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11/01/89 Norma Naden, Special Adm'r v. the Celotex Corporation Et

November 1, 1989

NORMA NADEN, SPECIAL ADM'R OF THE ESTATE OF JAY NADEN, DECEASED, PLAINTIFF-APPELLANT

v.

THE CELOTEX CORPORATION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

546 N.E.2d 766, 190 Ill. App. 3d 410, 137 Ill. Dec. 821 1989.IL.1726

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

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

Plaintiff Norma Naden appeals from an order of the circuit court granting summary judgment in favor of defendants Celotex Corporation (Celotex), Flintkote Company (Flintkote), Keene Corporation, and Eagle-Picher Industries, Inc. . Prior to oral arguments before this court, plaintiff and Keene Corporation entered into a settlement agreement. The case continues as to the other defendants.

On November 2, 1982, Jay Naden filed suit against a number of asbestos manufacturers alleging that between 1952 and 1976, he was employed at Commonwealth Edison's Waukegan Powerhouse, that during that time he was exposed to defendants' asbestos products, and that as a result of his exposure to their products, he had developed an asbestos-caused disease and had suffered permanent injuries and disabilities. In December 1982, Jay Naden died of mesothelioma and his widow, Norma Naden, was substituted as plaintiff in this action. In the following months, some defendants entered into settlements with plaintiff, others were voluntarily dismissed, and some were granted summary judgments.

In April 1987, the remaining defendants filed a motion for summary judgment alleging that plaintiff had been unable to adduce any evidence that defendants' products had been present at the Waukegan Powerhouse. Defendants' motion was based on plaintiff's deposition testimony that she had no knowledge of the products to which decedent was exposed and on statements by six of decedent's co-workers, most of whom had worked with decedent for 20 to 25 years. The co-workers stated that they and decedent had worked in the Waukegan Powerhouse machine shop, where they used asbestos products in insulating pipes and repairing turbines. The co-workers stated that among the asbestos products used were those manufactured by Johns-Manville Sales Corporation and Garlock, Inc. None of the co-workers identified defendants' products as among those used.

In her reply to defendants' motion, filed May 29, 1987, plaintiff pointed out that E-P and Flintkote had not responded to her interrogatories, and while Celotex had responded, it had not answered interrogatory No. 9, concerning sales of asbestos-containing products to the Waukegan Powerhouse during the years plaintiff's decedent was employed there. Plaintiff argued that summary judgment would be premature if granted before the interrogatories were fully answered.

On June 24, Celotex filed a response to interrogatory No. 9, on June 10, Flintkote filed answers to plaintiff's interrogatories, and on July 17, E-P filed its answers. On February 16, 1988, plaintiff filed a second response to defendants' motion in which she alleged that in responding to her interrogatories, defendants had failed to disclose various statements relating to decedent's exposure to their products which defendants had obtained in the course of discovery in other asbestos cases. Plaintiff again asserted that summary judgment should not be granted until defendants fully complied with her discovery requests. Attached to plaintiff's response were answers to interrogatories obtained by plaintiff's attorney in 1982 in the course of his representation of Thomas Wessels, the plaintiff in an asbestos action filed against Johns-Manville and others.

On March 10, 1988, at the hearing on defendants' motion, plaintiff argued that Wessels' responses to interrogatories indicated that defendants' products were used in the Waukegan Powerhouse during the period decedent was employed there. In a written order granting defendants' motion, the trial court found that there was insufficient evidence that plaintiff's decedent was exposed to defendants' products.

Plaintiff appeals the trial court's decision on the ground that there existed a question of material fact concerning decedent's exposure to defendants' products. Plaintiff also argues that her inability to obtain the discovery requested from defendants prevented her from obtaining a full and fair hearing on the motion for summary judgment and that the trial court erred in failing to continue the hearing on defendants' motion until defendants had responded adequately to her discovery requests.

It is well settled that a trial court's decisions in determining the scope of discovery are a matter of the court's discretion and will not be reversed absent an abuse of that discretion. (Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 458 N.E.2d 115.) In the present case we find no abuse of discretion in the trial court's refusal to delay its ruling on defendants' motion for summary judgment to allow plaintiff to obtain further discovery.

In arguing that the trial court erred in not continuing the hearing on defendants' motion until defendants complied with her discovery requests, plaintiff relies on the answers to interrogatories by Thomas Wessels, which she attached to her second response to defendants' motion for summary judgment. Plaintiff contends that, in defending other asbestos cases, defendants may have obtained many other such documents or deposition transcripts containing similar information and that defendants should have disclosed these materials in their responses to her interrogatory concerning sales of asbestos to the Waukegan Powerhouse during the years decedent was employed there. ...


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