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05/19/94 NEMA HARTMAN v. PITTSBURGH CORNING

May 19, 1994

NEMA HARTMAN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JAMES LEO HARTMAN, DECEASED, PLAINTIFF-APPELLEE,
v.
PITTSBURGH CORNING CORPORATION, DEFENDANT-APPELLANT AND CELOTEX CORPORATION AND MANVILLE PERSONAL INJURY ASBESTOS COMPENSATION FUND, DEFENDANTS.



Appeal from the Circuit Court of Madison County. No. 88-L-888. Honorable Paul E. Riley, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Goldenhersh, Welch,* Lewis

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiff, James L. Hartman, filed this action against numerous defendants involved in mining, manufacturing, processing, selling, and/or distributing asbestos products. The complaint, filed in the circuit court of Madison County on August 10, 1988, contained counts of negligence and strict liability, alleging that defendants were liable for plaintiff's physical damages after exposure to large amounts of asbestos. Prior to trial, plaintiff reached settlement agreements with all of the defendants except Pittsburgh Corning Corporation (Pittsburgh Corning), Celotex Corporation (Celotex), and Manville Personal Injury Asbestos Compensation Fund (Manville Fund). Following a jury trial, a verdict was returned in favor of plaintiff and Celotex and against Pittsburgh Corning and the Manville Fund for compensatory damages. The jury additionally assessed punitive damages against Pittsburgh Corning. After the verdict was returned, plaintiff petitioned the trial court to allocate half of the previously agreed-upon settlement amounts to plaintiff's wife, Nema Hartman. The trial court granted plaintiff's petition and entered orders allocating 50% of the settlements which included her name on the release to Mrs. Hartman. Defendant Pittsburgh Corning (defendant) is the sole appellant in the case now before this court.

On appeal, defendant contends: (1) that the trial court erred in failing to reduce judgment on the compensatory damages verdict by the full amount of plaintiff's prior settlements; (2) that count II of plaintiff's complaint, alleging negligence, which did not contain facts alleging the negligent conduct undertaken by defendant, the time and place of the allegedly negligent conduct, or any causal connection between the allegedly negligent conduct and the plaintiff's claimed injury, was insufficient as a matter of law; (3) that count III of plaintiff's complaint, requesting punitive damages, was insufficient as a matter of law; (4) that defendant was entitled to a directed verdict or judgment notwithstanding the verdict (n.o.v.) when plaintiff rested without having introduced evidence that established exposure to a product of defendant sufficient to cause his injury, that defendant was negligent in its alleged failure to warn, or that the alleged negligence proximately caused plaintiff's injuries; (5) that the trial court abused its discretion in allowing the testimony of plaintiff's expert witnesses whose identity and opinions were not disclosed to defendant until two days after the start of trial; (6) that defendant was prejudiced by the trial court's ruling allowing plaintiff to introduce evidence against defendant that was not disclosed to defendant until two days after the start of trial, in violation of the trial court's standing order regarding discovery; (7) that defendant was prejudiced by the trial court's refusal to review the evidence on the punitive damages claim prior to submission of the claim to the jury; (8) that defendant was prejudiced by the trial court's admission of punitive damages evidence that consisted of irrelevant, inflammatory, and prejudicial matters that had no causative relationship to plaintiff's alleged injury; (9) that defendant was prejudiced by the trial court's admission of the personal opinion and Conclusions of plaintiff's expert, which opinion invaded the province of the jury; (10) that defendant was prejudiced by the trial court's exclusion of defendant's evidence that tended to establish that its allegedly defective warning was not the proximate cause of plaintiff's injury; (11) that defendant was prejudiced by the trial court's editing of a videotaped deposition of plaintiff's witness; (12) that defendant was prejudiced by the trial court's failure to instruct the jury correctly as to Illinois law regarding proximate cause; (13) that defendant was prejudiced by statements made by plaintiff's counsel that were false and violated the court's order in limine; and (14) that defendant was prejudiced by misrepresentations made to the jury by plaintiff and a codefendant. We affirm.

I

The evidence at trial established that plaintiff was an electrician. He was sent on hundreds of jobs in that occupation during the course of his career. At trial, plaintiff presented evidence that he was exposed to asbestos at three different job sites: (1) the Washington University Research Center in Missouri where he worked 13 months during 1950-51, (2) the Meramec Power House in Missouri for 24 months during 1953-55, and (3) the Labadie Power House in Missouri for approximately 12 months during 1969-70. Plaintiff presented evidence to show that defendant's asbestos product, Unibestos, was used extensively by the workers at the Labadie facility. Plaintiff testified that while he was working at Labadie, there were approximately 100 insulators working in the power house, insulating pipes. One of plaintiff's duties was laying wire in cable trays containing asbestos, and those trays were cleaned with an air hose causing dust to fill the air. He also worked around the insulators when they mixed cement, which caused more dust to enter the air. Additionally, the insulators using asbestos products caused the dust from those products to fill the air. Plaintiff retired in 1987. Approximately two weeks after he retired, he went to his doctor complaining of shortness of breath and was diagnosed with mesothelioma. The diagnosis was confirmed by other doctors, and it was determined that plaintiff required an operation to remove his right lung. Following the surgery, plaintiff was unable to perform any strenuous activity and suffered a great deal of discomfort. The prognosis for plaintiff was that the mesothelioma was terminal, and in fact, on October 24, 1991, plaintiff died.

Due to the complexity and number of issues in this case, additional facts will be addressed as necessary to resolve each issue.

II

In this appeal, defendant first argues that the trial court erred in failing to reduce the compensatory damages verdict by the amount of plaintiff's prior settlements. As noted above, plaintiff entered into settlement agreements with nine defendants prior to or during trial. Those settlements amounted to $584,090.62. In some of the settlement agreements, plaintiff was the only party signing the releases, while in others both plaintiff and Mrs. Hartman signed. There were no specific allocations between plaintiff and Mrs. Hartman with respect to the agreements where Mrs. Hartman signed the release. After the verdicts' were returned against defendant and the Manville Fund for compensatory damages in the amount of $676,880, plaintiff petitioned the court to allocate $222,600 of the settlement amount to his wife. That amount represented one-half of the settlements in which Mrs. Hartman's signature appeared on the release. The court granted plaintiff's petition and allocated the requested amount to Mrs. Hartman. The court allocated the remaining $361,490.62 of the settlement amount to plaintiff and ordered that the settlement amount allocated to plaintiff be set off against the verdict for compensatory damages.

Defendant contends that the trial court erred in allocating the settlement amounts and in failing to reduce the compensatory damages award by the entire amount plaintiff and his wife received through the settlement agreements. In support of this contention, defendant first argues that the trial court's order allocating settlement money to Mrs. Hartman was in error because she was not a party to the action. Defendant further argues that the court erred in not further reducing the compensatory damages verdict by the $222,600 allocated to Mrs. Hartman.

Defendant cites the Illinois Contribution Among Joint Tortfeasors Act (the Act) (Ill. Rev. Stat. 1989, ch. 70, par. 302(c) (now 740 ILCS 100/2 (West 1992))), which provides that settlement amounts reduce the recovery of compensatory damages on claims against nonsettling defendants by the amount paid through settlement agreements. Clearly, defendant is correct in asserting that the Act applies to the settlement amount received by plaintiff. The question is whether the court erred in allocating $222,600 of the settlement amount to Mrs. Hartman rather than including the money in the amount used to offset the compensatory damages award against defendant. In support of its position on this issue, defendant points us to Dick v. Gursoy (1984), 124 Ill. App. 3d 185, 471 N.E.2d 195, 83 Ill. Dec. 896, in which the plaintiff filed a two-count complaint, wrongful death and survival actions, against six joint tortfeasors. Prior to trial, the plaintiff settled with five of the defendants. The jury returned verdicts for separate compensatory damages on both counts against the sole remaining defendant. After judgment was entered on the verdicts, the plaintiff petitioned the court to allocate the settlement awards as being in exchange for the plaintiff's covenant not to sue regarding only the wrongful death counts against the five settling defendants. The court granted the plaintiff's petition, and the setoff was granted to the defendant only with regard to the wrongful death verdict. The appellate court reversed the trial court's judgment and ordered that the settlement proceeds credited against both the wrongful death award and the survival award. The court held that the trial court's order resulted in double recovery by the plaintiff.

We find Dick to be distinguishable from the case at bar, however. In Dick, only the rights of one party were being relinquished in covenants not to sue, whereas two people's rights are involved in the present action. When the settling defendants in this case made the checks payable to both plaintiff and Mrs. Hartman, requiring Mrs. Hartman's signature on the releases, they were obviously protecting themselves against future claims by Mrs. Hartman. Therefore, we are not persuaded by Dick.

The determination of which of several claims a settlement should be attributable to is a matter for the discretion of the trial court. Eaton v. Jackson (1984), 128 Ill. App. 3d 893, 896, 471 N.E.2d 651, 654, 84 Ill. Dec. 122; McDaniel v. Hoge (1983), 120 Ill. App. 3d 913, 915, 458 N.E.2d 1063, 1064, 76 Ill. Dec. 409.

Plaintiff argues that the trial court properly allocated the $222,600 to Mrs. Hartman because she had claims for loss of consortium and negligent infliction of emotional distress. Plaintiff asserts that the fact that Mrs. Hartman was not a party to the suit is irrelevant. When certain defendants named her on the settlement checks and required her to sign the releases, they recognized her claims as plaintiff's spouse. Plaintiff further asserts that by executing the releases, Mrs. Hartman relinquished her right to sue those defendants in the future and the court properly recognized that fact. We agree with plaintiff. The court did not abuse its discretion in allocating $222,600 of the settlement payments to Mrs. Hartman. Furthermore, the trial court did not abuse its discretion in refusing to reduce the compensatory damages verdict against defendant by that amount.

III

Defendant next contends that plaintiff's complaint for negligence was insufficient as a matter of law. Defendant first argues that plaintiff's negligent-failure-to-warn count was deficient in that it failed to: (1) specify defendant's prospective positions in the chain of product distribution; (2) identify what products each defendant manufactured, sold, or distributed; (3) identify the time period during which plaintiff was exposed to the asbestos products; and (4) identify the locations at which plaintiff was exposed to each product. It is well settled that courts will construe pleadings liberally when determining whether a complaint is adequate. ( People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 145, 435 N.E.2d 463, 466, 61 Ill. Dec. 766.) Moreover, following a trial and verdict, a reviewing court will attempt to construe a pleading as sufficient to state a cause of action rather than failing to allege a cause of action. ( Cole v. Guy (1989), 183 Ill. App. 3d 768, 774, 539 N.E.2d 436, 440, 132 Ill. Dec. 126.) The allegations of a complaint are sufficient to state a cause of action if they reasonably inform the opposite party of the claim against it. College Hills Corp., 91 Ill. 2d at 145, 435 N.E.2d at 467.

A liberal review of plaintiff's complaint shows that plaintiff alleged the essential elements of negligence: (1) existence of a duty owed by defendant to plaintiff; (2) breach of that duty; and (3) injury proximately caused by that breach. ( Ward v. K Mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226, 143 Ill. Dec. 288.) Plaintiff alleged that defendant owed plaintiff a duty by asserting first that plaintiff worked at sites where he was exposed to defendant's asbestos products. Plaintiff alleged that defendant breached its duty because defendant knew or should have known that its product was toxic and defendant failed to exercise care in the manufacturing of, selling of, and warning of the dangers associated with asbestos. Plaintiff further alleged that he developed mesothelioma because of his exposure to defendant's product.

We conclude that these allegations are sufficient to state a cause of action in that they reasonably informed defendant of the claim against it, and defendant's argument does not overcome the presumption that the pleading was sufficient to state a cause of action.

Defendant next argues that count III of plaintiff's complaint, seeking punitive damages, is deficient for lack of specificity and violates section 2-604.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2-604.1 (now 735 ILCS 5/2-604.1 (West 1992))). Section 2-604.1 provides, in pertinent part:

"In all actions on account of bodily injury or physical damage to property, based on negligence, or product liability based on strict tort liability, where punitive damages are permitted no complaint shall be filed containing a prayer for relief seeking punitive damages. However, a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages. The court shall allow the motion to amend the complaint if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages." Ill. Rev. Stat. 1989, ch. 110, par. 2-604.1.

In October 1988, the circuit court issued an order stating that plaintiffs involved in asbestos litigation in Madison County would be allowed to seek punitive damages against certain defendants but not others. Defendant in this case is listed as one of the companies from which punitive damages could be sought. The record indicates a proper consideration by the trial court of this issue pursuant to section 2-604.1. Our review of the pleadings leads us to conclude that the subsequent pleading was sufficiently specific in its allegations. Defendant's argument on this issue has no merit or support in this record and need not be discussed further.

Defendant next contends that plaintiff failed to present sufficient evidence to prove defendant was negligent. The standard of review is that a judgment in favor of a plaintiff can be reversed only if the evidence, when viewed most favorably to the plaintiff, so overwhelmingly favors defendant that no contrary verdict could stand. ( Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 11, 445 N.E.2d 39, 42, 67 Ill. Dec. 747.) A reviewing court will not substitute its judgment for that of a jury and set aside a verdict unless there is a lack of reasonable basis for the verdict shown in the record. Hernandez v. Lukas (1982), 104 Ill. App. 3d 692, 694, 432 N.E.2d 1028, 1029, 60 Ill. Dec. 129.

With that in mind, we turn to defendant's argument that plaintiff failed to present sufficient evidence that he was exposed to Unibestos. As defendant correctly points out, in actions for injuries sustained through asbestos products, Illinois case law requires that plaintiffs establish proximity to that product on a regular basis over a given period of time and that the exposure had a causal connection to a plaintiff's injury. Wehmeier v. U.N.R. Industries, Inc. (1991), 213 Ill. App. 3d 6, 572 N.E.2d 320, 157 Ill. Dec. 251; Zimmer v. Celotex Corp. (1989), 192 Ill. App. 3d 1088, 549 N.E.2d 881, 140 Ill. Dec. 230.

At trial, plaintiff produced invoices that proved defendant sold Unibestos to the Labadie facility. Plaintiff also presented testimony of former Labadie employees, Larry Walsh and Robert Lotich, that they used the product at that facility. Both witnesses stated Unibestos was present at the site from January through July 1970, while plaintiff was employed there. Both men stated that they worked as insulators at the power house and Unibestos was used regularly and frequently during the time plaintiff worked there. Plaintiff testified he came in contact with the product regularly and frequently because he worked in areas of the facility where the asbestos material was cut. He stated that dust was easily visible in several areas of the plant.

We find that a jury could reasonably conclude that plaintiff's evidence satisfied his burden of proof. Plaintiff established that defendant's product was used at the Labadie power house, and that he was exposed to it for at least six months on a regular basis. This evidence, combined with the medical evidence of plaintiff's injury, convinced the jury that defendant's product caused plaintiff's disease. Such a Conclusion is not unreasonable, nor is it against the manifest weight of the evidence.

Defendant next argues that plaintiff failed to introduce any evidence that defendant's failure to warn proximately caused plaintiff's injury. After a careful review of the record, we find this argument to be without merit, and we proceed to defendant's assertion that plaintiff failed to prove Unibestos caused his mesothelioma.

At trial, Dr. Carlos Bedrossian testified he was involved in the diagnosis of plaintiff's condition, and the diagnosis was malignant mesothelioma. Dr. Bedrossian further testified that mesothelioma is caused by the attachment of asbestos fibers to the chest wall. Defendant did not present any evidence disputing plaintiff's diagnosis or the causation of his condition. Defendant argues, however, that plaintiff did not prove that his exposure to Unibestos at the Labadie power house caused his mesothelioma. Defendant asserts that plaintiff was exposed to asbestos on more than one job site, and plaintiff's experts testified it would be impossible for medical science to determine which asbestos product caused plaintiff's illness. Defendant further asserts that such uncertainty by plaintiff's experts defeats plaintiff's prima facie case as to causation.

We disagree. As defendant correctly states, when circumstantial evidence is relied on in products liability actions, it must justify an inference of probability, as distinguished from possibility. ( Naden v. Celotex Corp. (1989), 190 Ill. App. 3d 410, 415, 546 N.E.2d 766, 769, 137 Ill. Dec. 821.) In the case before us, we find that the circumstantial evidence did justify an inference of probability that defendant's product caused plaintiff's injury. The evidence showed that defendant's product contained asbestos, that exposure to asbestos was the cause of plaintiff's illness, and that plaintiff was exposed to defendant's product over a period of several months. The jury also heard defendant's expert, Dr. Elliot Hinkes, testify that plaintiff's exposure to asbestos in the 1950's was approximately eight times more probably the cause of plaintiff's condition than the exposure at Labadie in 1969-70. The jury also heard testimony by plaintiff's rebuttal witness, Dr. John Dement, who stated that the formula used by Dr. Hinkes to arrive at the above Conclusion was applicable to populations, but not to individuals. Dr. Dement further asserted that it is impossible to determine when an individual who develops mesothelioma was exposed to the asbestos that caused the disease. This testimony, coupled with plaintiff's other evidence, provided the jury with sufficient basis to infer that defendant's product probably, rather than merely possibly, caused plaintiff's injury.

IV

Defendant next contends the trial court erred in allowing plaintiff to change and broaden his case after trial began. On October 2, 1989, plaintiff filed an action for immediate trial, arguing that he was dying from mesothelioma. The trial court granted plaintiff's motion and set trial for April 16, 1990. On the first day of trial, plaintiff informed the court that new national counsel was being substituted for plaintiff's previous national counsel. For a reason unrelated to plaintiff's change of counsel, Celotex requested a continuance. Plaintiff objected, arguing that plaintiff's disease was an imminent threat to his life. The trial court denied Celotex's motion, and the parties proceeded with motions and jury selection for three days. On April 18, 1990, plaintiff entered a motion for a 30-day continuance, and counsel presented the court with a new list of expert witnesses and fact witnesses and a new list of exhibits he intended to use at trial. Defendant objected to plaintiff's request for continuance and the new designations of witnesses and exhibits. Defendant asserted that plaintiff's request for continuance was inconsistent with the position he took in opposition to Celotex's same request two days earlier. Defendant argued that plaintiff's change of heart could only mean his motion to continue was motivated by plaintiff's new counsel's intent to prepare a different case against defendants. Over these objections, the trial court granted plaintiff's motion and reset the trial for June 4, 1990.

On April 30, 1990, defendant filed written objections to plaintiff's new witness and evidence designations. Defendant argued that the new designations indicated that plaintiff would pursue a different theory of liability against defendant. The court denied defendant's motion to bar plaintiff's witness and evidence designations, and trial began on June 4, 1990, 48 days after plaintiff's new designations. Defendant argues that plaintiff's late designation of expert witnesses violated a standing order issued by the circuit court of Madison County relating to asbestos litigation and also violated Supreme Court Rule 220 (134 Ill. 2d R. 220). Rule 220 states, in pertinent part:

"In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert's opinion first becomes known to that party or his counsel or, if the substance of the expert's opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. * * * All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. * * * Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness." 134 Ill. 2d R. 220(b)(1).

This court has interpreted Rule 220 such that disclosure of expert witnesses is mandatory, regardless of whether the trial court issues an order establishing a schedule for disclosure of experts, and the disclosure of such experts must be made at least 60 days prior to the commencement of trial. ( Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 571, 525 N.E.2d 1172, 1175, 121 Ill. Dec. 865.) Since plaintiff in the case at bar designated new expert witnesses only 48 days prior to the date trial began, he violated Supreme Court Rule 220. Such a violation does not automatically require that the witnesses be barred from testifying, however. Our supreme court in Sohaey v. Van Cura, 158 Ill. 2d 375, 634 N.E.2d 707, 199 Ill. Dec. 654 (Feb. 17, 1994), held that trial courts have discretion under Rule 220 once a violation has been determined. The court interpreted its Rule 220 as follows:

"On appeal to this court, [appellants] argue that neither the language of Rule 220 nor the case law support the appellate court opinion. They argue that once a trial court has determined that there has been a violation of Supreme Court Rule ...


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