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07/06/89 Estate of James O. v. W.R. Grace Company Et Al.

July 6, 1989






541 N.E.2d 805, 185 Ill. App. 3d 523, 133 Ill. Dec. 594 1989.IL.1076

Appeal from the Circuit Court of Tazewell County; the Hon. Bruce W. Black, Judge, presiding.


JUSTICE SCOTT delivered the opinion of the court. HEIPLE and BARRY, JJ., concur.


Plaintiff-appellant, the estate of James O. Henderson, by Susan K. Henderson, executrix (Plaintiff), pursuant to Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)) appeals from a decision and judgments on defendants' motions for summary judgment dated July 7, 1988, wherein the trial court granted defendants-appellees', W. R. Grace Company, United States Gypsum Company and Owens-Corning Fiberglass Corporation (Defendants'), respective motions for summary judgment.

Plaintiff's second amended complaint filed August 27, 1985, alleged in six counts that Mr. Henderson died at the age of 41, leaving Mrs. Henderson and three adult children and one dependent minor child. The alleged cause of Mr. Henderson's death was exposure to harmful asbestos fibers throughout his 18 years of employment as a janitor at Edison School in the Pekin grade school district. Said exposure resulted in Mr. Henderson fatally suffering from a form of cancer known as "on-oat-cell carcinoma." The second amended complaint also alleged that each defendant knew or should have known that asbestos fibers were harmful to human health and carcinogenic, and each defendant was negligent in failing to warn of the harmful effects of its asbestos products and in failing to test its products prior to distribution.

Defendants responded, before answering Plaintiff's second amended complaint, by filing respective motions for summary judgment. After numerous continuances and opportunities to file affidavits, hearing was had on the motions on February 13, 1987, resulting in summary judgment in favor of all defendants being granted by order dated March 19, 1987. The primary reason for the trial court's dewas Plaintiff "failed to file depositions or affidavits showing a connection between asbestos and the descendent's [ sic ] death," and failing to do so, "[the] court must accept the uncontradicted fact that decedent's death was due to lung cancer caused by cigarette smoking."

Plaintiff, thereafter, filed a motion to vacate summary judgment on April 8, 1987, supported with affidavits and memorandum. Defendants duly responded and hearing was held on May 15, 1987, wherein the court granted Plaintiff's motion to vacate the order dated March 10, 1987. It was further ordered, however, that additional hearings on defendants' motions for summary judgment were to be held within 42 days, with the parties granted leave to file additional materials supporting their respective positions. It is clear that after the order of March 10, 1987, was vacated, the primary focus of defendants' motions concerned the issue of product identification.

Hearings on defendants' motions were next held on September 25, 1987, wherein the cause was continued to December 4, 1987, and plaintiff was granted leave to file any materials on or before November 25, 1987. The record also reflects that on September 25, 1987, W. R. Grace's attorney filed plaintiff's answers to defendants' consolidated interrogatories.

Plaintiff subsequently filed the affidavits of Donald D. Mulch II (Mulch), James R. Millette (Millette) and Darrell Becker (Becker). Mulch's affidavit stated that as part of his duties as director of operations of the Pekin Grade School Board of Education he was the custodian of various records pertaining to the construction of Edison School, and he had examined a copy of the bids and specifications for the construction of Edison School. He further stated the specifications required the use of "Zonolite" acoustical plaster or an approved equal and Zonolite is a brand name for a W. R. Grace Company product. He also indicated the school district requires all structures be constructed according to specifications unless a written agreement is entered to the contrary. Millette's affidavit stated that he is the director of services for McGrone Environmental Services, Inc., and that it is possible to determine the probable manufacturer of a sample of asbestos-containing building material if provided with the manufacturer's formula for the product. Becker's affidavit stated he had examined "Sweet's" catalog file of products for general building and renovation published by McGraw-Hill, which contained a listing for "Zonolite Masonry products." The catalog entry for Zonolite stated it was a registered trademark of W. R. Grace Company.

Hearing was finally held on defendants' motions on January 15, 1987, and taken under advisement. On July 7, 1988, the trial court again granted all defendants' motions for summary judgment on the basis that plaintiff "failed to show sufficient ability to present evidence on the issue of product identification . . . [and] . . . [in] the absence of such showing, no other facts are material and the defendants are entitled to judgment as a matter of law."

The only issue presented for review is whether the trial court erred in granting defendants' ...

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