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Johnson v. Owens-Corning Fiberglas Corp., No. 3-99-0144

3rd District, 12 May 2000

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Plaintiff, Venetta Kay Johnson, filed a complaint against numerous defendants alleging that her husband, Charles Johnson,died as the result of exposure to various products that contain asbestos. The trial court entered summary judgment in favorof all defendants. This court affirmed the judgment with respect to some defendants, but reversed with respect to others.Johnson v. Owens-Corning Fiberglass Corporation, 284 Ill. App. 3d 669, 672 N.E.2d 885 (1996). On remand, the trialcourt directed a verdict in favor of defendants Owens-Corning Fiberglas Corporation (OCF) and Sprinkmann SonsCorporation of Illinois (Sprinkmann). A jury returned a verdict in favor of defendant A.P. Green Industries, Inc. (APG). Onappeal, plaintiff contends, inter alia, that the trial court erred: (1) by directing a verdict in favor of OCF and Sprinkmann;and (2) by giving the jury certain special interrogatories requested by APG. For the reasons that follow, we reverse the trialcourt's judgment with respect to all three defendants and remand for further proceedings.

At the outset, we note that plaintiff raises other issues on appeal in addition to those already stated. However, due to thedisposition of the aforesaid claims of error, we decline to address these other issues as their resolution is unnecessary andthey are unlikely to arise again on remand.

Charles Johnson worked for Keystone Steel & Wire Company (Keystone) at its plant in Bartonville, Illinois, from 1955until 1991, when he was diagnosed with lung cancer. Johnson died in October 1991.

The Keystone plant is roughly one mile long and consists of a steel mill, a wire mill, and a mid-mill area that connects thesteel and wire mills. The wire mill is approximately one-half to three-quarters of a mile long. Until the early 1980s, Johnsonworked in the patenting department located on the wire-mill side of the plant. The patenting department is adjacent to thedrawing and galvanizing departments. From the early 1980s until 1991, Johnson worked in the nail mill which is also on thewire-mill side and adjacent to the galvanizing department. Doorways approximately 15 feet high and 20 feet wide separatethe various departments. There are overhead doors, but these are only rarely closed.

During Johnson's tenure, Keystone used various materials to insulate its pipes and furnaces. Among other materials,Keystone purchased Kaylo, an insulator manufactured by OCF and distributed by Sprinkmann. Kaylo was 85% calciumsilicate and 15% asbestos until 1972, when all asbestos was removed from the product. Kaylo's primary intended use wasexternal pipe insulation. Kaylo was a dry flaky material that emitted substantial amounts of dust when removed from itspackaging and anytime it was cut or rasped in order to fit around pipes.

Keystone also purchased Therm-O-Flake, an insulator manufactured by APG. Therm-O-Flake was a powdery material thathad to be mixed with water before application. It was 18% asbestos. Keystone's brick masons used Therm-O-Flake toinsulate the Keystone plant's furnaces.

At trial, David Schwartz, a physician, testified as an expert witness on behalf of plaintiff. Schwartz testified that asbestosfibers can remain airborne for as long as a month even in undisturbed air. Moreover, asbestos fibers can travel as far as amile from the point of release.

In addition, Schwartz opined that it is impossible to attribute the cause of any asbestos-related disease to any single asbestosfiber or any specific period of asbestos-fiber inhalation. Rather, with respect to causation, the only conclusion that can bedrawn is that every exposure to asbestos substantially increases the risk of developing an asbestos-related disease, includinglung cancer.

Harold Molchin, a Sprinkmann insulator, testified that he installed Kaylo while employed by Sprinkmann. Molchin recalledthat Kaylo emitted dust whenever it was cut or rasped. Molchin further testified that he installed insulation at Keystone onthree occasions: the first in the 1970s; the second at an unspecified time; and the third during the late 1980s. Molchin couldnot recall whether any of the installation jobs at Keystone involved Kaylo.

Wes Klein, a Sprinkmann truck driver, testified that he made "hundreds" of deliveries to Keystone between 1961 and 1981.Klein estimated that he delivered Kaylo on approximately one-third of these occasions. Klein recalled making deliveries tothe wire-mill, as well as the steel-mill, side of the Keystone plant.

Russ Wolstenholme, a Sprinkmann truck driver, testified that he made deliveries to Keystone between 1954 and 1990.Although the frequency of the deliveries varied, there were times that Wolstenholme would deliver materials to Keystone asfrequently as twice per week. Wolstenholme made deliveries to the wire-mill and steel-mill sides of the Keystone plant.Wolstenholme testified that he was "comfortable" in stating that Kaylo was among the products he delivered to Keystone.

Siegfried Schubert, a Keystone pipefitter, testified that he removed and installed pipe insulation at the Keystone plantbetween 1954 and 1974. Schubert testified that he replaced insulation on the wire-mill side "many times." In particular,Schubert remembered replacing insulation in the patenting department, the nail mill, the galvanizing department, and thedrawing department. Schubert estimated that he spent most of his time on the wire-mill side and in the mid-mill area of theplant. Schubert recalled seeing bags of Kaylo and reading labels that indicated Kaylo was 85% magnesium and 15%asbestos.

Schubert explained that, when replacing insulation, he usually cut the insulation on the ground in the immediate vicinity ofthe repair. Schubert also noted that insulation would often fall to the ground while he was replacing the insulation on themany overhead pipes at the Keystone plant.

Ellis Carlton, a Sprinkmann materials purchaser, testified that, in addition to selling insulation, Sprinkmann sometimesinstalled insulation for its customers. Carlton identified a group exhibit containing invoices showing that one Sprinkmanninstaller installed Kaylo at Keystone on at least five occasions in 1967, six occasions in 1969, and once in 1970. Carltonadmitted that there had been records of other installation jobs at Keystone, but these had been purged from Sprinkmann'sarchives in 1983. Carlton agreed that the materials listed in the surviving invoices were typical of the sort of materials usedat installation jobs at the Keystone plant.

At the close of plaintiff's case-in-chief, all defendants moved for directed verdict. The trial court directed a verdict in favorof OCF and Sprinkmann. The trial court denied APG's motion. The trial then proceeded with APG as the sole defendant.The jury returned a verdict in favor of APG.

I.

Plaintiff asks this court to reverse the trial court's order directing a verdict in favor of OCF and Sprinkmann. Specifically,plaintiff maintains that, contrary to the trial court's findings, the evidence presented in plaintiff's case-in-chief is such that arational trier of fact could have found that Charles Johnson had been exposed to Kaylo.

A motion for directed verdict should be granted when, viewing all the evidence in the light most favorable to thenonmovant, the evidence so overwhelmingly favors the movant that no contrary verdict based on that evidence could everstand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967). A trial court should only grant a motionfor directed verdict where there is no evidence demonstrating a substantial factual dispute or where the assessment of thecredibility of witnesses or the determination of conflicting evidence is not decisive to the outcome. Maple v. Gustafson, 151Ill. 2d 445, 603 N.E.2d 508 (1992). In recognition that trial courts are not to weigh evidence, resolve conflicts in evidence,or assess the credibility of witnesses, a ruling on a motion for directed verdict is subject to de novo review. Dunlap v. AlcuinMontessori School, 298 Ill. App. 3d 329, 698 N.E.2d 574 (1998).

In a cause of action for negligence or strict products liability arising from alleged exposure to asbestos, a plaintiff mustprove that the defendant's asbestos was the cause in fact of the injury. Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 603N.E.2d 449 (1992). To prove causation in fact, the plaintiff must prove medical causation, i.e., that exposure to asbestoscaused the injury, and that it was the defendant's asbestos-containing product which caused the injury. Thacker, 151 Ill. 2d343, 603 N.E.2d 449. With respect to the directed verdicts in the case at bar, only the latter burden is at issue.

To meet this burden, a plaintiff must show that the injured party was exposed to the defendant's asbestos through proof thathe regularly worked in an area where the defendant's asbestos was frequently used and the injured party worked in sufficientproximity to this area so as to come into contact with the defendant's product. Thacker, 151 Ill. 2d 343, 603 N.E.2d 449.This test is often referred to as the "frequency, regularity and proximity" or "substantial-factor" test.

In the case sub judice, plaintiff presented evidence that Kaylo emitted dust when installed to insulate pipes. Plaintiff showedthat Sprinkmann delivered Kaylo to Keystone, and the wire-mill side in particular, on numerous occasions from the late1950s until the early 1970s. Siegfried Schubert, a Keystone pipefitter, testified he recalled seeing bags of Kaylo atKeystone. Schubert also recounted installing insulation with the same characteristics as Kaylo on the wire-mill side of theKeystone plant. Plaintiff presented expert testimony that asbestos fibers may remain airborne for as much as a month, evenin undisturbed air, and may travel as far as a mile from their source. See Wehmeier v. UNR Industries, Inc., 213 Ill. App. 3d6, 572 N.E.2d 320 (1991) (fiber-drift evidence may satisfy proximity prong of frequency, regularity, and proximity test).Taken together and in the light most favorable to plaintiff, this evidence is sufficient to allow a rational trier of fact to findthat Charles Johnson's lung cancer was caused by exposure to Kaylo. Accordingly, we must reverse the trial court'sjudgment directing a verdict in favor of defendants OCF and Sprinkmann and remand plaintiff's cause for a new trial.

II.

Plaintiff also contends that the trial court erred by giving the jury two special interrogatories requested by APG. In APG'sInstruction No. 25B, the jury was asked the following question: