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06/03/96 EILEEN P. BARRY v. OWENS-CORNING FIBERGLAS

June 3, 1996

EILEEN P. BARRY, INDEPENDENT EXECUTOR OF THE ESTATE OF JAMES KEVIN BARRY, DECEASED, PLAINTIFF-APPELLEE,
v.
OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DEAN M. TRAFELET, JUDGE PRESIDING.

Rehearing Denied July 30, 1996. Released for Publication August 13, 1996.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

In this appeal we are required to explore the boundaries of reasonable compensation in personal injury cases.

This is a wrongful death and survival action against Owens-Corning Fiberglas Corporation (OCF). The jury returned an itemized verdict that totalled $12,319,620.96. OCF attacks the verdict, contending that improper evidence, wrong jury instructions, and an unauthorized verdict form led to an award that is grossly excessive, not reasonably related to the evidence, and in contravention of public policy.

We take seriously OCF's contentions, but we do not agree with them. We affirm the judgment on the jury's verdict.

BACKGROUND

James Kevin Barry (Barry) was a journeyman insulator who had worked in the insulation trade since 1948. In July 1992, Barry began experiencing shortness of breath. He was diagnosed as having mesothelioma, a cancer of the lining surrounding the inside of the chest wall and the surface of the lung.

In October 1992, Barry sued OCF and 18 other corporate defendants, claiming that he contracted mesothelioma from his exposure to asbestos-related products they manufactured.

Six months later, in April 1993, Barry died. His wife Eileen, as the representative of Barry's estate, became the plaintiff. The complaint was amended to add survival and wrongful death claims. Eileen and seven children were Barry's "next of kin."

Before trial, all defendants except W.R. Grace Co. (Grace) and OCF were dismissed, either because of settlements or the granting of summary judgment motions. After trial began, Grace settled, leaving OCF as the only defendant. The trial proceeded to the $12 million plus verdict being challenged in this appeal.

OCF contends several trial court errors contributed to the verdict, which reads:

We the jury find for the plaintiff, Eileen P. Barry, executor of the Estate of James Kevin Barry, and against the defendant Owens-Corning Fiberglass. We assess the following damages:

For injuries to James Kevin Barry during the period that James Kevin Barry was alive, from July 13, 1992 until April 26, 1993:

$4,638,430.96, itemized as follows:

Medical Bills and Funeral Expenses $138,430.96

Disability $300,000

Disfigurement $200,000

Pain and Suffering $4,000,000

For loss of income/services as a result of the illness and death of James Kevin Barry. $331,190

For loss of society to Mrs. Barry during the time period that James Kevin Barry was alive, from July 13, 1992 until April 26, 1993: $500,000

For damages to the next of kin of James Kevin Barry as a result of the death of James Kevin Barry:

Eileen P. Barry $3,000,000

Kevin Barry $500,000

Susan Barry Salmon $500,000

Margaret Barry Sheerin ...


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