By Pamela C. Maloney, J.D.
Challenges to expert testimony regarding substantial causation and the trial court’s refusal to issue non pattern jury instructions on causation and state of the art proposed by asbestos products manufacturer were rejected.
A jury’s verdict of $6,022,814.06, which had been reduced to $4,885,314.06 to reflect settlements amounts, was upheld by the Illinois Appellate Court over objections by an asbestos products manufacturer that one of the medical expert’s proffered on behalf of a deceased pipe fitter improperly had testified that the cumulative dose of the worker’s exposure to multiple asbestos products caused his injury. The appellate court also rejected the manufacturer’s claims that the trial court’s instructions relating to proximate cause and state of the art were inaccurate statements of the law (Daniels v. Arvinmeritor, Inc., June 8, 2020, Reyes, J.).
A pipe fitter, whose work primarily involved replacing and installing valves and gaskets that were packed with asbestos-containing insulation developed mesothelioma, allegedly as a result of exposure to asbestos dust during the course of his employment. The worker filed a complaint against numerous asbestos products manufacturers, asserting claim for negligence, willful and wanton conduct, civil conspiracy, negligent spoliation of evidence, willful and wanton spoliation of evidence, and loss of consortium against John Crane and others. Before the commencement of the trial, several of the manufacturers were dismissed, either because of general dismissals or through settlements.
Four of the eight defendants who had settled sought good-faith findings from the trial court: Trane US, Inc.; Weil-McLa in Company; Crane Co.; and CBS Corporation, f/k/a Westing house Electric Corp. The worker ultimately died from his illness, and his estate pursued the claims against the remaining defendant, John Crane, Inc., on his behalf. Following a trial, the jury found in favor of the worker and awarded damages in the amount of $6,022,814.06. The trial court directed a $1,137,500 setoff to reflect settlement amounts and entered judgment on the verdict in the amount of $4,885,314.06. John Crane’s motion for a new trial was denied and the company appealed.
Expert testimony. The manufacturer challenged the admissibility of cumulative causation testimony proffered by the estate’s anatomic pathology expert, arguing that the testimony—which asserted that each and every exposure to asbestos was a substantial contribution to the cumulative total—failed to meet the Illinois Supreme Court’s frequency, regularity, and proximity standard for causation. Rejecting this argument, the appellate court found that the expert had not presented a cumulative exposure theory. Instead, the expert’s testimony provided the background knowledge necessary for the jury’s understanding and interpretation of testimony presented by the estate’s industrial hygienist regarding the cause of the worker’s mesothelioma. Furthermore, the estate had not relied solely on the pathologist’s testimony to prove causation. In addition to the pathologist’s testimony on the nature of asbestos disease as a dose-response disease, the estate had offered testimony regarding the length of time the worker had been exposed to asbestos and the amount of asbestos to which he had been exposed. This testimony satisfied both the Illinois causation standard and that set by the U.S. Court of Appeals for the Seventh Circuit in a decision relied on by the manufacturer and which the appellate court found unpersuasive.
Substantial factor causation. The manufacturer also challenged the trial court’s refusal to issue the company’s proposed non pattern jury instruction on the substantial factor requirement of proximate cause in asbestos cases. Observing that none of the cases relied on by the manufacturer stood for the proposition that a jury in an asbestos case must be instructed on the substantial factor test, the appellate court explained that the state supreme court had established the frequency, regularity, and proximity test as the means by which an asbestos plaintiff could prove that an asbestos-containing product had been a substantial factor in causing the plaintiff’s injury. The patterned jury instruction given by the trial court accurately stated the law as it related to a case in which the evidence showed that the worker had been exposed to multiple asbestos-containing products, including those made by the named manufacturer.
The manufacturer further argued that the refusal to provide the non pattern instruction allowed the jury to find against it even if the worker’s exposures to its chrysotile products were not "material" or "substantial" as compared to his overwhelming exposures to products made of a mosite asbestos, which contained large volumes of friable insulation. The appellate court rejected this argument, agreeing with the estate’s contention that use of the phrase "substantial factor" in the non pattern instruction could be misconstrued by the jury as requiring a specific quantity of asbestos exposure and reliance on testimony that even seemingly insubstantial quantities could satisfy proximate cause, rather than focusing on the "frequency, regularity, and proximity" test.
The appellate court also held that the definition of "substantial factor" included in the proposed instruction misstated Illinois law in that it con flated the two methods by which the worker could prove causation in fact. Specifically, the proposed instruction included the traditional "but for" test as part of the substantial factor test, requiring proof that absent the manufacturer’s conduct, the injury would not have occurred. Thus, the manufacturer’s proposed instruction was properly excluded by the trial court, the appellate court concluded.
State of the art. Arguing that recent case law had established that in an asbestos case, the existence of a duty to warn depended on whether, at the time of the worker’s exposure, knowledge existed in the industry of the dangerous propensity of the manufacturer’s product, the manufacturer argued that the trial court erred in refusing to accept its non pattern instruction on the state of the art. The appellate court found the proposed instruction both misleading and confusing as it appeared to require the estate to prove that both the individual manufacturer as well as those in the asbestos products manufacturing industry knew of the dangerous nature of an individual manufacturer’s products. Under Illinois law, it is proper to impose a knowledge requirement in a strict tort liability case predicated on a failure to warn of danger inherent in the product and to require the plaintiff to demonstrate that the defendant did not warn of a known danger in its product. In this case, the estate had established that by 1970, the manufacturer was aware of the dangers of asbestos dust and that pipe fitters like the worker in this case manipulated the manufacturer’s encapsulated asbestos products in a manner that produced dust. Finding that what was known in the industry was merely secondary to what actually was known by the named manufacturer, the appellate court found that the trial court did not err in refusing to accept the manufacturer’s proposed non pattern instruction.
Jury verdict form. The appellate court also rejected that manufacturer’s argument that the trial court had abused its discretion when it failed to include on the jury verdict form four defendants that had settled before trial. According to the manufacturer, under the Joint Tort feasor Contribution Act, the jury was allowed to apportion liability among joint tort feasors in accordance with each tort feasor’s relative culpability, and the failure to include these defendants prevented the trial court from determining whether the settlements were within a reasonable range of the settling defendants’ fair shares of liability. The manufacturer had not cited any cases in which an Illinois court held that settling defendants in asbestos litigation must be included on the jury verdict form and the cases relied on by the manufacturer were inapposite.
Good-faith settlement findings. The manufacturer’s argument that the trial court’s approval of four good-faith settlements without knowing the amounts of those settlements or determining how those settlements would be allocated was an abuse of discretion also was rejected. According to the appellate court, the manufacturer was not arguing that the settlements were made in bad faith but, rather, that because the trial court could not consider the actual terms of the settlement agreements and their amounts, it did not have enough facts before it to render an informed decision on good faith. However, all the pleadings, motions, and depositions were before the trial court when it entered the good faith findings. The trial court was aware that the estate was proceeding to trial on its negligence count and sought damages in excess of $50,000.
In addition, the trial court was aware that the manufacturer would be asserting a sole proximate cause defense; specifically, that the insulation manufactured by other named defendants was the proximate cause of the worker’s mesothelioma. Furthermore, the manufacturer had not requested an evidentiary hearing on the issue of good faith, and even if it had, such a hearing was not required. Illinois case law is clear that settlements are not designed to benefit non-settling third parties and trial courts are not required to decide the merits of a tort case or rule on the relative liabilities of the parties before making a good-faith determination. Based on the record, the appellate court could not conclude that the trial court’s good-faith findings were clearly against logic, arbitrary, exceeded the bounds of reason, or ran contrary to recognized legal principles.
The case is No. 1-29-0170.
Attorneys: Klint L. Bruno (The Bruno Firm LLC) and Ethan Flint (Flint Law Firm LLC) for Sharon Daniels. Michael A. Pollard (Baker & McKenzie LLP) for ArvinMeritor, Inc., John Crane, Inc., CBS Corp. f/k/a Viacom, Inc. f/k/a Westinghouse Electric Corp., Crane Co., CSR, Ltd. a/k/a Consolidated Sugar and Refining and Flowserve Corp.
Companies: ArvinMeritor, Inc.; John Crane, Inc.; CBS Corp. f/k/a Viacom, Inc. f/k/a Westinghouse Electric Corp.; Crane Co.; CSR, Ltd. a/k/a Consolidated Sugar and Refining and Flowserve Corp.
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