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03/10/87 Donald Lipke, v. Celotex Corporation Et Al.

March 10, 1987

DONALD LIPKE, PLAINTIFF-APPELLEE

v.

CELOTEX CORPORATION ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

505 N.E.2d 1213, 153 Ill. App. 3d 498, 106 Ill. Dec. 422 1987.IL.272

Appeal from the Circuit Court of Cook County; the Hon. William R. Quinlan, Judge, presiding.

APPELLATE Judges:

Justice Bilandic delivered the opinion of the court. Scariano, P.J., and Stamos, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, an asbestos worker, filed suit against 27 asbestos manufacturers to recover damages for personal injuries sustained as a result of continued exposure to defendants' asbestos products. Extensive discovery was conducted by all of the defendants. Plaintiff submitted to a discovery deposition over a six-day period, during which counsel for all of the defendants were present and had an opportunity to ask questions. All of the defendants, except Forty-Eight Insulations, Inc., arrived at an amicable settlement with the plaintiff prior to the commencement of this trial. This is the first asbestos case that was tried to verdict in Cook County. The jury awarded plaintiff $629,000 in compensatory damages and $175,000 in punitive damages. After the verdict and before Disposition of its post-trial motion, defendant filed for protection under chapter 11 of the Bankruptcy Act (11 U.S.C. sec. 1101 et seq. (1982); Bankruptcy Case 85 B 05061). After denial of its post-trial motion, defendant filed this timely appeal.

Plaintiff's complaint is based upon the legal theories of negligence, wilful and wanton misconduct, and products liability. He seeks compensatory and punitive damages. The first line of defense was that the plaintiff did not have asbestosis but suffered from bronchitis or emphysema which was caused by plaintiff's habitual cigarette smoking. Defendant's fall-back position was that even if plaintiff had asbestosis, there was no evidence that he was exposed to defendant's products, and, therefore, defendant was not liable. Defendant also contends that if plaintiff was entitled to anything, it would only be compensatory damages for negligence and that punitive damages were not warranted under the facts of this case.

Plaintiff was employed as an insulator in the asbestos industry from about 1954 through 1980. As a pipe coverer, he insulated pipes, boilers, and tanks in refineries, steel mills, chemical plants, schools, and commercial buildings. He identified certain asbestos products manufactured by defendant as some of the products he used in the course of his work. He never saw a label on any of defendant's products which warned users regarding health hazards.

Defendant manufactured products containing asbestos from 1923 until 1970. It never employed more than 220 people. Defendant never had a formal research or health department. However, defendant was a charter member of an industry group known as the National Insulation Manufacturer's Association .

During trial, plaintiff's attorney read into the record sections of minutes taken at the NIMA meetings in 1958 and 1964. The defendant stipulated to the authenticity of these minutes. The minutes showed that two of defendant's representatives attended the 1958 meeting and that defendant was a "charter member of NIMA." They also showed that one of defendant's directors in attendance in 1964 was Ike Keith. At the 1964 meeting, Johns-Manville Sales Corporation reported that it was printing health and use warnings on its packages of asbestos products. The wording of these warnings cautioned the prospective user that "inhalation of asbestos in excessive quantities over long periods of time" could be harmful and urged the user to avoid breathing asbestos dust and to wear a respirator in the event of inadequate ventilation.

Plaintiff presented extensive evidence through his experts that literature regarding the dangers of asbestos was readily available to both physicians and members of the industry in the 1920's and thereafter. Defendant, as a charter member of NIMA, could have had access to this literature at any time.

Defendant received a letter from Dr. Irving Selikoff in the fall of 1969, advising the company that asbestos could be hazardous. Defendant also had Discussions with the doctor regarding the exact nature of the hazard. Defendant's president testified that in July of 1970 it placed warnings on the bags of asbestos products and in December of 1970 it removed asbestos from its products. Plaintiff's evidence showed that the warnings did not mention the words "asbestosis" or "cancer" and did not indicate that a person who inhaled dust from the products could suffer any physical harm. Plaintiff also presented evidence that substitutes for asbestos were available so that defendant could have removed the asbestos sooner.

Plaintiff's condition was diagnosed as squamous cell cancer, which was caused by his continued exposure to asbestos. Portions of plaintiff's lungs were surgically removed. Asbestos bodies were found in the removed sections. Plaintiff admitted smoking 1 1/2 packs of cigarettes per day for 35 years, up to the date of his surgery. Squamous cell cancer is a common tumor associated with asbestosis and cigarette smoking. Defendant's medical expert testified that plaintiff did not have asbestosis, but that plaintiff suffered from bronchitis and emphysema. He concluded that the primary cause of plaintiff's medical problem was his history of cigarette smoking.

In plaintiff's answers to the original interrogatories, dated January 7, 1981, plaintiff listed "Forty-Eight Insulations" as a product to which he was exposed. Although there is no product specifically called "Forty-Eight Insulation," plaintiff testified that on the job, the product was referred to as "Webers" or "48" rather than its complete name. In plaintiff's answers to defendant's specific product interrogatories, dated January 26, 1985, plaintiff identified defendant's products as: "Weber's Forty-Eight Cement," "Weber's Super Forty-Eight Cement," "Super Forty-Eight Cement," "Quick-Set Cement," and "Blankets."

After filing answers to the original written interrogatories in 1981, plaintiff's discovery deposition was taken by all of the 27 original defendants over a period of six days. Although defendant was represented at the deposition, defendant did not cause the plaintiff to be questioned regarding the plaintiff's use of defendant's products. Other defense counsel questioned plaintiff extensively on the use of asbestos products of their respective clients. Defendant claims that when plaintiff testified about the use of its products at trial, he actually changed his testimony and that the trial court should not have permitted this to happen. Defendant argues that the theory of its case was that plaintiff was never exposed to its products. Permitting plaintiff to "change his testimony" erroneously frustrated this defense.

Defendant also contends that this and other evidentiary rulings by the trial court require a reversal or, at least, a new trial. Defendant further contends that the trial court erroneously submitted the issue of punitive damages to the ...


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