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06/27/94 MARGARET KEARNEY v. BRAKEGATE

June 27, 1994

MARGARET KEARNEY, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR FOR THE ESTATE OF ROBERT KEARNEY, DECEASED, PLAINTIFF-APPELLANT,
v.
BRAKEGATE, LTD., CHARTER CONSOLIDATED, PLC, CHARTER CONSOLIDATED INVESTMENTS, LTD., CHARTER CONSOLIDATED SERVICES, LTD., CENTRAL MINING FINANCE, LTD., THE CONSOLIDATED MINES SELECTION COMPANY, LTD., BRITISH SOUTH AFRICA COMPANY, CAPE INDUSTRIES, PLC, CAPE ASBESTOS FIBRES, LTD., EGNEP (PTY) LIMITED, GATKE CORPORATION, ABEX CORPORATION, H.K. PORTER COMPANY, INC., NORTH AMERICAN ASBESTOS CORPORATION, GREFCO, INC., GREAT LAKES CARBON CORPORATION AND GENERAL REFRACTORIES, INC., DEFENDANTS AND OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Champaign County. No. 89L1153. Honorable George S. Miller, Judge Presiding.

Released for Publication July 25, 1994. As Corrected September 6, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Robert W. Cook, J., Honorable James A. Knecht, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

In 1989 Robert Kearney (decedent) and his wife Margaret(plaintiff) filed a claim against Owens-Corning Fiberglas (OCF) and other manufacturers of asbestos-containing products, seeking damages allegedly arising from decedent's exposure to asbestos. Prior to trial all defendants were dismissed except OCF. The case proceeded to trial solely on the issues of causation and damages; the jury returned a verdict for OCF. Plaintiff appeals, contending the trial court erred in refusing her request to call OCF's corporate medical director, Jon Konzen, M.D., as a rebuttal witness, and erred in refusing her tendered jury instruction which explained defendant had failed to comply with her Rule 237 (134 Ill. 2d R. 237) request. We reverse and remand.

Decedent worked at the Union Asbestos Plant (Plant) in Bloomington, Illinois, for six weeks in 1955. OCF purchased the Plant in April 1970. Plaintiff's complaint alleged decedent contracted asbestos as a result of his exposure to asbestos fibers at the Plant and died in 1991 of lung cancer caused by his exposure to asbestos. Plaintiff contended OCF's conspiracy to misrepresent or conceal health hazards associated with asbestos exposure caused decedent's death. Two months prior to trial plaintiff made a Rule 237 request for OCF to produce Konzen at trial. The trial court ordered that Konzen be produced, noting that he was in good health, physically able to appear, and that his presence at trial would not interfere with the operation of OCF's business. OCF refused to produce Konzen, and the trial court sanctioned OCF by entering a default judgment against it on the issue of liability. The case proceeded to jury trial on the issues of proximate cause and damages.

OCF's theory in this case was that exposure to asbestos was not a cause of lung cancer. OCF conceded that exposure to asbestos which had proceeded to the stage of asbestos was a cause of lung cancer. Even with asbestosis, however, OCF contended the asbestosis must be clinically diagnosable, that is, detectable by X ray, in order for asbestos to be a cause of lung cancer.

At trial plaintiff called decedent's treating physician, Maury Topolosky, M.D. Topolosky first examined decedent in November 1987. Decedent had a "history of smoking abuse"; "he had been a two to three pack a day smoker for over 20 years, but he had quit about eight and one half years before" the 1987 exam. Decedent's medical profile indicated chronic obstructive pulmonary disease, comprised of emphysema and chronic bronchitis, pleural disease, heart disease, coronary artery disease, status post mycardial infarction, and a history of angina. Decedent had total lung capacity of 129%, which is consistent with an obstructive defect, but Topolosky testified such results are "not diagnostic of any disease."

Topolosky stated the chest X rays taken in December 1987 showed "increased markings in the lung from some kind of scarring or fibrosis." Topolosky biopsied decedent's lung tissue in December 1987; the biopsy showed "some scarring, fibrosis, a little bit of inflammation," and "asbestos bodies." He indicated the biopsy showed "changes consistent with asbestosis." However, the biopsy also showed some inflammation, and Topolosky agreed that "inflammation can cause fibrotic changes in the lung." When asked what caused the fibrosis shown on the X ray and in the biopsy, Topolosky replied, "we would have to assume it was from asbestosis." He was the first doctor to diagnose decedent with asbestosis. Topolosky based his diagnosis on the asbestos bodies found in the biopsy, not on the X ray. He added that scarring of lung tissue visible on X ray cannot be attributed to any specific entity, and could in fact be caused by an infection unrelated to asbestos exposure.

Topolosky indicated both asbestos exposure and cigarette smoking cause lung cancer, but he could not quantify which entity contributed more to decedent's cancer since "smoking cancer" cannot be distinguished from "asbestos cancer." He stated that asbestos and smoking both contributed to decedent's chronic obstructive pulmonary disease. According to Topolosky, many factors contributed to decedent's death, including lung cancer, asbestosis, and chronic obstructive pulmonary disease, which includes bronchitis and emphysema. Topolosky indicated on cross-examination he was unfamiliar with the study published in the British Journal of Industrial Medicine in 1991 regarding "asbestosis as a precursor of asbestos-related lung cancer." He agreed with a Conclusion from the article: "In this population [of workers exposed to asbestos], excess risk of lung cancer was restricted to workers [with] X-ray film evidence of asbestosis, a finding consistent with the view that asbestos is a lung carcinogen because of its fibrogenicity." Topolosky indicated the article "seems to confirm" that in order to have an increased risk of developing lung cancer as a result of asbestos exposure, there must be a clinically diagnosed condition of asbestosis.

Herbert Abrams, M.D., testified as plaintiff's medical expert. Abrams had never examined decedent. He testified that decedent had "asbestosis as well as several other conditions." In Abrams' opinion decedent's additional physical ailments included chronic obstructive pulmonary disease, chronic bronchitis, pulmonary emphysema, bronchiectasis, and ultimately lung cancer. He determined the references to "fibrosis" in the medical records indicated "asbestosis." Abrams indicated that on an X ray it can be difficult to distinguish damage to the lung caused by cigarette smoking and asbestosexposure; however, the fibrosis shown on decedent's X ray "were not those that one would associate with smoking." According to Abrams, "virtually all authorities" agree that asbestos is an important cause of lung cancer. He testified that asbestos itself is a cause of lung cancer; it is not necessary for an individual to develop asbestosis in order to develop lung cancer from asbestos exposure. Abrams concluded that both asbestos exposure and heavy smoking contributed to decedent's lung cancer, and that "lung cancer was the final cause of his death." However, he could not apportion the percentage of damage caused by each factor.

David Cugell, M.D., testified as OCF's medical expert. Cugell had never examined decedent. He commented that decedent had been a very heavy cigarette smoker for over 20 years and had been exposed to asbestos for only a few months. Cugell stated decedent's lung function tests "showed very severe air flow limitation." Decedent's lung capacity of 129% showed a "compensatory change that commonly occurs in people with severe emphysema." Decedent's large lung capacity would be inconsistent with a restrictive lung disease such as asbestosis. In Cugell's opinion cigarette smoking caused decedent's emphysema, bronchitis, severe obstructive impairment, and lung cancer. Cugell testified that asbestos exposure caused decedent's pleural thickening, but that condition did not affect the function of decedent's lungs.

Although decedent had been exposed to asbestos for several months and a lung biopsy showed the presence of asbestos bodies in decedent's lung, Cugell testified that decedent did not have asbestosis. Cugell indicated that asbestosis "has very specific diagnostic criteria" and decedent's X rays were not consistent with the clinical diagnosis of asbestosis. Relying on decedent's X rays, Cugell disagreed with Topolosky's diagnosis that decedent had asbestosis. Based on a recent study published in 1991 in the British Journal of Industrial Medicine, Cugell stated, "workers [exposed to asbestos] in whom no radiological evidence of fibrosis could be seen had exactly the same frequency or incidence of cancer as the ordinary population, but those that had X ray evidence of fibrosis had a significantly higher likelihood of developing cancer." Cugell had changed his previously held opinion because of this study, and he now believed clinically diagnosed asbestos is must be present to increase an individual's risk of lung cancer. Cugell stated the British Journal of Industrial Medicine is "the premier journal in its field." He testified that decedent did not have clinically diagnosed asbestosis and concluded decedent's asbestos exposure did not cause his lung cancer.

After Cugell testified, OCF rested; plaintiff then made a request to call Konzen as a rebuttal witness in ...


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