United States.”
¶ 72 The foregoing cited testimony by Hensley and Frank (along with Hueper’s book,
referenced in Frank’s testimony) is indeed evidence that, in 1962 and 1963, “knowledge existed
in the industry of the dangerous propensity of” raw asbestos. See Woodill, 79 Ill. 2d at 35. Their
testimony, however, is not evidence that, in 1962 or 1963, “knowledge existed in the industry”
(id.) that defendant’s product—the Hobart 6010 welding rod—was harmful. That is a crucial
distinction. It must be “established that knowledge existed in the industry of the dangerous
propensity of the manufacturer’s product.” (Emphasis added.) Id. The manufacturer was
defendant, and defendant’s product was not asbestos but welding rods, in which asbestos was
encapsulated. The record appears to contain no evidence of contemporaneous knowledge in the
industry that welding rods with asbestos encapsulated in the flux were hazardous. See Gideon v.
Johns-Manville Sales Corp., 761 F.2d 1129, 1145 (5th Cir. 1985) (“The manufacturer is not
liable for failure to warn of dangers unforeseeable at the time it manufactured the product. [The
plaintiff] introduced no proof that [the defendant manufacturer] knew or should have known that
its asbestos-containing products could cause harm. Construed most favorably to [the plaintiff],
his evidence demonstrated only that [the defendant] knew that the inhalation of asbestos fibers in
certain concentrations might create a health hazard.”). Plaintiff’s own expert witness, Frank,
testified (or, more precisely, agreed): “The asbestos content of a product is not necessarily an
indication of its relative health risk. For many products, the fibers are tightly bound to the matrix
or encapsulated.”
¶ 73 Nor, in 1942, did Hueper opine that asbestos-containing products were dangerous
per se to consumers. If he thought that such products were dangerous per se in their finished
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state, he surely would not have recommended that ameliorative measures be taken for workers in
factories so that the manufacture of asbestos-containing products could, with more safety,
continue. Plaintiff cites no evidence justifying the conclusion that defendant knew, or should
have known, in 1962 or 1963, that merely stepping on its welding rods, dropping them, inserting
them into a Stinger, or jostling them around in a box or bucket would release asbestos fibers
from their encapsulation in the flux.
¶ 74 In sum, the existence of a duty is an essential element of plaintiff’s cause of
action, and, in 1962 and 1963, defendant could not have owed plaintiff a duty to warn plaintiff of
a hazard that, at that time, was unknown to the industry to which defendant belonged, namely,
the ability of its welding rods to release encapsulated asbestos fibers if the welding rods were
simply rubbed together or stepped on. See Holmes, 2011 IL App (4th) 100462, ¶ 24. The record
appears to contain no evidence of such contemporaneous knowledge in the industry. If the record
contained conflicting evidence on contemporaneous knowledge, cases suggest that a duty to
warn would be a question of fact (see Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1035
(1994); Kokoyachuk, 172 Ill. App. 3d at 439), but the record contains no evidence at all of
contemporaneous knowledge. The resulting lack of duty entitled defendant to a judgment
notwithstanding the verdict. See Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22
(“Where a plaintiff has obtained recovery against a defendant based on negligence, and if the
defendant did not owe the plaintiff a duty, then a judgment n.o.v. in favor of the defendant is
required.”).
¶ 75 D. The Lack of Any Evidence of Substantial Causation
¶ 76 Assuming, merely for the sake of argument, that industry knowledge, in the early
1960s, that raw asbestos was dangerous to breathe justifies imposing on defendant a
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contemporaneous duty to warn of the asbestos encapsulated in its welding rods, the record
appears to contain no evidence that the welding rods were “a material element and a substantial
factor in bringing *** about” plaintiff’s mesothelioma. See Thacker v. UNR Industries, Inc., 151
Ill. 2d 343, 354-55 (1992).
¶ 77 In Thacker, 151 Ill. 2d at 364, the supreme court “agree[d] with the appellate
court that[,] in order for the plaintiff to prevail on the causation issue[,] there must be some
evidence that the defendant’s asbestos was put to ‘frequent’ use in the Bloomington facility in
‘proximity’ to where the decedent ‘regularly’ worked.” It is important to keep in mind that, in
that passage in Thacker, the supreme court was discussing “the defendant’s asbestos” (emphasis
added) (id.)—that is, bags of “raw asbestos” (id. at 350)—not a finished product, such as
defendant’s welding rods, in which asbestos was encapsulated. Proving merely that plaintiff
came into frequent, close, and regular contact with welding rods manufactured by defendant
would not, on the logic of Thacker, prove substantial causation any more than proving he
routinely walked on floor tiles containing asbestos would prove substantial causation.
¶ 78 The supreme court stated in Thacker: “[T]he plaintiff here cannot meet her burden
of production unless and until she is able to point to sufficient evidence tending to show that
Manville asbestos was actually inhaled by the decedent.” Id. at 364. Likewise, plaintiff must
prove he actually inhaled respirable asbestos fibers from defendant’s welding rods—and that he
inhaled enough of the fibers that one could meaningfully say the welding rods were a
“substantial factor” in causing his mesothelioma (emphasis added) (see id. at 354-55). The
causal criteria of frequency, proximity, and regularity are calculated to insure that the
defendant’s contribution to the plaintiff’s loss was more than trivial (Nolan v. Weil-McLain, 233
Ill. 2d 416, 432 (2009)).
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¶ 79 Plaintiff argues he met the criteria of frequency, proximity, and regularity in
Thacker. He claims the following facts are undisputed:
“[Plaintiff] worked for eight months at Portable Elevator. [Citation.] Stick welders
there used [defendant’s] asbestos-containing 6010 rods. [Citation.] [Plaintiff’s]
workstation was below a grated mezzanine where the welders worked. [Citation.]
He frequently walked past and sat next to the welders while they worked.
[Citation.] The welders did not keep a clean work area. [Defendant’s] asbestos
welding rods littered the ground[,] where [plaintiff] and others stepped on them.
[Citation.] They fell through the grates of the mezzanine into [plaintiff’s] work
area. Portable Elevator did not have any dust control measures. [Citation.]
Nothing stopped the asbestos dust generated on the mezzanine from drifting into
and circulating throughout [plaintiff’s] work area. [Citation.] [Plaintiff] was
exposed continuously to asbestos dust from [defendant’s] welding rods for almost
eight months.”
¶ 80 The cited pages of the record do not always substantiate the factual
representations plaintiff makes in that quoted passage. Plaintiff represents that his “workstation
was below a grated mezzanine where the welders worked.” It is true that, according to plaintiff’s
testimony, the welders worked on the third floor and plaintiff worked on the second floor.
Plaintiff’s attorney asked him, however:
“Q. When you were down on two and you were working and there was
a—were you working underneath where there was a grated floor?
A. I wasn’t directly under it. It was off to the side for—where we had our
stand. Could just look right up and see it.”
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¶ 81 Plaintiff also represents that the welding rods “fell through the grates of the
mezzanine into [plaintiff’s] work area.” There is no citation to the record for that sentence. We
see, in the transcript, where plaintiff testified that the “stubs from the arc welders on the third
floor” fell through the grates of the mezzanine and onto the second floor. We do not see,
however, where he testified that the stubs fell into his work area. It is difficult to picture how
they could have done that, since, according to his testimony, his work area was “off to the side.”
¶ 82 Plaintiff also represents: “Nothing stopped the asbestos dust generated on the
mezzanine from drifting into and circulating throughout [plaintiff’s] work area. [Citations.]
[Plaintiff] was exposed continuously to asbestos dust from [defendant’s] welding rods for almost
eight months.” At the cited pages of the trial transcript, we see no reference to dust, let alone
asbestos dust. Granted, a few pages later in the transcript, plaintiff’s attorney asks plaintiff:
“Q. Okay. Was there anything that permitted whatever was in the air up
above where the welders were working or where those stubs were laying—you
mentioned some of the stubs got down. Anything that prevented that air from
coming—or if there was something in the air that was going to be settling out
from coming down to the second floor?
A. No.
Q. Was it that way throughout the time you were there?
A. Yes.
Q. Was Portable Elevator a clean place or a dirty place, Chuck?
A. I would classify it as a dirty place.”
Plaintiff never testified, however, that the dirt was asbestos dust, and we are aware of no
evidence that it was. He never testified to seeing clouds of dust in the workplace. Cf. Thacker,
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151 Ill. 2d at 351 (“Various *** employees, including the decedent, testified that dust [from the
sacks of raw asbestos] was continuously visible in the air of the plant when viewed in bright
light.”). It is true that, when ruling on a motion for judgment notwithstanding the verdict, a court
should look at the evidence in the light most favorable to the opposing party, but that does not
mean the court may fill the gaps in the opposing party’s case with speculation. Presbrey v.
Gillette Co., 105 Ill. App. 3d 1082, 1094 (1982) (“[C]onjecture, guesswork, or suspicion is
insufficient.”).
¶ 83 Once it is granted that defendant’s welding rods, when rubbed together or stepped
on, released respirable asbestos fibers, it would be a reasonable inference, rather than
speculation, that plaintiff breathed some of the fibers, given that the fibers are microscopic and
threadlike and, one might expect, would be wafted along on every draft of air (and here we are
looking at the evidence in the light most favorable to plaintiff, as we must do (see McClure v.
Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999))). But plaintiff had to prove he
inhaled enough asbestos fibers from the welding rods that the welding rods were “a material
element and a substantial factor in bringing *** about” his mesothelioma. Thacker, 151 Ill. 2d at
354-55. “Conduct is a material element and a substantial factor if, absent the conduct, the injury
would not have occurred.” Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010).
Plaintiff never presented any evidence that, but for the asbestos he breathed during his eight-
month employment at Portable Elevator, he would not have contracted mesothelioma from the
40 years he spent as a car mechanic working on asbestos-containing brake lines. He never
presented any evidence that the asbestos he breathed at Portable Elevator was more than
minimal. Defendant’s attorney asked Frank:
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“Q. [C]an you give me any kind of quantification levels, numbers of
fibers, or anything about [plaintiff] and any alleged exposure to welding rods?
A. No.”
For all that appears in the record, the amount of asbestos fibers released from defendant’s
welding rods by rubbing them together or stepping on them was no more than the amount one
would have encountered in a natural environment. Without any idea of the concentration of
airborne asbestos fibers the welding rods would have produced, it would be conjectural to say the
welding rods were a substantial factor in causing plaintiff’s mesothelioma. Therefore, we also
hold that the lack of any evidence of substantial causation likewise entitled defendant to a
judgment notwithstanding the verdict.
¶ 84 III. CONCLUSION
¶ 85 For the foregoing reasons, we reverse the trial court’s judgment.
¶ 86 Reversed.
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