By Pamela C. Maloney, J.D.
Failure to prove that a window glazier’s use of asbestos-containing tape and caulk had resulted in frequent, regular, and proximate contact with respirable asbestos fibers led to reversal of a jury verdict for his estate.
Although the estate of a window glazier who died from mesothelioma proved that asbestos-containing caulk and tape used during the course of his work had released asbestos fibers, the estate failed to prove that the decedent had more than de minimus, casual, or minimum contact with those fibers, an Illinois appellate panel held, reversing the trial court’s denial of the manufacturer’s motion for judgment notwithstanding the verdict and overturning the jury’s award of $3,272,083.31 in damages (Krumwiede v. Tremco, Inc., January 21, 2020, Harris, T.).
A window glazier who had used asbestos-containing caulk and tape manufactured by Tremco, Inc., every day over the course of his nearly 40 years of employment installing glass into wood or aluminum frames developed mesothelioma, which ultimately lead to his death. His estate and widow filed wrongful death, survival, and loss of consortium claims against Tremco, alleging that the manufacturer, which knew or should have known that exposure to asbestos would cause pulmonary fibrosis and malignancies, was negligent in failing to warn about the risks associated with its asbestos-containing products and failed to provide instructions as to safe methods for handing and processing those products. Following a trial, the court denied the manufacturer’s motion for judgment notwithstanding the verdict and the jury entered a modified judgment of $3,272,083.31, which reflected setoffs for amounts received from settlements with other manufactures. Arguing that the estate had failed to prove causation, the manufacturer appealed.
Release of fibers. The manufacturer initially claimed that the estate had presented no competent or admissible evidence that the products at issue had released respirable asbestos fibers. Standing alone, the testimony of the estate’s medical expert to the effect that there was not a single asbestos-containing product that did not have the capacity to release fibers when worked with was unsubstantiated and speculative. However, the court found that this testimony was supported by the estate’s expert 40 years of experience, during which he reviewed cases involving other tape and caulking products used for installing window and doors.
In addition, the manufacturer’s own expert had testified that although his testing and analysis of the products did not detect respirable asbestos fibers, he could not rule out the possibility of fiber release from those products. Finally, under Illinois’ "missing witness" or "missing evidence" jury instruction, the manufacturer’s failure to have produced the results of testing performed on its products by an independent agency supported an adverse inference that the results were detrimental to the manufacturer’s case. Thus, a review of the record led the court to find that the evidence was sufficient to support the jury’s determination that the manufacturer’s products were capable of releasing asbestos fibers.
Substantial causation. The manufacturer’s second argument in support of its motion challenged the sufficiency of the estate’s evidence with respect to the element of substantial factor causation. Specifically, the manufacturer had argued that there was no evidence in the record showing when, and under what circumstances, the manufacturer’s products released respirable asbestos fibers, whether circumstances causing the release of respirable asbestos fibers were of the type that would have been regularly encountered by decedent when using those products, or whether the release of fibers from the products was anything more than minimal.
Reviewing the evidence, the court concluded that the record showed only that the decedent had come into frequent, regular, and proximate contact with the manufacturer’s products and that the products were capable of releasing asbestos fibers. However, there was no evidence to establish that the activities engaged in by the decedent while working as a window glazier using those products caused the release of respirable asbestos fibers or that the products released asbestos fibers in such amounts that the decedent had more than de minimus, casual, or minimum contact with asbestos from those products. Thus, the trial court’s judgment was reversed.
Any exposure theory. Finally, the appellate court agreed that the estate’s expert had not relied on the "any exposure" theory of causation, which was not acceptable under Illinois law. Nevertheless, the expert’s cumulative exposure testimony was insufficient to meet Illinois’ substantial factor test. Before concluding that exposure to the manufacturer’s products alone was sufficient to have caused the decedent’s mesothelioma, the estate’s expert had provided testimony that was specific to the decedent’s history of exposure to asbestos from the manufacturer’s products, as well as the decedent’s history of exposure from other sources, thus testifying to the totality of the decedent’s exposure. However, the expert’s cumulative exposure theory was not supported by evidence showing that the decedent’s exposure to respirable asbestos fibers from the manufacturer’s products occurred on a frequent, regular, and proximate basis, as required by Illinois law, and was the cause in fact of the decedent’s illness. Thus, the manufacturer was entitled to judgment notwithstanding the verdict.
Packaging contamination. The appellate court also rejected the estate’s argument that the jury reasonably could have concluded that the decedent had been exposed to raw asbestos fibers from the boxes in which the manufacturer’s products had been packaged at its manufacturing facilities. According to the record, one of the manufacturer’s facilities that produced roofing materials was found to have high level of asbestos fibers in its dust counts. But roofing materials were not the products at issue in this case and, as such, the high levels of asbestos fibers in air samples from the facility did not constitute evidence that the packaging of tape and caulk was contaminated during the during manufacturing processes at other facilities.
The case is No. 4-18-0434.
Attorneys: Chip Corwin and James Wylder (Wylder Corwin Kelly, LLP) for Jeff Krumwiede, Special Administrator of the Estate of Willard Krumwiede. Brad A. Elward, Christopher P. Larson and Cathy A. Molchin (Heyl, Royster, Voelker & Allen) for Tremco, Inc.
Companies: Tremco, Inc.
MainStory: TopStory CausationNews EvidentiaryNews AsbestosNews IllinoisNews
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