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Amy Zickuhr, Individually and As v. Ericsson

September 30, 2011


Appeal from the SpecialCircuit Court of Cook County. 08 L 005433 Honorable Richard Elrod, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

2011 ILL App (1st) 103430

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.

Justices Garcia and Lampkin concurred in the judgment and the opinion.


¶ 1 Following a jury trial, the jury awarded Richard Campbell's estate $1.5 million dollars in damages as a result of defendant Ericsson, Inc.'s negligence in causing Richard's mesothelioma death from exposure to defendant's asbestos-containing electrical cables. Ericsson later filed a posttrial Motion for Judgment Notwithstanding the Verdict or alternatively, for a New Trial, which was denied.

¶ 2 On appeal, defendant contends the trial court erred in denying its posttrial motion because: (1) the evidence established that the cable the decedent worked with lacked asbestos;

(2) plaintiffs failed to establish that the cable was the cause of the decedent's mesothelioma; (3) the trial court's exclusion of the OSHA regulations prejudiced defendant; (4) plaintiffs' improper statements during closing arguments were prejudicial and deprived defendant of a fair trial; and

(5) the trial court abused its discretion by allowing plaintiffs' controlled expert Dr. Steven Dikman to testify that defendant's cables were a contributing cause of the decedent's mesothelioma. We affirm.


¶ 4 Plaintiffs Richard Campbell (the decedent) and his wife Florence Campbell brought this negligence action against defendant on a claim that the decedent developed mesothelioma from exposure to asbestos-containing electrical cable manufactured by defendant. The decedent was diagnosed with mesothelioma in March 2008 and subsequently died from the illness on February 1, 2009. Plaintiffs' complaint was amended in February 2009 to include wrongful death and survivor counts.

¶ 5 From 1955 to 1985, the decedent worked at U.S. Steel's South Works plant, where he drove a boom truck for the electric shop and performed maintenance functions. The position required the decedent to repair industrial wire, replace burnt cables, pull cable in and out of pipe conduit and take scrap cable to the salvage yard. Such duties involved the cutting and stripping of electrical wires and cables. The decedent claimed that his work produced asbestos dust that he disposed of using a coal shovel at the end of each workday.

¶ 6 The wire and cable used at South Works plant was originally manufactured and sold by Anaconda Wire and Cable Company (Anaconda). In 1974, Anaconda acquired Continental Wire and Cable (Continental) and in approximately 1980, Ericsson acquired Anaconda. Plaintiffs allege the wire and cable Anaconda sold to South Works contained asbestos. Plaintiffs further allege that as Anaconda's successor-in-interest, the defendant was negligent in failing to adequately warn of the dangers of asbestos exposure when using its products.

¶ 7 Plaintiffs originally brought action against several additional defendants for selling other asbestos-containing products to South Works without proper warning of asbestos danger. The other defendants settled, leaving Ericsson as the only remaining defendant at trial. After the jury verdict, the trial court entered judgment on the verdict but reduced the award to $560,000 to give the defendant credit for setoffs due to the prior settlements. Plaintiffs' case was consolidated with the case of Raymond Scott and Gail Scott v. Ericsson, Inc., No. 08 L 13715, and the jury found in favor of Ericsson and against the Scott estate. The Scott estate did not appeal that decision. Raymond Scott was a union electrician who developed mesothelioma after working at U.S. Steel from 1970 until its close.*fn1

¶ 8 A. The Trial

¶ 9 1. Decedent's Testimony

¶ 10 Prior to his death, the decedent testified in a videotaped deposition to working with Anaconda's electrical wire at U.S. Steel, which contained asbestos. He recalled observing Anaconda cable in the 1950s and 1960s that designated "Anaconda" printed on its cable jackets and on the cable. The decedent testified that he knew the Anaconda cable was insulated with asbestos because the word "asbestos" was printed on its cable reels also. The decedent did not recall working with any product labeled "Continental."

¶ 11 The decedent testified that he worked with Anaconda wire and cable containing asbestos from 1955 to 1984 at U.S. Steel. He was diagnosed with mesothelioma in March 2008. The decedent testified that he stripped cable every day and would take the scrap cable out to the salvage yard and use shredders to strip the cable. He testified to stripping miles of cable. He would first shave off the insulation that covered the wires in the cable to save the copper core for salvage. His cable stripping work took place in a shanty where the shredding machine was located. During the shredding process, the shanty became so dusty that he "couldn't breathe." The dust from the cable shredding would cover him from head to toe, and the dust attached onto his clothes and hair. In addition, the decedent testified that as part of his maintenance duties he would repair old industrial wire, which involved stripping the wire and installing lug nuts and cleaning the end of the cable with a knife when the cable burned up, and again removing the insulation. The decedent testified that cables used for electrical power in the plant frequently burned up and had to be replaced. These processes also created dust as well. When decedent pulled the wires and cable through conduit, dust was also created because debris would accumulate in the conduit and created dust when the cable was pulled. The decedent remembered seeing reels of Anaconda asbestos wire at U.S. Steel in the 1960s, but could not definitively recall seeing it there in the 1970s, but he did pull out old cable and wire on a continuous basis up till 1984. He knew the Anaconda wire was asbestos-insulated because he observed the word asbestos on the reels.

¶ 12 2. Raymond Scott's Testimony

¶ 13 Raymond Scott testified via videotaped disposition on behalf of plaintiffs that while working at U.S. Steel beginning in the 1970s, he observed cable spools that read "asbestos Continental Cable Company." Scott testified that by stripping these cables, dust was produced and the workmen who stripped these cables were exposed to this dust on a daily basis for years. Scott also contracted mesothelioma and died prior to trial.

¶ 14 3. Erich Kothe's Testimony

¶ 15 Erich Kothe, an engineer employed by Anaconda from 1951 to 1986, testified in a videotaped evidence deposition on behalf of plaintiff as a corporate representative of defendant. Kothe helped develop Anaconda's wire and cable products. He testified that Continental manufactured asbestos-containing wire from 1946 to 1984. He testified that chrysotile was the type of asbestos Continental used.

¶ 16 Kothe noted that although Anaconda acquired Continental in 1974, Anaconda stopped producing asbestos-containing cable in 1946, except by special order and that was usually varnished cambric cable, which was produced into the 1950s. Kothe testified that not only was wire with asbestos a health hazard, it was an unsuitable material in wiring cable and he does not know why it was even used. He testified the word "asbestos" was never printed on any of Anaconda or Continental cable reels. He further testified that while he was employed at Anaconda, the company did not have the technology to print the name "Anaconda" directly on any cable jackets, the cable, or on the reels that contained asbestos.

¶ 17 Kothe testified that in the 1970s he visited the factory in Mexico where Continental added asbestos to its wire. He observed that Continental was coating wire with asbestos and did so from 1970 to 1984. Kothe testified that the Continental personnel would wear respirators around the asbestos because of the asbestos dust in the atmosphere. The Mexican factory also had a ventilation system to keep the dust from penetrating the rest of the factory "for the health of the employees." The personnel that handled the asbestos wore spacesuits, in which their head was totally enclosed with air pumped into their suits in order to avoid any exposure to the asbestos dust.

¶ 18 Kothe testified that the first test defendant conducted concerning asbestos's dangers occurred in the 1990s as a result of an asbestos lawsuit against Ericsson. At that time, the tests were performed on Anaconda wire, but it has never been performed on Continental wire. Defendant's lawyers had the test performed. They found some asbestos fibers were released into the air when wire from a reel labeled "Anaconda" was stripped. However, Kothe testified that when Anaconda sold varnish-cambric cable that contained asbestos, it did not believe the product was hazardous because it contained saturated asbestos as opposed to raw asbestos. Kothe testified that defendant knew its customers would cut and strip its wires, but said those actions released such small amounts of asbestos that it would not cause disease. Kothe conceded that Anaconda's own corporate literature stated "Anaconda Continental." These brochures referenced asbestos-containing wire and were offered and received in evidence and published to the jury. Kothe confirmed that when wire is pulled through conduit, the casing can become damaged.

¶ 19 4. Dr. Steven Dikman's Testimony

¶ 20 Dr. Steven Dikman, a pathologist, was plaintiffs' controlled expert practicing pathology at Mount Sinai Hospital in New York City since 1969. Dr. Dikman testified that Mount Sinai Hospital conducts a significant amount of clinical and experimental research investigating asbestos effects. Dr. Dikman testified that exposure to any type of asbestos can cause mesothelioma.

¶ 21 Dr. Dikman was asked a hypothetical question to establish the causation of decedent's mesothelioma. Ericsson objected based on Illinois Supreme Court Rule 213 grounds. The trial court overruled the objection and Dr. Dikman opined that plaintiff's occupational exposure to significant asbestos dust would be a contributing factor to mesothelioma. Dr. Dikman testified that exposure to asbestos "may be present for 50 years [in the pleura or lung area] after exposure."

¶ 22 5. Dr. Arnold Brody's Testimony

¶ 23 Dr. Arnold Brody is currently a professor of molecular and biomedical sciences at North Carolina State University with a master's degree in anatomy and a doctorate degree in cell biology who previously participated in the University's toxicology curriculum. Dr. Brody testified as a controlled expert for plaintiffs. Dr. Brody opined that all types of asbestos can cause all of the asbestos-related diseases including mesothelioma, that it is the asbestos that escapes the product and is inhaled that causes the disease. Dr. Brody opined that, based on his research chrysotile asbestos alone causes mesothelioma. Dr. Brody testified "we find chrysotile asbestos in the lungs of people decades after they've died." But, he noted the asbestos concentration in ambient air is small enough to breathe without risking disease. Dr. Brody also testified that he possessed no knowledge on the specific mechanics of wire products.

¶ 24 6. Regis Lageman's Testimony

¶ 25 Regis Lageman testified on behalf of plaintiff as an adverse witness and also as defendant's corporate representative most knowledgeable on what defendant knew concerning asbestos' health risks. Lageman holds a Bachelor of Science degree in electrical engineering from Johns Hopkins University and worked closely with defendant's cable and wire as he transitioned through the positions of specifications engineer, product engineer, and senior process engineer at Continental from 1967 to 1977. Lageman testified that the defendant is the entity responsible for all prior Anaconda and Continental products. He verified Continental produced some asbestos-containing wire until 1984. He testified that asbestos-containing wires were labeled "asbestos; varnish Cambric asbestos-insulated wire" on the spools. But, Lageman testified that the wires had no warning labels, because the company believed no dangerous fibers were released when cutting or stripping the wire. He testified that the defendant waited until the 1990s to test its asbestos-containing wire, because the defendant had no evidence fibers were being released prior to the 1990s asbestos lawsuit against Ericsson.

¶ 26 Lageman testified that U.S. Steel was a "big customer" of defendant's soaking pit wire, which was partially composed of asbestos. Lageman testified that the majority of asbestos used was chrysotile asbestos and used for soaking pits in steel mills. Each spool of soaking pit wire would contain nearly a mile's length of wire. Lageman acknowledged that the wire and cable that the decedent described that he stripped would have contained asbestos, but based on the same description, it was not wire that was sold by defendant. He testified that the defendant did not presently have records indicating where defendant had sent its asbestos-containing wire and cable.

¶ 27 7. OSHA Regulations

¶ 28 The defendant attempted to introduce into evidence the asbestos regulations of the Occupational Safety and Health Administration (OSHA), claiming OSHA regulations showed the asbestos-containing wire did not require a warning label because the fiber it foreseeably released fell within the permissible exposure limit. Plaintiffs objected and the trial court excluded this evidence, citing that OSHA regulations apply only to employer-employee relationships, and since the decedent was not defendant's employee, OSHA regulations were irrelevant.

¶ 29 8. Closing Arguments

¶ 30 During closing arguments, plaintiffs asked the jury to award damages within the range of $7 to $14 million dollars. Plaintiffs then said, "It's a total win for this corporation if you don't come back with a substantial verdict. It's an absolute win." Defendant objected. After sustaining the objection, the trial judge admonished the jury by saying, "What is a win or a loss I think is irrelevant. What is relevant is if you find that the defendant is liable then the plaintiffs are entitled to be fairly [compensated] for their losses. Who wins or loses is not the issue here."


¶ 32 On appeal, defendant contends that the trial court erred in denying its posttrial motions for judgment notwithstanding the verdict or alternatively, for a new trial because (1) the evidence established that the cable and wire the decedent worked with lacked asbestos; (2) that plaintiff failed to establish that defendant's cable and wire was the cause of decedent's mesothelioma; (3) that defendant was prejudiced by the exclusion of the OSHA regulation; (4) that defendant was prejudiced and deprived of a fair trial by plaintiff's improper statements during closing arguments; and (5) that the trial court erred by allowing plaintiff's controlled expert, Dr. Steven Dikman to testify that defendant's cable and wire was a contributing cause of the decedent's mesothelioma when that testimony was not disclosed under Illinois Supreme Court Rule 213.

¶ 33 A. Judgment Nothwithstanding the Verdict

¶ 34 The defendant first argues that the trial court's judgment must be reversed and a judgment should be entered in favor of defendant notwithstanding the jury verdict, claiming (1) that there was no evidence that defendant's cable and wire contained asbestos; and (2) no evidence that the cable and wire caused mesothelioma and decedent's death.

¶ 35 Judgments notwithstanding the verdict are proper only where all the evidence viewed most favorably to the opponent so overwhelmingly favors the movant that no contrary verdict could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). It is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses and to decide what weight should be given to the witnesses' testimony. Maple, 151 Ill. 2d at 452. On review of a trial court's decision to deny a motion for a judgment notwithstanding the verdict, all of the evidence must be reviewed in a light most favorable to the opponent of the motion. Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 353-54 (1992). A court does not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather "it may only consider the evidence andany inferences therefrom, in the light most favorable to the party resisting the motion." Mizowek v. DeFranco, 64 Ill. 2d 303, 309-10 (1976). A judgment notwithstanding the verdict is not appropriate if "reasonable minds might differ as to the inferences or conclusions to be drawn from the facts provided." Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995).

¶ 36 In a cause of action for negligence or strict product liability arising from alleged exposure to asbestos, a plaintiff must prove that the defendant's asbestos was the cause in fact of the injury. Thacker, 151 Ill. 2d 343, 354 (1992). To prove causation in fact, the plaintiff must prove medical causation, i.e., that exposure to asbestos caused the injury, and that it was the defendant's asbestos-containing product which caused the injury. Thacker, 151 Ill. 2d at 354.

¶ 37 To meet this burden, a plaintiff must show that the injured party was exposed to the defendant's asbestos through proof that he regularly worked in an area where the defendant's asbestos was frequently used and the injured party worked in sufficient proximity to this area so as to come into contact with the defendant's product. Thacker, 151 Ill. 2d at 354. This test is often referred to as the "frequency, regularity and proximity" or "substantial-factor" test.

ΒΆ 38 This was a highly contested case and the jury verdict was based on who the jury believed was telling the truth. In the case at bar, the decedent testified that he worked with asbestos-containing Anaconda wire from 1955 to 1984 at U.S. Steel. He drove a boom truck for the electric shop and performed maintenance functions which included repairing industrial wire, replacing burnt cables, pulling wire cable in and out of pipe conduit and transporting scrap cable to the salvage yard. The decedent's duties involved the cutting and stripping of electrical wires and cables. The decedent ...

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