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06/29/95 OTTO KESSINGER v. (NO. 85-L-359) GREFCO

June 29, 1995


Appeal from Circuit Court of McLean County. Nos. 85L359, 87L120, 87L121, 87L294. Honorable Luther H. Dearborn, Judge Presiding.

Rehearing Denied August 17, 1995. As Corrected August 18, 1995. Petition for Leave to Appeal Allowed December 6, 1995.

Justices: Honorable Frederick S. Green, J. Honorable Carl A. Lund, J. Honorable Robert W. Cook, J. Justice Green delivered the opinion of the court: Lund, J., concurs. Cook, J., dissents.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

Plaintiffs Otto Kessinger, Windell and Judy Kessinger, Carl and Imogene Chase, and Juan and Guadalupe Hernandez filed separate suits in the circuit court of McLean County against defendant Grefco, Inc. (Grefco), and other defendants. In April 1992, these cases were consolidated into a single proceeding. By the time of trial, Grefco had become the only remaining defendant. Each of the male plaintiffs sought damages for alleged injuries he received working as an employee of Union Asbestos and Rubber Company (UNARCO) or its successor, Owens-Corning Fiberglas Corporation (Owens) and for which Grefco or its predecessor, Great Lakes Carbon Corporation (Great Lakes), had furnished diatomaceous earth, Grefco having assumed responsibility for any liability of Great Lakes. The female plaintiffs sought damages for the loss of consortium they suffered because of the alleged injury to their respective husbands.

After a jury trial, the circuit court entered judgment on a verdict for Grefco on July 16, 1993, and on March 29, 1994, denied plaintiffs' post-trial motion. Plaintiffs have appealed contending that the circuit court erred in (1) rulings in regard to Grefco's claim of an affirmative defense of intervening cause; (2) rulings in regard to plaintiffs' supplemental motion for collateral estoppel and related matters; (3) submitting Grefco's requested special interrogatories to the jury while refusing plaintiffs' definition instruction; and (4) allowing Grefco to use and admit into evidence nondisclosed photographs which were obtained by defendant's retained expert the day before trial.

We conclude that we must reverse and remand for a new trial. Error occurred in regard to the rulings on Grefco's alleged affirmative defense of intervening cause but, as we later explain, that error would not necessarily have required reversal. However, we determine that reversible error occurred in connection with the collateral estoppel issue and related matters.

The evidence showed indisputably that the male plaintiffs had worked at the UNARCO or Owens plant at Bloomington as follows: (1) Otto Kessinger (spring of 1954 to summer of 1955); (2) Windell Kessinger (through 1959, part of 1960 and part of 1965); (3) Chase (1965 until 1970); and (4) Hernandez (10 months in 1959 and 1960). All had some exposure to objects containing diatomaceous earth and to dust which might contain that substance. Grefco or its predecessor for which it was responsible furnished that substance to UNARCO or Owens during that period and it was the only substance furnished by Grefco or its predecessor which could have caused the injury for which suit was brought. The evidence was undisputed that neither Grefco nor its predecessor labeled its product in such a way as to give notice of danger involved in exposure to the product or otherwise gave such notice.

Most of the evidence of the nature of the injuries claimed by the male patients came from the testimony of Dr. Herbert Abrams, a physician who was board certified in preventive medicine and public health. He had studied the medical records and chest X rays and CAT scans of the four male plaintiffs and expressed an opinion that(1) Otto Kessinger had both asbestosis and silicosis; (2) Windell Kessinger also had both of those diseases; (3) Chase had advanced fibrosis due to both asbestos and silica exposure; and (4) Hernandez had minimal or early stages of both asbestosis and silicosis. Dr. William Neil, Otto Kessinger's family practice physician, said Kessinger had reported shortness of breath to him which he believed resulted from obstructive and restrictive lung disease.

Grefco countered with testimony from Dr. Robert Jones, a professor at Tulane Medical School who limits his practice to lung diseases, and Dr. David Cugell, who also limits his practice primarily to lung diseases and who is director of the pulmonary function laboratory at Northwestern Memorial Hospital in Chicago. They also examined chest x rays and CAT scans of the four male plaintiffs and concluded that almost all of the fibrosis shown on these documents was in the lower lungs, which indicated asbestosis. They stated that they found no evidence of silicosis on any of the x rays.

Abrams agreed with Jones and Cugell that the pulmonary fibrosis that can result from exposure to diatomaceous earth is silicosis and that the pulmonary fibrosis that can result from exposure to asbestos is asbestosis. As we discuss later in more detail, Abrams disagreed with Jones and Cugell as to the likelihood that persons in the situation of the male plaintiffs would be likely to suffer from silicosis, but their major dispute concerned the significance of the place in the lungs where fibrotic changes are shown in determining whether a subject has asbestos is or silicosis. Jones and Cugell contended that such changes in the lower-lung area indicate asbestos is while those in the upper area indicate silicosis. This fundamental difference was the major reason why the diagnosis of Abrams differed from that of the physicians testifying for Grefco.

Neither side disputes the sufficiency of the evidence to support a determination in favor of the other side. The rights of the female plaintiffs are tied entirely to a right of recovery for their respective spouses. Grefco does not dispute that any female plaintiff could recover if her spouse was permitted to do so.

Grefco pleaded as an affirmative defense that at the times the male plaintiffs worked at UNARCO or Owens, those employers "knew or should have known" it was using "fibrotic raw materials" and that workers' exposure to these fibers should be minimized but that despite its knowledge UNARCO or Owens failed to provide adequate safety measures to protect the workers. The pleading then maintained that these factors were the proximate cause of the injuries to the male plaintiffs and that these factors were unforeseeable.

In Wehmeier v. UNR Industries, Inc. (1991), 213 Ill. App. 3d 6, 31-33, 572 N.E.2d 320, 337-38, 157 Ill. Dec. 251, this court held that on retrial of a suit by former UNARCO employees against suppliers of asbestos for injury allegedly sustained from breathing asbestos dust at the plant involved here, the defense could raise a defense of an intervening factor that UNARCO failed to take measures to protect its employees from the dust. However, this court made clear that the action or inaction of UNARCO would have to be such that it would have been unforeseen by the defendant suppliers. In Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill. App. 3d 882, 929, 588 N.E.2d 1193, 1223, 167 Ill. Dec. 1063, this court concluded that no reversible error occurred in the dismissal of an affirmative defense of superseding cause in a case similar to that here where the defense did not allege that the conduct of the employer-user of asbestos and diatomaceous earth was not foreseeable.

Here, Grefco's affirmative defense focused upon what UNARCO or Owens knew or should have known about diatomaceous earth and not upon what Grefco would have foreseen. Moreover, no evidence indicated that Grefco should not have foreseen that UNARCO or Owens was unlikely to take steps to protect its employees from breathing the dust from the diatomaceous earth. Plaintiffs moved at one time to have the defense stricken, but the court denied it. Under the evidence and pleadings here, the issue was never properly raised for consideration by the jury. However, the problem created does not stop with this analysis. Plaintiffs maintain that confusion over the proper manner of instructing the jury on this issue increased the prejudice to plaintiffs arising from this issue.

Over plaintiffs' objection, the court gave an issues instruction in the form of Illinois Pattern Jury Instructions, Civil, No. 20.01 (3d ed. 1989) (hereinafter IPI Civil 3d). It set forth plaintiffs' allegations of negligence and the injuries for which they sought compensation. It also stated that "the plaintiffs further claim that one or more of the foregoing was a proximate cause of their injuries." The instruction then stated as follows:"Defendant claims

"Defendant claims

(a) Despite Unarco's knowledge that there were fibrogenic dusts in its plant and its knowledge that it should minimize exposure and inhalation of fibrogenic dusts by its workers, Unarco failed to provide adequate safety measures and ...

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