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Johnson v. Owens-Corning Fiberglas

May 12, 2000

VENETTA KAY JOHNSON, INDIVIDUALLY, AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CHARLES E. JOHNSON, DECEASED, PLAINTIFF-APPELLANT,
VS. OWENS-CORNING FIBERGLAS CORPORATION, A. P. GREEN INDUSTRIES, INC., AND SPRINKMANN SONS CORPORATION OF ILLINOIS,
DEFENDANTS-APPELLEES.



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

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

Plaintiff, Venetta Kay Johnson, filed a complaint against numerous defendants alleging that her husband, Charles Johnson, died as the result of exposure to various products that contain asbestos. The trial court entered summary judgment in favor of all defendants. This court affirmed the judgment with respect to some defendants, but reversed with respect to others. Johnson v. Owens-Corning Fiberglass Corporation, 284 Ill. App. 3d 669, 672 N.E.2d 885 (1996). On remand, the trial court directed a verdict in favor of defendants Owens-Corning Fiberglas Corporation (OCF) and Sprinkmann Sons Corporation of Illinois (Sprinkmann). A jury returned a verdict in favor of defendant A.P. Green Industries, Inc. (APG). On appeal, plaintiff contends, inter alia, that the trial court erred: (1) by directing a verdict in favor of OCF and Sprinkmann; and (2) by giving the jury certain special interrogatories requested by APG. For the reasons that follow, we reverse the trial court's judgment with respect to all three defendants and remand for further proceedings.

At the outset, we note that plaintiff raises other issues on appeal in addition to those already stated. However, due to the disposition of the aforesaid claims of error, we decline to address these other issues as their resolution is unnecessary and they are unlikely to arise again on remand.

Charles Johnson worked for Keystone Steel & Wire Company (Keystone) at its plant in Bartonville, Illinois, from 1955 until 1991, when he was diagnosed with lung cancer. Johnson died in October 1991.

The Keystone plant is roughly one mile long and consists of a steel mill, a wire mill, and a mid-mill area that connects the steel and wire mills. The wire mill is approximately one-half to three-quarters of a mile long. Until the early 1980s, Johnson worked in the patenting department located on the wire-mill side of the plant. The patenting department is adjacent to the drawing and galvanizing departments. From the early 1980s until 1991, Johnson worked in the nail mill which is also on the wire-mill side and adjacent to the galvanizing department. Doorways approximately 15 feet high and 20 feet wide separate the various departments. There are overhead doors, but these are only rarely closed.

During Johnson's tenure, Keystone used various materials to insulate its pipes and furnaces. Among other materials, Keystone purchased Kaylo, an insulator manufactured by OCF and distributed by Sprinkmann. Kaylo was 85% calcium silicate and 15% asbestos until 1972, when all asbestos was removed from the product. Kaylo's primary intended use was external pipe insulation. Kaylo was a dry flaky material that emitted substantial amounts of dust when removed from its packaging and anytime it was cut or rasped in order to fit around pipes.

Keystone also purchased Therm-O-Flake, an insulator manufactured by APG. Therm-O-Flake was a powdery material that had to be mixed with water before application. It was 18% asbestos. Keystone's brick masons used Therm-O-Flake to insulate the Keystone plant's furnaces.

At trial, David Schwartz, a physician, testified as an expert witness on behalf of plaintiff. Schwartz testified that asbestos fibers can remain airborne for as long as a month even in undisturbed air. Moreover, asbestos fibers can travel as far as a mile from the point of release.

In addition, Schwartz opined that it is impossible to attribute the cause of any asbestos-related disease to any single asbestos fiber or any specific period of asbestos-fiber inhalation. Rather, with respect to causation, the only conclusion that can be drawn is that every exposure to asbestos substantially increases the risk of developing an asbestos-related disease, including lung cancer.

Harold Molchin, a Sprinkmann insulator, testified that he installed Kaylo while employed by Sprinkmann. Molchin recalled that Kaylo emitted dust whenever it was cut or rasped. Molchin further testified that he installed insulation at Keystone on three occasions: the first in the 1970s; the second at an unspecified time; and the third during the late 1980s. Molchin could not recall whether any of the installation jobs at Keystone involved Kaylo.

Wes Klein, a Sprinkmann truck driver, testified that he made "hundreds" of deliveries to Keystone between 1961 and 1981. Klein estimated that he delivered Kaylo on approximately one-third of these occasions. Klein recalled making deliveries to the wire-mill, as well as the steel-mill, side of the Keystone plant.

Russ Wolstenholme, a Sprinkmann truck driver, testified that he made deliveries to Keystone between 1954 and 1990. Although the frequency of the deliveries varied, there were times that Wolstenholme would deliver materials to Keystone as frequently as twice per week. Wolstenholme made deliveries to the wire-mill and steel-mill sides of the Keystone plant. Wolstenholme testified that he was "comfortable" in stating that Kaylo was among the products he delivered to Keystone.

Siegfried Schubert, a Keystone pipefitter, testified that he removed and installed pipe insulation at the Keystone plant between 1954 and 1974. Schubert testified that he replaced insulation on the wire- mill side "many times." In particular, Schubert remembered replacing insulation in the patenting department, the nail mill, the galvanizing department, and the drawing department. Schubert estimated that he spent most of his time on the wire-mill side and in the mid-mill area of the plant. Schubert recalled seeing bags of Kaylo and reading labels that indicated Kaylo was 85% magnesium and 15% asbestos.

Schubert explained that, when replacing insulation, he usually cut the insulation on the ground in the immediate vicinity of the repair. Schubert also noted that insulation would often fall to the ground while he was replacing the ...


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