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11/18/94 KEYSTONE STEEL AND WIRE COMPANY v. ANNETTE

November 18, 1994

KEYSTONE STEEL AND WIRE COMPANY, INTERVENOR-APPELLANT,
v.
ANNETTE COSTA, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DOMINIC COSTA, DECEASED, PLAINTIFF-APPELLEE, AND OWENS-CORNING FIBERGLAS CORP., DEFENDANT-APPELLANT, V. ANNETTE COSTA, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DOMINIC COSTA, DECEASED, PLAINTIFF-APPELLEE.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 88-L-239. Honorable Scott A. Shore, Judge Presiding.

Released for Publication December 22, 1994. As Corrected January 26, 1995.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

These two consolidated appeals (Nos. 3-93-0621 and 3-93-0625) arise out an action brought by the wife of an employee of intervenor-appellant, Keystone Steel & Wire Company (No. 3-93-0621). Annette Costa (hereinafter referred to as the plaintiff), in her individual capacity, and as the executor of the estate of her husband, Dominic Costa, filed a multi-count complaint against numerous defendants, who in one way or another were connected with the manufacture, sale or use of asbestos-containing products. The plaintiff's decedent was an employee of Keystone from 1961 until his death in 1987. (The plaintiff's appeal (No. 3-93-0642) is disposed of in a companion opinion.)

Defendant-appellant, Owens-Corning Fiberglas Corporation (No. 3-93-0625) appeals from the judgment entered against it and in favor of the plaintiff. The other defendants (defendants-appellees in the companion case) are A. P. Green Industries, Inc., Sprinkmann Sons Corporation of Illinois, E.D. Bullard Company, Dresser Industries, Inc., Magid Manufacturing Company and Fibreboard Corporation.

First, a brief background on how the present appeals are before this court. In her 1988 complaint, the plaintiff alleged her husband died of mesothelioma as a result of exposure to the asbestos dust from the defendants' products. The voluminous record reflects that the majority of original defendants were granted dismissals or summary judgment during the extended discovery stage of these proceedings. The cause went to trial in September of 1992.

The record also reveals that just prior to the case going to trial, a barrage of motions (around 60) were filed by all the parties. One filed by the plaintiff pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)) requested Owens-Corning to produce at trial Dr. Jon Konzen, Owens-Corning's Vice President for Medical and Health Affairs. The trial court refused to quash this request. Near the opening of the plaintiff's case-in-chief, she called Dr. Konzen. For reasons discussed more fully below, Dr. Konzen refused to appear.

As a sanction, the trial court entered a judgment as to liability issues against Owens-Corning and stated that only the damages issue would go to the jury. The trial court denied the other defendants' motions for an immediate severance and the trial continued. The jury returned verdicts in favor of all defendants other than Owens-Corning. The jury specifically found in response to a special interrogatory that the decedent did not die of mesothelioma. The instructions given by the trial court informed the jury that the court had ruled in favor of the plaintiff and against Owens-Corning on the issues of negligence and proximate cause. The jury was instructed that the only issue for them to decide in the plaintiff's case against Owens-Corning was the amount of damages. The jury awarded the plaintiff $190,000 survival damages, $86,628 for loss of consortium and nothing for wrongful death.

The trial court subsequently granted the plaintiff's motion for a new trial against Owens-Corning limited to the issue of the amount of wrongful death damages. That jury awarded $700,000 in wrongful death damages. On Owens-Corning's motion, the trial court reduced the plaintiff's recovery by the amount she received from two other defendants who previously settled the claims against them for a total of $100,000. Thus, the plaintiff received a judgment against Owens-Corning in the amount of $876,628.

Owens-Corning filed an appeal. The plaintiff also filed an appeal claiming numerous errors on the part of the trial court. Intervenor, Keystone Steel & Wire Company filed an appeal from a post-trial order which denied the company's claims for certain costs associated with producing numerous documents at plaintiff's request immediately before and during trial. On plaintiff's motion this court consolidated the three appeals for oral argument. For the reasons expressed below we now affirm in cases No. 3-93-0621 and 3-93-0625.

Addressing Owens-Corning's appeal first, we note Owens-Corning does not challenge the sanctions entered by the trial court. As Owens-Corning explained at oral argument, it had been unsuccessful on appeal in challenging similar sanctions entered in other unrelated case wherein Dr. Konzen had refused to appear. Rather Owens-Corning chooses in this case to challenge the trial court's denial of its motions for summary judgment filed at various times before the trial and the denial of its motion for judgment n.o.v.

Additionally, Owens-Corning contends the jury instructions as given inadvertently left the issue of "injury" to be decided by the jury vis-a-vis, Owens-Corning, and thus the verdict of the jury must be vacated because it is against the manifest weight of the evidence. Owens-Corning also challenges the trial court's decision to grant the plaintiff a new trial limited solely to the issue of the amount of wrongful death damages.

In May, 1990, Owens-Corning moved for summary judgment. The motion was renewed a number of times, based on the assertion the plaintiff could not show her husband had been exposed to any Owens-Corning asbestos-containing product. The motion was denied after a hearing held immediately prior to the commencement of the trial. Following the plaintiff's ...


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