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10/29/96 VENETTA KAY JOHNSON v. OWENS-CORNING

October 29, 1996

VENETTA KAY JOHNSON, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CHARLES E. JOHNSON, DECEASED, PLAINTIFF-APPELLANT, CROSS-APPELLEE,
v.
OWENS-CORNING FIBERGLASS CORPORATION, ET AL., DEFENDANTS, AND E.D.BULLARD COMPANY, ET AL., DEFENDANTS-APPELLEES, CROSS-APPELLANTS.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 93-L-544. Honorable John A. Barra, Judge Presiding.

Released for Publication December 11, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice. Presiding Justice Breslin delivered the opinion of the court. Lytton and McCUSKEY, JJ., concur.

The opinion of the court was delivered by: Breslin

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

Venetta Johnson, individually and as Special Administrator of the Estate of Charles Johnson, filed a multi-count complaint against numerous defendants asserting that Charles had contracted lung cancer from exposure to their asbestos-containing products. The trial court granted summary judgment to all defendants on the question of whether Charles' death was caused by exposure to asbestos. We hold that summary judgment was improper on the issue of medical causation because expert opinions based on hypothetical questions in combination with the testimony of co-employees gave rise to a triable question of fact. We also hold that the Lohrmann "frequency, regularity and proximity" test for asbestos product exposure applies at the summary judgment stage. Additionally we hold that summary judgment was improper as to defendants A.P. Green and Sager Glove Company because a triable question remained as to whether their products caused or contributed to Charles' lung cancer. We thus affirm in part, reverse in part and remand.

BACKGROUND

Charles Johnson worked in the wire mill at Keystone Steel & Wire Company in Bartonville, Illinois almost continuously from 1955 until 1991, when he was diagnosed with lung cancer. He died on October 10 of that year. During the years preceding his death, Charles regularly smoked cigarettes.

The parties generated a substantial amount of discovery. Doctors Jeremiah Crabb, Daniel Parr and Revathi Swaminathan were among the physicians deposed in anticipation of trial. Dr. Parr was Charles' family physician. He testified that, assuming Charles had habitually smoked cigarettes and was occupationally exposed to asbestos, both factors would be implicated as causes of Charles' lung cancer. Dr. Jeremiah Crabb, a pulmonologist, testified that in his opinion, assuming there had been occupational exposure in addition to cigarette usage, both factors could be implicated as "co-carcinogens." Dr. Revathi Swaminathan, an oncologist, testified in her deposition that she had insufficient factual data to state with a reasonable degree of medical certainty whether asbestos played any role in causing Charles' cancer. However, Dr. Swaminathan also stated that, assuming that there was exposure to asbestos, such exposure would be a contributing factor in causing Charles' lung cancer. In addition, Dr. Swaminathan signed an affidavit which was attached to plaintiff's response to defendants' motions for summary judgment. Therein Dr. Swaminathan stated that, in her opinion, occupational exposure to asbestos was a cause of Charles' lung cancer and lung cancer was the cause of his death.

In addition to testimony from physicians, the parties deposed several of Charles' co-employees from the Keystone plant. The employees testified about the various products used in the plant, and some employees testified as to when and where products were used with relation to Charles.

Because the facts in this case are involved and complex, we will make references to specific parties and any additional relevant facts in the appropriate portion of the discussion below. We note, however, as the parties have pointed out, that the trial court made an error in its order when it stated that Charles worked in the steel mill. We acknowledge the error and review this case de novo knowing that Charles was employed in the wire mill.

Most of the defendants moved for summary judgment following discovery, arguing that no material issue of fact existed concerning medical causation. The defendants asserted that plaintiff could not put forth evidence demonstrating that Charles' death resulted from exposure to asbestos products rather than his smoking habits. Additionally, certain defendants moved for summary judgment on the basis that no issue of material fact existed concerning whether Charles had been exposed to their products. On December 8, 1995, the trial court entered an order granting summary judgment to all defendants. The court concluded that the evidence was insufficient to maintain an action for an injury caused by exposure to asbestos dust. Furthermore, the court granted several defendants summary judgment on the additional basis of insufficient evidence of product exposure. The plaintiff appeals the court's order granting summary judgment and defendant E.D. Bullard cross-appeals the trial court's decision not to award it summary judgment on the issue of successor liability as well as medical causation.

SUMMARY JUDGMENT

It cannot be said too often that summary judgment is a remedy which should be granted with caution. It should only be granted when the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1994); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 313 N.E.2d 457 (1974). This Court's review of an order granting summary judgment is de novo. Andrews v. Cramer, 256 Ill. App. 3d 766, 629 N.E.2d 133, 195 Ill. Dec. 825 (1993).

CAUSATION

In an asbestos case based upon negligence or strict products liability, it is essential that plaintiff prove that the defendant's asbestos was the "cause-in-fact" of the injury. Causation evidence may be direct or circumstantial; the latter type must justify an inference of probability rather than possibility. Naden v. Celotex Corp., 190 Ill. App. 3d 410, 546 N.E.2d 766, 137 Ill. Dec. 821 (1989). However, the plaintiff has two burdens with respect to causation-in-fact. First, the plaintiff must prove medical causation -- that asbestos was a cause of the injury. Second, plaintiff must show that the defendants' asbestos was a cause of the decedent's injuries. Thacker v. UNR Industries, 151 Ill. 2d 343, 603 N.E.2d 449, 177 Ill. Dec. 379 (1992). In this case, both of the plaintiff's burdens are at issue.

1. Medical Causation

We are first concerned with whether there is sufficient evidence in the record for the plaintiff to meet her burden of proving that asbestos exposure caused or contributed to Charles' lung cancer. The defendants contend that the record demonstrates that the ultimate cause of death was Charles' smoking habit, not any exposure to asbestos, and that ...


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