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10/18/96 OTTO KESSINGER ET AL. v. GREFCO

October 18, 1996

OTTO KESSINGER ET AL., APPELLEES,
v.
GREFCO, INC., APPELLANT.



The Honorable Justice McMORROW delivered the opinion of the court. Justice Harrison, specially concurring.

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this appeal we are asked to determine whether the appellate court misapplied the doctrine of offensive collateral estoppel when it reversed a jury verdict in favor of defendant and remanded the cause for a new trial. The seven plaintiffs are four male employees of Union Asbestos and Rubber Company (UNARCO) or its successor, Owens-Corning Fiberglas Corporation, and the wives of three of the employees. Defendant, Grefco, Inc., and its predecessor supplied diatomaceous earth, a type of silica, to UNARCO and Owens-Corning for industrial uses, including the manufacture of hardboard insulation and pipe covering. During their employment in the 1950s and 1960s, the four male plaintiffs were exposed to both asbestos and diatomaceous earth atUNARCO's plant in Bloomington, Illinois. They filed suit claiming, inter alia, that Grefco had breached a duty to warn them of the risk of contracting pulmonary fibrosis from inhaling dust from diatomaceous earth. The female plaintiffs sought damages based on loss of consortium.

Before trial, plaintiffs moved the trial court to bar Grefco from claiming that pulmonary fibrosis cannot be caused by exposure to natural diatomaceous earth. In support, plaintiffs cited Kessinger v. Grefco, Inc., No. 85--3092 (C.D. Ill. 1987) (unpublished order), aff'd, 875 F.2d 153 (7th Cir. 1989) (Kessinger). In Kessinger, a UNARCO employee from the same Bloomington plant that employed plaintiffs recovered damages based on the theory that he developed pulmonary fibrosis from exposure to products or dust containing diatomaceous earth, and that Grefco breached a duty to warn of such risk, proximately causing the employee's injuries. In the instant case, the trial court granted plaintiff's request to bar Grefco from contesting that diatomaceous earth could cause silicosis, the type of pulmonary disease that can result from exposure to diatomaceous earth. The trial court also granted plaintiff's motion to preclude Grefco from arguing that its predecessor, rather than Grefco, was responsible for the sales of diatomaceous earth to the UNARCO plant where plaintiffs worked. However, the trial court denied plaintiffs' subsequent requests to additionally estop Grefco from arguing to the jury that natural diatomaceous earth could not cause fibrosis because plaintiffs were not miners with long-term exposure to the earth dust but instead were employed at an "end use" manufacturing site where exposure to the diatomaceous earth was limited in duration and intensity.

Following trial, the jury returned a verdict in favor of Grefco and against all plaintiffs. In their answers to special interrogatories, the jury found that none of thefour male plaintiffs suffered from silicosis. Plaintiffs appealed, asserting four instances of trial error. The appellate court held that reversible error occurred with respect to the applicability of the collateral estoppel doctrine and remanded for new trial, observing, "Some of the error that resulted has been waived, but its total effect requires the grant of a new trial." 273 Ill. App. 3d 275, 285, 652 N.E.2d 1203, 210 Ill. Dec. 227.

We granted Grefco's petition for leave to appeal (155 Ill. 2d R. 315) and granted the Illinois Manufacturers' Association leave to file an amicus curiae brief in support of Grefco. 155 Ill. 2d R. 345. For the reasons that follow, we reverse the judgment of the appellate court.

BACKGROUND

The male plaintiffs' employer, UNARCO, manufactured insulation products. Trial evidence revealed that from the 1950s to the early 1970s, a combination of asbestos and diatomaceous earth were used in the manufacture of some of these products. The four male plaintiffs had worked for the plant for differing periods of time. The longest employment of any of the male plaintiffs was approximately five years, from 1965 to 1970. The other three employees had worked for the plant for considerably shorter periods ranging from a few months to approximately a year. Grefco was responsible for the sale of diatomaceous earth, packaged under the label "Dicalite," and did not supply any asbestos or other products. The instant appeal of Grefco does not involve asbestos-related injuries.

In their complaints, plaintiffs alleged that they developed pulmonary fibrosis from workplace exposure to diatomaceous earth. At trial, plaintiffs identified silicosis as the specific type of pulmonary fibrosis for which plaintiffs sought damages from Grefco. Silicosis was defined at trial as a scarring of the lungs caused by inhalation of silica, a type of mineral dust found in diatomaceousearth. According to plaintiffs, they developed silicosis by inhaling dust from the diatomaceous earth that Grefco supplied in 50-pound bags to the Bloomington UNARCO plant. The evidence indicated that some of the bags of diatomaceous earth carried warnings while others did not. According to plaintiffs, Grefco proximately caused their illnesses by negligently breaching a duty to warn end users, such as plaintiffs, of the risks of developing silicosis by inhaling dust from diatomaceous earth.

Dr. Herbert Abrams, board certified in preventative medicine and public health, testified for plaintiffs. Based on his study of the medical records, chest X rays, and CAT scans of the four male plaintiffs, he believed that all four had developed both asbestosis and silicosis.

Dr. Robert Jones and Dr. David Cugell testified for Grefco. Dr. Cugell is director of the pulmonary function laboratory at Northwestern Memorial Hospital in Chicago. Dr. Jones is a professor at Tulane Medical School who limits his practice to lung diseases. Both doctors examined the chest X rays and CAT scans of the four male plaintiffs. They concluded that almost all of the fibrosis shown thereon began in the lower part of the lungs, thereby indicating the presence of asbestos-related conditions rather than silicosis. Drs. Jones and Cugell testified that they found no evidence of silicosis on any of the X rays.

The former plant manager of UNARCO, Edward Weaver, testified in Grefco's defense. According to Weaver, workers at the plant were given medical examinations out of concern for asbestosis, but he was never aware that there was a hazard associated with breathing diatomaceous earth dust. Other evidence produced by Grefco indicated that natural diatomaceous earth poses no significant health hazards outside the mining and milling processes in which exposure to dust is prolonged and continuous.

According to Grefco, exposure to natural diatomaceous earth dust could cause silicosis in miners and those involved in the mining and milling process only if inhalation of the dust was intensive and continuous for long periods of time. In contrast, end users of the product, such as those persons involved in manufacturing the insulation products from the diatomaceous earth at the UNARCO plant, were highly unlikely to contract silicosis, particularly if their exposure to the dust was infrequent or of short duration.

Grefco also presented evidence distinguishing between the health risks associated with the natural form of diatomaceous earth, which Grefco supplied to UNARCO, and the calcined form, which Grefco did not supply to UNARCO. According to the evidence presented, calcined diatomaceous earth results from a process of heating the earth at very high temperatures, which partially converts the earth to a crystalline substance. When the calcined diatomaceous earth is cut for industrial use, the resulting dust apparently can pose a significant health hazard to persons exposed for a period of two to five years.

In addition to its primary defense that plaintiffs did not have silicosis and that Grefco did not breach a duty to warn of dangers resulting from natural diatomaceous earth dust, Grefco raised the affirmative defense of intervening causation. This defense was based on the theory that at the time the four men worked at the UNARCO plant, their employers knew or should have known that the plant was using "fibrotic raw materials" and that workers' exposure to the materials should have been minimized by the taking of adequate safety measures at the workplace. According to Grefco, UNARCO's acts or omissions in regard to safety measures were not foreseeable by Grefco and constituted the intervening proximate cause of plaintiffs' injuries.

At the request of Grefco, the trial court tendered to the jury special interrogatories for each male plaintiff asking whether the jury found that the plaintiff had developed silicosis and, if so, whether his silicosis was proximately caused by exposure to diatomaceous earth. ...


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