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06/21/89 Jack Healy Et Al., v. Owens-Corning Fiberglas Et

June 21, 1989

JACK HEALY ET AL., PLAINTIFFS-APPELLANTS

v.

OWENS-CORNING FIBERGLAS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

543 N.E.2d 110, 187 Ill. App. 3d 182, 134 Ill. Dec. 827 1989.IL.938

Appeal from the Circuit Court of Cook County; the Hon. Dean M. Trafelet, Judge, presiding.

Rehearing Denied September 11, 1989.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and CERDA, J.,* concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

On October 24, 1983, plaintiffs John and Dolores Healy filed an action in the circuit court of Cook County in which they sought to recover damages for injuries sustained by John Healy while working with products containing asbestos and for loss of consortium. In their complaint, plaintiffs alleged that John Healy was employed by various Illinois companies to install and remove asbestos insulation and that he was exposed to asbestos products designed, processed, manufactured, sold and distributed by defendants. *fn1 On April 7, 1988, the circuit court entered an order granting summary judgment to defendants. The court found that John Healy's action was barred by the two-year personal injury statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13-202) and that Dolores Healy's action for consortium, being derivative of John Healy's action for personal injuries, was also barred.

Plaintiffs appeal from the order of the circuit court granting summary judgment to defendants and from an order of the court denying plaintiffs' motion for reconsideration. As grounds for reversal of the orders, plaintiffs argue that: (1) they filed their complaint less than six months after John Healy discovered that he was injured; (2) the balancing test enunciated in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, requires application of the discovery rule in asbestos litigation; (3) the circuit court's actions deprived plaintiffs of their right to a remedy for injuries suffered; (4) defendants' claim that John Healy does not suffer from asbestosis should estop them from asserting that plaintiffs should have known in 1978 that John Healy had asbestosis; and (5) the circuit court should have allowed plaintiffs and their daughter, Judy Healy Jennings, to testify at the hearing on the motion for reconsideration. For the reasons stated below, we reverse and remand.

FACTS

John Healy testified at his deposition that he was employed in the asbestos insulation industry on a part-time basis during the summer of 1946 and the summer of 1947. In January 1949, he began working in the industry on a full-time basis. His full-time work consisted of installation and removal of asbestos insulation. In 1973, he became aware of the hazards involved in working with products containing asbestos. He began wearing a face mask and protective clothing at work. In 1978, at the urging of his daughter, Judy Healy Jennings, *fn2 he had a chest X ray taken. His daughter explained to him that he should have an X ray taken every year because he worked with products containing asbestos. He had the X ray taken because he wanted to find out whether being an asbestos worker had in fact hurt his lungs. He was told that the X ray revealed an abnormality in his lungs and he considered the possibility that the abnormality was caused by his work with asbestos. However, he was not told by anyone that there was a connection between the abnormality and his occupation. In 1979 or early 1980, he had a second chest X ray taken at Christ Hospital. Again, the X ray revealed an abnormality in his lungs and he considered the possibility that the abnormality was caused by asbestos. *fn3 Again, he was not told by anyone that there was a connection between the abnormality in his lungs and his occupation. *fn4

John Healy testified that on November 14, 1981, he attended a union meeting on the hazards of asbestos. At the meeting, he was screened for asbestos-related diseases. He had a chest X ray taken and submitted to a blood test and a urine test. The results of these tests were communicated to him in a letter from Dr. Irving J. Selikoff dated January 28, 1982. In the letter, Dr. Selikoff informed him that there was some problem with the chest X ray "in that what appeared to be a significant amount of scarring was seen in the left chest." Dr. Selikoff also told him that the pulmonary function tests results mirrored the fact that there were chest changes. But the blood and urine tests showed nothing unusual. Dr. Selikoff asked him to send all previous chest X rays for comparison. John Healy testified that he was concerned that the scarring was caused by his work with asbestos. *fn5 He forwarded the previous chest X rays to Dr. Selikoff and received a letter from Dr. Selikoff dated August 22, 1983, in which Dr. Selikoff stated that he could not tell whether certain variations in the test results were "associated with any potentially deleterious health effects."

John Healy testified further that he suffers from high blood pressure. Otherwise, he enjoyed good health prior to 1983. In April of 1983, he developed a chronic cough. Dr. Frank J. Wall, Jr., his family physician, suggested that he consult Dr. Richard H. Earle, a pulmonologist. He was examined by Dr. Earle sometime before June 29, 1983. Dr. Earle told him that he had lost 35% of his breathing capacity and that he had asbestosis. Thereafter, he consulted Dr. Anderson of the Mayo Clinic for a second opinion. John Healy testified at the first session of his deposition that Dr. Anderson confirmed that he had asbestosis. However, at the second session of his deposition *fn6 he testified that he could not recall what Dr. Anderson had told him was the cause of his lung problems. Furthermore, in a letter to Dr. Wall dated June 30, 1983, Dr. Anderson indicated that he was not certain of the etiology of John Healy's lung disease, although the disease seemed consistent with asbestos exposure.

John Healy testified that he has been a member of the asbestos workers' union since 1952. He receives a journal which is published by the union. He glances through the journal to see the subject of the articles and he reads some of the articles. He recalled seeing some green sheets *fn7 which had been inserted in the journal but he did not recall reading the green sheets.

John Healy also testified that two of his co-workers died between 1977 and 1980 and he was told that they died ...


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