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Spain v. Owens Corning Fiberglass Corp.

April 29, 1999

SHIRLEY SPAIN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF MARSHAL L. SPAIN, JR., DECEASED, PLAINTIFFS-APPELLEES,
v.
OWENS CORNING FIBERGLASS CORPORATION, A DELAWARE CORPORATION, DEFENDANT-APPELLANT, AND THE CELOTEX CORPORATION, A DELAWARE CORPORATION, KEENE CORPORATION, A DELAWARE CORPORATION, PITTSBURGH CORNING CORPORATION, A DELAWARE CORPORATION, SOUTHERN ASBESTOS, A DELAWARE CORPORATION, RAYMARK INDUSTRIES, INC., A DELAWARE CORPORATION, FIBREBOARD CORPORATION, A DELAWARE CORPORATION, OWENS-ILLINOIS, INC., F/K/A OWENS-ILLINOIS GLASS COMPANY, AN OHIO CORPORATION, FLINKOTE COMPANY, A DELAWARE CORPORATION, AND A.E. STALEY COMPANY, A DELAWARE CORPORATION, DEFENDANTS.



Appeal From Circuit Court of Macon County No. 88L79

The opinion of the court was delivered by: Presiding Justice Knecht

Honorable John K. Greanias, Judge Presiding.

Plaintiff, Shirley Spain, as administrator of the estate of her husband, Marshal L. Spain (decedent), sued numerous manufacturers of asbestos-containing products, including Owens Corning Fiberglass Corporation (OC). Her complaint alleged the manufacturers were responsible for decedent's injuries and later death. Before trial, all defendants but OC settled or were dismissed. A jury returned a verdict against OC, awarding plaintiff $1.8 million.

OC appeals, arguing (1) the evidence establishing proximate cause was insufficient as a matter of law; (2) the trial court erred when it prohibited OC from introducing evidence of decedent's exposure to other manufacturers' asbestos; (3) plaintiff opened the door to admission of decedent's exposure to other manufacturers' asbestos; (4) the court abused its discretion when it refused OC's proximate cause instruction; and (5) the court erred when it refused to grant a new trial or a re-mittitur. We affirm.

I. BACKGROUND

Decedent died in June 1988 of complications from mesothelioma, an asbestos-related lung disease. Before trial, OC moved in limine re-questing it be allowed to present evidence of decedent's other exposures to asbestos products not manufactured by OC. OC alleged this evidence supported its defense a third party was the sole proximate cause of decedent's injury and death. The court denied the motion.

At the September 1997 trial, a portion of decedent's video-recorded deposition was played for the jury. He stated he began working at A.E. Staley grain processing plant in Decatur, Illinois, in January 1957. After six months, he was assigned to building number nine, the feed house, where he operated and maintained the grain dryers.

Decedent stated the feed house was six stories tall with miles of piping running through it, a third of which was insulated, and he worked near or directly with other machinists working on the pipes. When the machinists worked on the pipes, they would strip off and replace the old insulation. Frequently, decedent was standing within two to three feet of them during this process and he would get dusty. Decedent also stated the machinists used round pipe and sheet insulation, both of which created dust when cut.

Decedent indicated the work was part of his regular routine during the 1960s and 1970s. During this time, he saw OC's insulation boxes in the feed house. Before retiring in 1986, he began having trouble breathing. Shortly thereafter, an operation revealed tumors along decedent's lungs.

OC sought to admit decedent's testimony concerning his other exposures to asbestos, including his experiences working as a pipefitter's helper for Wabash Railroad and removing old asbestos-containing firebrick from Staley's grain dryers without a mask or respirator. The court refused to admit this evidence pursuant to Lipke v. Celotex Corp., 153 Ill. App. 3d 498, 509, 505 N.E.2d 1213, 1221 (1987).

Dr. Michael Zia, decedent's pulmonologist, diagnosed him with mesothelioma. Dr. Zia testified mesothelioma can be attributed to a single exposure to asbestos and occurs when an asbestos fiber penetrates the lung and reaches the pleura. However, due to the lung's ability to remove foreign particles, mesothelioma is likely to result from an intense exposure, starting in one spot and spreading. Dr. Zia stated the more asbestos a person is exposed to the greater the risk of developing mesothelioma. OC sought to admit Dr. Zia's testimony concerning decedent's asbestos exposure at Wabash. The court refused OC's request. See Lipke, 153 Ill. App. 3d at 509, 505 N.E.2d at 1221.

Dr. Gerald Kerby, the defendant's expert pulmonologist, provided a similar summary of mesothelioma's cause. Dr. Kerby also stated mesothelioma has a latency period of 20 to 40 years.OC sought to admit Dr. Kerby's opinion concerning decedent's asbestos exposure at Wabash. The court again refused. See Lipke, 153 Ill. App. 3d at 509, 505 N.E.2d at 1221.

Dr. Joel Bender, OC's vice-president of health sciences and chief medical officer, testified (1) particles of asbestos can be invisible to the naked eye, (2) mesothelioma is rare among persons not exposed to asbestos, (3) the maximum distance asbestos fibers can travel through the air and the level of asbestos exposure at which mesothelioma will not occur are not known, (4) asbestos fibers can be carried by exposed workers throughout a work site, and (5) all of a person's exposure to asbestos can be implicated as the cause of an asbestos disease.

Dr. Jon Konzen, medical director at OC from 1968 to the early 1990s, stated OC knew asbestos dust was hazardous to humans since the 1940s. However, OC did not warn the public until 1976 or 1977, after it stopped adding asbestos to its insulation products. Other testimony revealed during the 1950s, 1960s, and 1970s, OC manufactured Kaylo pipe insulation (Kaylo), which contained 12% to 22% asbestos. Also, cutting Kaylo released asbestos dust into the air.

Ellis Carlton testified he worked for Sprinkmann Insulation, an authorized distributor of OC's products, from 1958 to 1994. Carlton stated Sprinkmann sold more OC insulation during the 1960s and 1970s than any other brand. Sprinkmann sold OC's insulation to Staley's during this time.

Wesley Klein, a truck driver for Sprinkmann, stated he made at least 20 trips to Staley's during the 1960s and 40 to 50 trips during the 1970s. Klein hauled Kaylo and block insulation. The insulation was either immediately applied by Sprinkmann's pipefitters or Staley's employees, or it was stored at Staley's. Klein hauled more Kaylo than any other pipe insulation. Russell Wolstenholme, another driver for Sprinkmann, stated he delivered insulation, including Kaylo, to Staley's and made more than 50 trips from 1954 to 1964.

Ray Virden, who worked for Staley's from 1955 to 1995, stated he and decedent worked together in the feed house. The feed house was four stories tall, 200 feet or more wide, and full of steam lines. The doors and windows of the feed house were frequently left open, and dust was visible in the air. The feed house's interior was wide open, except for a few machines and grain dryers. Virden indicated the steam pipes were covered with insulation and he witnessed insulation being removed, replaced, or repaired on several occasions.

Ellis Long, an insulator for Sprinkmann during the 1960s and 1970s, testified he installed more Kaylo at Staley's than any other product. He stated working with Kaylo created dust, which was visible on his hair and clothing. Further, Long specifically recalled one incident when he installed Kaylo in the feed house. On cross-examination, Long stated he did not recall removing insulation at Staley's and he assumed he used Kaylo in the feed house because it was the product Sprinkmann preferred.

At the close of plaintiff's case and at the end of the trial, OC moved for directed verdict, arguing plaintiff failed to prove causation. The court denied both motions. The jury returned a verdict for plaintiff, awarding her $1.8 million in damages on which the court entered judgment. OC filed a timely posttrial motion ...


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