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Caruso v. M&O Insulation Co.

December 29, 2003

ANTONIO CARUSO AND BEATRICE CARUSO, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
M&O INSULATION COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT, AND SPRINKMANN SONS CORPORATION OF ILLINOIS; ARMSTRONG WORLD INDUSTRIES, INC.; OWENS-ILLINOIS, INC., W.R. GRACE & COMPANY-CONNECTICUT; BRAND INSULATIONS, INC.; A.P. GREEN INDUSTRIES, INC.; RAPID-AMERICAN CORPORATION; UNITED STATES GYPSUM COMPANY; PNEUMO ABEX CORPORATION; METROPOLITAN LIFE INSURANCE COMPANY; T&N LTD.; AND INDUSTRIAL HEALTH FOUNDATION, INC., DEFENDANTS.



Appeal from Circuit Court of Sangamon County No. 00L315 Honorable Donald M. Cadigan, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

UNPUBLISHED

The trial court, during a jury trial, entered a directed verdict for defendant at the close of plaintiffs' case. Plaintiffs appeal. We reverse and remand.

Plaintiff, Antonio Caruso, developed mesothelioma as a result of exposure to asbestos during his work at the City Water, Light and Power Plant (CWLP) in Springfield, Illinois. Plaintiff worked in CWLP's Dallman plant from 1950-52 and from 1955-93. On October 20, 2000, plaintiff brought this action against defendant, M&O Insulation Company (M&O), and other defendants.

M&O is a company that installs and sells insulation. M&O was incorporated in 1972 by Jack McNamara and Richard O'Heir. O'Heir testified in his deposition that M&O had never done insulation work anywhere in the Springfield area. In an affidavit dated January 11, 2002, O'Heir stated that "M&O has never performed any insulating work at the City Water, Light & Power Plant in Springfield, Illinois." Peter Castellarin, M&O's chief financial officer, testified in his deposition that M&O had not done work at CWLP or for the City of Springfield at any time. Castellarin began working for M&O in October 1976.

In a letter dated April 12, 2002, plaintiffs advised M&O they had obtained records from CWLP that showed M&O had done insulation work at CWLP. Castellarin testified that upon his review of the documents, "a big lightbulb went off. As soon as we saw [Dallman], we recognized it, went right back to the books, and did another search." Defendant's job books showed nine entries referencing "Dallman" in Springfield, Illinois. On May 21, 2002, less than two weeks before trial, M&O supplemented its prior discovery responses by admitting it had worked at CWLP and providing documents showing installation jobs and sales to CWLP as early as April 1975.

Castellarin testified that M&O never purchased, installed, or resold asbestos-containing insulation material, that it just happened the company was started in 1972 after the use of asbestos-containing materials were banned. Castellarin recognized, however, that asbestos-containing insulation was sitting in suppliers' warehouses, and suppliers were selling it in 1972. O'Heir testified, "we were the luckiest guys in the world when we started. We just happened to start at a time when [asbestos insulation] was banned and we knew what the story was and we just never got involved in it, so it was never anything that came into practice." However, Melvin Corbeil, the former president of Brand Industries, another defendant, testified that asbestos-free products became available, "I'm going to say somewhere around 1973 or 4." He then conceded it could have been 1974-75, and on cross-examination admitted it could have been as early as 1970. Finally, Corbeil stated, "I'm telling you the best of my recollection was '73 to '74, you know, somewhere around that time."

O'Heir testified:

"[T]he word was on the street, it was all over every place that there was a problem with the asbestos and the products that we've been using for years, and when we were starting the company, we were starting fresh, we would use nothing that contained asbestos. If the boxes weren't marked, if the product wasn't marked, we never touched it, and that was every employee was told that, and it went on right down the line."

Castellarin testified that M&O installed insulation from April 1972 up through the present time. He testified that M&O purchased thermal insulation from Illinois Insulation Company and also directly from Owens-Corning. The products purchased were pipe covering and Kaylo block. Those products at one time contained asbestos. Castellarin testified M&O had no records showing what materials were used on jobs prior to 1995, that M&O had a policy of destroying records after seven years.

On June 3, 2002, the matter proceeded to trial on plaintiffs' negligence claims against M&O, Owens-Illinois, Inc., and Industrial Health Foundation, all other defendants having settled with the plaintiffs or having been dismissed from the case. On June 19, at the close of plaintiffs' case, the trial court directed a verdict in favor of each remaining defendant. As to M&O, the trial court stated, "the evidence just is not there [as to M&O]. There has been no evidence that [M&O] did buy, sell any asbestos." Plaintiffs appeal the trial court's decision to direct a verdict in M&O's favor and its decision to deny plaintiffs' motion for a new trial. We review de novo the grant of a directed verdict. Evans v. Shannon, 201 Ill. 2d 424, 427, 776 N.E.2d 1184, 1186 (2002); City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 633, 668 N.E.2d 601, 604 (1996).

In a jury case, plaintiff must present at least some evidence on every element essential to his cause of action, and if he fails to do so, a directed verdict is appropriate. Gillock v. City of Springfield, 268 Ill. App. 3d 455, 458, 644 N.E.2d 831, 834 (1994). Even if the plaintiff produces some evidence, however, that evidence may lose its significance when viewed in the context of all of the evidence. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 504-05, 229 N.E.2d 504, 510 (1967). Where there is evidence on both sides, a motion for directed verdict may still be granted, but only where all the evidence viewed in a light most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict can ever stand. Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.

A directed verdict is improper where "there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome." Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512, (1992); cf. Kokinis v. Kotrich, 81 Ill. 2d 151, 155, 407 N.E.2d 43, 45 (1980) (procedure in a non-jury trial). In reviewing the evidence, a trial court cannot ignore circumstantial evidence or reasonable inferences of negligence that can be drawn from circumstantial evidence. Grewe v. West Washington County Unit District No. 10, 303 Ill. App. 3d 299, 303, 707 N.E.2d 739, 742 (1999). The use of circumstantial evidence is not limited to those instances in which the circumstances support only one logical conclusion. Circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom, and the facts established by such inferences are considered when an issue is decided as a matter of law or a verdict is directed. Mort v. Walker, 98 Ill. 2d 391, 396-97, 457 N.E.2d 18, 21 (1983).

"While circumstantial evidence may be used to show causation, proof which relies upon mere conjecture or speculation is insufficient." Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 354, 603 N.E.2d 449, 454 (1992). In Thacker, the supreme court held that Manville Corporation was not entitled to a judgment n.o.v., despite the relatively small amount of asbestos it supplied to the UNARCO plant, the large quantity of asbestos supplied from other sources, and decedent's testimony he did not work with the Manville asbestos. Thacker, 151 Ill. 2d at 353, 603 N.E.2d at 455. Plaintiff was able to escape directed verdict, or judgment n.o.v., by her "testimony, albeit slight, ...


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