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12/21/95 RAVALEE WILKERSON v. PITTSBURGH CORNING

December 21, 1995

RAVALEE WILKERSON, INDIVIDUALLY, AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF FRANK WILKERSON, DECEASED, PLAINTIFF-APPELLEE,
v.
PITTSBURGH CORNING CORPORATION, AND OWEN-CORNING FIBERGLAS CORPORATION, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of McLean County. No. 88L236. Honorable W. Charles Witte, Judge Presiding.

Rehearing Denied February 1, 1996. Released for Publication February 1, 1996. As Corrected July 30, 1996.

Honorable Robert J. Steigmann, J., Honorable Frederick S. Green, J., Concurring. Honorable John T. McCULLOUGH, J., Dissenting

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In October 1988, plaintiff, Ravalee Wilkerson, individually and as special administrator of the estate of Frank Wilkerson (Wilkerson), sued defendants, Owens-Corning Fiberglas Corporation (OCF), Pittsburgh Corning Corporation (PC), and several others to recover damages for harm Wilkerson suffered resulting from his exposure to asbestos-containing products. In September 1994, a jury returned a verdict for plaintiff and against defendants OCF and PC, which appeal, arguing that the trial court erred by (1) giving an adverse inference (missing witness) instruction; (2) refusing to give instructions and a verdict form regarding contribution; (3) refusing to give proximate cause instructions based on the "frequency, regularity, and proximity" test of proximate causation; (4) permitting plaintiff's expert to testify that Wilkerson's cancer was caused by exposure to asbestos; (5) allowing into evidence a certain deposition; (6) excluding certain other deposition testimony; (7) excluding evidence of Wilkerson's exposure to other manufacturers' asbestos-containing products; and (8) denying defendants' motions for directed verdict and judgment n.o.v.

Because we agree with defendants' first argument, we reverse and remand for a new trial.

I. BACKGROUND

In May 1988, Wilkerson died at the age of 58 due to complications arising from surgery to remove a malignancy from his lung. Plaintiff alleged that her husband developed lung cancer as a result of his exposure to asbestos-containing products manufactured, distributed, or installed by OCF and PC during his employment as a boilermaker from 1966 to 1988 at certain power plants in Illinois. In 1986, Wilkerson began to experience health problems. In December 1986, an X ray showed a spot on his right lung. In April 1988, Dr. Neil Rosenberg, a consulting physician, examined Wilkerson to diagnose the growth and suggest treatment. In May 1988, after performing a lobectomy, Wilkerson's physicians determined that the growth was a carcinoma of the lung. Approximately three weeks after the lobectomy, Wilkerson died due to lung carcinoma and cardiovascular disease.

During 1967, Wilkerson worked for Riley Stoker on the construction of the Edwards Station power plant (Edwards). In 1971, Wilkerson worked at Edwards for Foster Wheeler. In 1967, OCF supplied more than 5,400 linear feet of asbestos-containing Kaylo pipe covering to Sprinkmann, the insulation contractor at Edwards. In 1971, OCF supplied more than 5,000 linear feet of Kaylo pipe covering to Sprinkmann at Edwards.

Gary Gaylord testified that he used Kaylo while working as an insulator for Sprinkmann at Edwards, and Kaylo generated dust which filtered through the entire building, including the breathing zones of boilermakers working underneath. Gaylord also stated there was no way that a boilermaker could have worked at Edwards and not breathed some of the dust the Kaylo gave off.

Floyd Wood, a boilermaker, worked with Wilkerson at Edwards. Wood testified that dust generated by the insulators working above the boilermakers entered the air they breathed.

Wilkerson worked for several employers at the Quad-Cities Nuclear Facility at Cordova (Cordova power plant) during the fourth quarter of 1968, the first and second quarters of 1969, the first quarter of 1970 (when he worked for Power Systems), the fourth quarter of 1970 and the first quarter of 1971 (when he worked for United Engineers), and the second and third quarters of 1972. During 1970 and 1971, PC shipped more than 51,000 linear feet of asbestos-containing Unibestos pipe covering to the Cordova power plant, in care of Brand Insulation (Brand).

Robert Sindelar, through a deposition, testified that he worked as an insulator for Brand at the Cordova power plant during January and February 1970, and from March 1971 through August 1972. Sindelar testified that he recalled using Unibestos pipe covering at the Cordova power plant.

James Ferguson, an insulator for Brand at the Cordova power plant during 1970 and 1971, testified that he recalled using Kaylo pipe covering and believed that he used Unibestos as well. Ferguson stated that when he applied the insulation it gave off dust which entered the breathing zones of all workers without any system for containment. Ferguson testified that any boilermaker working at the Cordova power plant during 1970 and 1971 would have breathed asbestos dust from products used by Brand insulators.

During the third and fourth quarters of 1972, Wilkerson worked at the Powerton Station power plant (Powerton). In 1972, OCF delivered more than 7,100 linear feet of Kaylo pipe covering to Powerton. Wood testified that insulators working above the boilermakers generated asbestos dust which then filtered down into the air breathed by the boilermakers.

Dr. Jon Konzen, a former medical director of OCF, testified that, regarding concerns about cancer, any exposure to asbestos is too much. Dr. Konzen also testified that when a worker is exposed to asbestos from more than one source, it is impossible to exonerate any of the sources and, from a medical perspective, each source would be considered a cause of the resulting disease.

Dr. Rosenberg testified that his objective as a consulting physician was to diagnose Wilkerson's condition. After taking a complete history, performing a physical examination, and reviewing Wilkerson's X rays, Dr. Rosenberg concluded that Wilkerson had an enlarging mass which was probably malignant. Dr. Rosenberg also testified that, in his opinion, Wilkerson's occupational exposure to asbestos was related to the cause of his lung cancer.

Dr. Michael Graham, the medical expert witness for defendants, testified that he saw no evidence that asbestos fibers had caused any scarring on Wilkerson's lungs. Dr. Graham further testified that in the absence of any objective evidence of such scarring, the cause of Wilkerson's lung cancer was his longtime cigarette smoking.

II. ANALYSIS

A. The Instruction on Defendants' Failure To Produce Witnesses

Defendants first argue that the trial court abused its discretion by giving plaintiff's tendered jury instruction No. 9A, which was based on Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1989) (hereinafter IPI Civil 3d), which informs the jury that if a party fails to produce a witness whom the party has the power to produce, the jury may infer that the witness' testimony would be adverse to that party. Defendants assert that plaintiff's instruction No. 9A was improper because the testimony of defendants' experts, Drs. Weill and Skillrud, would have been cumulative of the testimony of Dr. Graham. In response, plaintiff argues that the court properly gave the instruction because defendants did not present evidence of warnings or threshold limit values and because PC stated that it would present experts and then did not produce them. We agree with defendants' analysis.

IPI Civil 3d No. 5.01, the adverse inference instruction, is available when (1) the witness was under the control of the party against whom the instruction is offered and could have been produced by reasonable diligence, (2) the witness was not equally available to the adverse party, (3) a reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him, and (4) no reasonable excuse for the failure to produce the witness has been shown. Taylor v. Kohli (1994), 162 Ill. 2d 91, 97, 642 N.E.2d 467, 469, 204 Ill. Dec. 766.

The giving of IPI Civil 3d No. 5.01 is within the discretion of the trial court, and a reviewing court will reverse only when the trial court clearly abused its discretion. ( Johnson v. Owens-Corning Fiberglas Corp. (1992), 233 Ill. App. 3d 425, 436, 599 N.E.2d 129, 136, 174 Ill. Dec. 583.) Before giving the instruction, the trial court must first determine whether, in all likelihood, the party would have produced the witness under the facts and circumstances of the case unless the testimony would be unfavorable. ( Johnson, 233 Ill. App. 3d at 436, 599 N.E.2d at 136.) For example, if the witness' testimony would be merely cumulative of facts already established, the instruction is not warranted. Johnson, 233 Ill. App. 3d at 437, 599 N.E.2d at 137.

After the evidence had been presented, the trial court conferred with counsel about the instructions and exhibits. Plaintiff explained that she tendered instruction No. 9A because defendants listed the experts as witnesses and then failed to produce them to testify. Defendants objected to the instruction because the testimony of Drs. Weill and Skillrud would have been cumulative to the testimony of Dr. Graham. According to OCF, once it had observed Dr. Graham testify with clarity as to defendants' position that the cause of Wilkerson's cancer was cigarette smoking, OCF determined that there was no need to extend the trial another day by calling Drs. Weill and Skillrud to testify. According to PC, both Drs. Weill and Skillrud would have testified that cigarette smoking was the sole cause of Wilkerson's cancer, and such testimony was cumulative of Dr. Graham's testimony. The trial court overruled defendants' objections without further explanation.

The record before us, including Dr. Weill's opinion letter and Dr. Skillrud's deposition, demonstrates that the testimony of those experts would have been cumulative to the testimony of Dr. Graham, as defendants contended at the conference. Dr. Graham testified that he saw no evidence that asbestos fibers had caused any scarring on Wilkerson's lungs, and in the absence of any objective evidence of scarring, the cause of his lung cancer was cigarette smoking. Dr. Weill stated in his opinion letter that no basis existed upon which to conclude that Wilkerson's lung cancer was attributable to asbestos exposure, and the "overwhelming probability" was that his lung cancer was caused by cigarette smoking. Dr. Skillrud testified in his deposition that there "was no objective evidence of asbestos is whatsoever. Furthermore, there is no objective evidence for asbestos exposure. [Wilkerson's] smoking history was the cause of the lung [cancer]." Because the testimony of Drs. Weill and Skillrud would have been merely cumulative of facts already established through Dr. Graham, the adverse inference instruction was not warranted, and the trial court, in giving that instruction, affirmatively misled the jury regarding a situation he knew not to be true. Accordingly, we hold that the trial court abused its discretion in giving that instruction.

In so holding, we note that a rule that penalizes a party for failure to call expert witnesses whom the party has previously identified has potentially unfair--and serious--consequences. If a party does not disclose an expert witness, then the trial court properly may bar the witness' testimony. If a party does disclose an expert witness but does not call the witness to testify, the party may be harmed if the court gives the adverse inference instruction. Requiring a party to call all previously disclosed expert witnesses would unnecessarily prolong the trial and unnecessarily increase expenses. (See Chiricosta v. Winthrop-Breon (1994), 263 Ill. App. 3d 132, 158-59, 635 N.E.2d 1019, 1038, 200 Ill. Dec. 680.) As this court stated in Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill. ...


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