Find Legal Information

_______________________________________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

The trial court, during a jury trial, entered adirected verdict for defendant at the close of plaintiffs' case. Plaintiffs appeal. We reverse and remand.

Plaintiff, Antonio Caruso, developed mesothelioma as aresult of exposure to asbestos during his work at the City Water,Light and Power Plant (CWLP) in Springfield, Illinois. Plaintiffworked in CWLP's Dallman plant from 1950-52 and from 1955-93. OnOctober 20, 2000, plaintiff brought this action againstdefendant, M&O Insulation Company (M&O), and other defendants.

M&O is a company that installs and sells insulation. M&O was incorporated in 1972 by Jack McNamara and Richard O'Heir. O'Heir testified in his deposition that M&O had never doneinsulation work anywhere in the Springfield area. In anaffidavit dated January 11, 2002, O'Heir stated that "M&O hasnever performed any insulating work at the City Water, Light &Power Plant in Springfield, Illinois." Peter Castellarin, M&O'schief financial officer, testified in his deposition that M&O hadnot done work at CWLP or for the City of Springfield at any time. Castellarin began working for M&O in October 1976.

In a letter dated April 12, 2002, plaintiffs advisedM&O they had obtained records from CWLP that showed M&O had doneinsulation work at CWLP. Castellarin testified that upon hisreview of the documents, "a big lightbulb went off. As soon aswe saw [Dallman], we recognized it, went right back to the books,and did another search." Defendant's job books showed nineentries referencing "Dallman" in Springfield, Illinois. On May21, 2002, less than two weeks before trial, M&O supplemented itsprior discovery responses by admitting it had worked at CWLP andproviding documents showing installation jobs and sales to CWLPas early as April 1975.

Castellarin testified that M&O never purchased,installed, or resold asbestos-containing insulation material,that it just happened the company was started in 1972 after theuse of asbestos-containing materials were banned. Castellarinrecognized, however, that asbestos-containing insulation wassitting in suppliers' warehouses, and suppliers were selling itin 1972. O'Heir testified, "we were the luckiest guys in theworld when we started. We just happened to start at a time when[asbestos insulation] was banned and we knew what the story wasand we just never got involved in it, so it was never anythingthat came into practice." However, Melvin Corbeil, the formerpresident of Brand Industries, another defendant, testified thatasbestos-free products became available, "I'm going to saysomewhere around 1973 or 4." He then conceded it could have been1974-75, and on cross-examination admitted it could have been asearly as 1970. Finally, Corbeil stated, "I'm telling you thebest of my recollection was '73 to '74, you know, somewherearound that time."

O'Heir testified:

"[T]he word was on the street, it was all over

every place that there was a problem with the

asbestos and the products that we've been

using for years, and when we were starting

the company, we were starting fresh, we would

use nothing that contained asbestos. If the

boxes weren't marked, if the product wasn't

marked, we never touched it, and that was

every employee was told that, and it went on

right down the line."

Castellarin testified that M&O installed insulation

from April 1972 up through the present time. He testified thatM&O purchased thermal insulation from Illinois Insulation Companyand also directly from Owens-Corning. The products purchasedwere pipe covering and Kaylo block. Those products at one timecontained asbestos. Castellarin testified M&O had no recordsshowing what materials were used on jobs prior to 1995, that M&Ohad a policy of destroying records after seven years.

On June 3, 2002, the matter proceeded to trial onplaintiffs' negligence claims against M&O, Owens-Illinois, Inc.,and Industrial Health Foundation, all other defendants havingsettled with the plaintiffs or having been dismissed from thecase. On June 19, at the close of plaintiffs' case, the trialcourt directed a verdict in favor of each remaining defendant. As to M&O, the trial court stated, "the evidence just is notthere [as to M&O]. There has been no evidence that [M&O] didbuy, sell any asbestos." Plaintiffs appeal the trial court'sdecision to direct a verdict in M&O's favor and its decision todeny plaintiffs' motion for a new trial. We review de novo thegrant of a directed verdict. Evans v. Shannon, 201 Ill. 2d 424,427, 776 N.E.2d 1184, 1186 (2002); City of Mattoon v. Mentzer,282 Ill. App. 3d 628, 633, 668 N.E.2d 601, 604 (1996).

In a jury case, plaintiff must present at least someevidence on every element essential to his cause of action, andif he fails to do so, a directed verdict is appropriate. Gillockv. City of Springfield, 268 Ill. App. 3d 455, 458, 644 N.E.2d831, 834 (1994). Even if the plaintiff produces some evidence,however, that evidence may lose its significance when viewed inthe context of all of the evidence. Pedrick v. Peoria & EasternR.R. Co., 37 Ill. 2d 494, 504-05, 229 N.E.2d 504, 510 (1967). Where there is evidence on both sides, a motion for directedverdict may still be granted, but only where all the evidenceviewed in a light most favorable to the opponent sooverwhelmingly favors the movant that no contrary verdict canever stand. Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.

A directed verdict is improper where "there is anyevidence, together with reasonable inferences to be drawntherefrom, demonstrating a substantial factual dispute, or wherethe assessment of credibility of the witnesses or thedetermination regarding conflicting evidence is decisive to theoutcome." Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d508, 512, (1992); cf. Kokinis v. Kotrich, 81 Ill. 2d 151, 155,407 N.E.2d 43, 45 (1980) (procedure in a nonjury trial). Inreviewing the evidence, a trial court cannot ignorecircumstantial evidence or reasonable inferences of negligencethat can be drawn from circumstantial evidence. Grewe v. WestWashington County Unit District No. 10, 303 Ill. App. 3d 299,303, 707 N.E.2d 739, 742 (1999). The use of circumstantialevidence is not limited to those instances in which thecircumstances support only one logical conclusion. Circumstantial evidence will suffice whenever an inference mayreasonably be drawn therefrom, and the facts established by suchinferences are considered when an issue is decided as a matter oflaw or a verdict is directed. Mort v. Walker, 98 Ill. 2d 391,396-97, 457 N.E.2d 18, 21 (1983).

"While circumstantial evidence may be used to showcausation, proof which relies upon mere conjecture or speculationis insufficient." Thacker v. UNR Industries, Inc., 151 Ill. 2d343, 354, 603 N.E.2d 449, 454 (1992). In Thacker, the supremecourt held that Manville Corporation was not entitled to ajudgment n.o.v., despite the relatively small amount of asbestosit supplied to the UNARCO plant, the large quantity of asbestossupplied from other sources, and decedent's testimony he did notwork with the Manville asbestos. Thacker, 151 Ill. 2d at 353,603 N.E.2d at 455. Plaintiff was able to escape directedverdict, or judgment n.o.v., by her "testimony, albeit slight,indicating that Manville asbestos necessarily generated dustwhich became part of dust which circulated throughout thefacility." Thacker, 151 Ill. 2d at 364-65, 603 N.E.2d at 459.

Plaintiff here presented some evidence from which areasonable jury could have concluded that M&O sold or installedproducts containing asbestos at the Dallman plant. Plaintiffpresented evidence that he worked at a plant where asbestos waspresent and that as a result he contracted mesothelioma. Plaintiff presented evidence that M&O supplied materials to thatplant, materials which were commonly known to contain asbestos. Again, a plaintiff may meet his or her burden of provingcausation with circumstantial evidence; Illinois law does notrequire unequivocal or unqualified evidence of causation. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63,90-91, 767 N.E.2d 314, 331 (2002).

The evidence in this case did not overwhelmingly favorM&O, particularly when that evidence is viewed in the light mostfavorable to plaintiffs. M&O was unable to present definitiveevidence, in the form of invoices or the like, that the materialsit supplied to the Dallman plant were asbestos-free. We areforced to rely on the fallible testimony of witnesses. Corbeil,a witness adverse to plaintiff, testified to the best of hisrecollection that asbestos-free insulation did not becomeavailable until 1973 or 1974. The burden of establishing thecontents of the products it supplied, facts peculiarly within theknowledge of M&O, should not be placed on plaintiff. Snyder v.Ambrose, 266 Ill. App. 3d 163, 166, 639 N.E.2d 639, 640-41(1994). The mere denial that M&O used asbestos is notcontrolling. Positive direct testimony may be contradicted anddiscredited by adverse testimony, circumstantial evidence,discrepancies, omissions, or the inherent improbability of thetestimony itself. Baker v. Hutson, 333 Ill. App. 3d 486, 493,775 N.E.2d 631, 637 (2002).

Credibility issues are certainly present in this case. The fact that M&O claimed, until two weeks before trial, that ithad never performed any insulating work for CWLP is significant. The jury would not have been required to accept M&O's explanationof innocent mistake. The jury could have concluded that M&O wasengaging in intentional deception and that its statementsregarding asbestos were also deceptions. At the very least thejury could have concluded that M&O's recollections, both as towhere it worked and what products it dealt with, were simplyinaccurate and entitled to little weight.

It is not correct that asbestos had been "banned" in1972. An OSHA (Occupational Safety and Health Administration)standard, effective July 7, 1972, merely limited exposure toasbestos fibers, and required a warning on asbestos products that"breathing asbestos dust may cause serious bodily harm." ACandS,Inc. v. Godwin, 340 Md. 334, 366 n.9, 667 A.2d 116, 131 n.9(1995). That case noted "the Secretary of Labor's recognition in1972 that, with proper precautions, asbestos would not be ahealth hazard." ACandS, 340 Md. at 366, 667 A.2d at 131. According to the Secretary, "'[t]he dispute is as to thedetermination of a specific level below which exposure is safe.'" ACandS, 340 Md. at 366, 667 A.2d at 131. Owens-Corning did notstop manufacturing asbestos-containing Kaylo until 1972. McClurev. Owens-Corning Fiberglas Corp., 188 Ill. 2d 102, 116, 720N.E.2d 242, 249 (1999). Asbestos-free Kaylo was certainly notavailable in 1970. Even after the manufacture of asbestos-freeKaylo began, it must have taken a period of time for thoseproducts to reach insulation companies.

Because plaintiff presented some evidence that M&O soldproducts containing asbestos, and because the assessment ofcredibility of the witnesses is decisive in this case, it waserror to direct a verdict. Plaintiff further asks that we remandfor a new trial on damages only, as a sanction against M&O forconcealment of evidence. 166 Ill. 2d R. 219(c)(iii). However,we will leave the question of a Rule 219 violation to theconsideration of the trial court on remand. In light of ourruling, we need not address M&O's cross-appeal seeking sanctionsunder Rule 137. 155 Ill. 2d R. 137.

Reversed and remanded.

KNECHT, P.J., concurs.

McCULLOUGH, J., dissents.

JUSTICE McCULLOUGH, dissenting:

I respectfully disagree with the determination by themajority that because there was "some evidence that M&O soldproducts containing asbestos, and because the assessment ofcredibility of the witnesses is decisive in this case, it waserror to direct a verdict." Slip op. at 8.

The plaintiff has the burden of producing evidencesufficient to establish each element of his or her claim. Thacker, 151 Ill. 2d at 354, 603 N.E.2d at 454. This burden ofproduction is met with regard to a given element of proof whenthere is some evidence which, when viewed most favorably to theplaintiff's position, would allow a reasonable trier of fact toconclude the element to be proved. Thacker, 151 Ill. 2d at 354,603 N.E.2d at 454. While circumstantial evidence may be used toshow causation, proof that relies upon mere conjecture orspeculation is not sufficient. Thacker, 151 Ill. 2d at 354, 603N.E.2d at 454. If the plaintiff fails to meet the burden ofproduction with regard to a necessary element of the case, courtsrightfully grant directed verdicts or enter judgment n.o.v. Thacker, 151 Ill. 2d at 354, 603 N.E.2d at 454-55.

The majority bases its decision on the followingfinding:

"Plaintiff here presented some evidencefrom which a reasonable jury could haveconcluded that M&O sold or installed productscontaining asbestos at the Dallman plant. Plaintiff presented evidence that he workedat a plant where asbestos was present andthat as a result he contracted mesothelioma. Plaintiff presented evidence that M&Osupplied materials to that plant, materialswhich were commonly known to containasbestos." Slip op. at 6.

Here, plaintiffs argued "the insulation M&O used inthe early to mid-1970s contained asbestos." In support of theirargument, plaintiffs stated: "Corbeil *** testified 'asbestos-free' products did not become available to the insulationindustry until 1974 or 1975." The record shows Corbeil believed"asbestos-free products" became available "around 1973 or 4." Upon further inquiry, Corbeil acknowledged they could also havebecome available in 1970, or 1974, or 1975. Corbeil admitted thedates were approximations, noting, "it's a long time ago." Therecord showed defendant did not supply materials to Dallman until1975 and did not begin work at the site until 1977.

Plaintiffs failed to provide "some evidence" that M&Osold products containing asbestos to the Dallman plant inSpringfield, Illinois. Corbeil's testimony as to when asbestos-free products became available was speculative and thus notsufficient.

Further, Richard O'Heir did not form M&O until 1972 andhe testified M&O did not use asbestos-containing materials. Cf.Johnson v. Owens-Corning Fiberglas Corp., 313 Ill. App. 3d 230,233, 729 N.E.2d 883, 885 (2000) (all asbestos removed from Kayloin 1972); McClure, 188 Ill. 2d at 116, 720 N.E.2d at 249 (after1972, Owens-Corning did not manufacture asbestos-containingKaylo); Kochan v. Owens-Corning Fiberglas Corp., 242 Ill. App. 3d781, 786, 610 N.E.2d 683, 686 (1993) (Owens-Corning ceased makingKaylo in 1972).

Plaintiffs must present evidence that defendant usedmaterials containing asbestos in its product and that thatproduct was used by defendant in CWLP's Dallman plant. Plaintiffs failed to meet their burden with regard to thenecessary elements of the case, and the trial court rightfullygranted a directed verdict.

The trial court's decision should be affirmed.