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Quirin v. Lorillard Tobacco Co.

United States District Court, N.D. Illinois, Eastern Division

January 8, 2015

MARILYN F. QUIRIN, Special Representative of the Estate of RONALD J. QUIRIN, Deceased, Plaintiff,
v.
LORILLARD TOBACCO COMPANY et al., Defendants.

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, District Judge.

Plaintiff Marilyn F. Quirin ("Plaintiff"), special representative of the estate of Ronald J. Quirin ("Mr. Quirin"), has sued defendants Lorillard Tobacco Company ("Lorillard"), Hollingsworth & Vose Company ("H&V"), and Georgia-Pacific, LLC ("Georgia-Pacific") (collectively, "Defendants") on a negligence theory, alleging that Mr. Quirin developed and died from mesothelioma substantially caused by his exposure to asbestos-containing materials while smoking Kent cigarettes and working with asbestos-containing joint compound manufactured, sold, distributed, or supplied by Georgia-Pacific.[1]

Now before the court is Lorillard, H&V, and Georgia-Pacific's motion for summary judgment on Plaintiff's claim for damages for loss of consortium under the Illinois Wrongful Death Act, 740 ILCS 180/1 - et seq. ("IWDA"). Lorillard, H&V, and Georgia-Pacific argue that Plaintiff cannot establish that Mr. Quirin was exposed to each defendant's asbestos-containing products after his marriage to Plaintiff on February 18, 1977, and thus that Plaintiff is not entitled to damages for loss of consortium under the IWDA. For the reasons discussed below, Lorillard and H&V's motion for summary judgment on Plaintiff's claims for damages for loss of consortium under the IWDA is granted. Georgia-Pacific's motion on the same issue is denied.

I. BACKGROUND

Mr. Quirin was diagnosed with mesothelioma on or about December 27, 2011. In 2012, Mr. Quirin and his wife, Plaintiff, filed a complaint against numerous defendants in the Circuit Court of Cook County, Illinois, alleging claims for injuries caused by asbestos exposures. Mr. Quirin passed away on March 31, 2013, and Plaintiff was appointed his executor. The case was removed to federal court on diversity grounds in April 2013, and Plaintiff filed her Fifth Amended Complaint on April 26, 2013.

The defendants moving for summary judgment on the issue of claims for damages for loss of consortium ("consortium damages") are Lorillard, H&V, and Georgia-Pacific. For purposes of this motion, the court takes the following facts from Lorillard and H&V's Statements of Facts ("SOFs") to the extent that they are supported by admissible evidence and relevant to issues raised in the motion. Plaintiff failed to file a response to Defendants' statement. Pursuant to Rule 56.1(b)(3), the facts contained in Defendants' statement are thus properly admitted. L.R. 56.1(b)(3). Georgia-Pacific did not submit a 56.1 statement. Facts regarding Georgia-Pacific's products are drawn from the amended complaint [41] and Georgia-Pacific's reply brief [400].[2]

From March 1952 until May 1956, Lorillard's business predecessor, P. Lorillard Tobacco Company, manufactured Kent cigarettes with a filter made of cellulose acetate, cotton, crepe paper, and crocidolite asbestos (hereinafter, "original Kents"). From March 1952 until May 1956, H&V's predecessor, H&V Specialties Co., Inc., manufactured asbestos-containing bulk filter media for P. Lorillard Tobacco Company. After May 1956, Kent cigarettes were no longer manufactured with a filter containing asbestos. Mr. Quirin began smoking Kent cigarettes shortly after joining the Navy in 1953 and continued to smoke them until the early 1960s.

Mr. Quirin was also allegedly exposed to an asbestos-containing product that Georgia-Pacific produced in the course of his employment with Illinois Bell. Mr. Quirin worked at Illinois Bell from approximately 1957 to 1986 as an installer and supervisor. During the course of Mr. Quirin's employment, Mr. Quirin was allegedly exposed to and inhaled asbestos fibers from Georgia-Pacific's products. In particular, Plaintiff alleges that Mr. Quirin's asbestos exposure resulted from fibers emanating from joint compound, a substance used in construction. According to Georgia-Pacific, it manufactured two types of joint compound. The first, a "dry-mix joint compound, " consisted of a powder that was mixed with water before use. The second compound, Ready-Mix, was a premixed joint compound that came in liquid form. Georgia-Pacific admits that Ready-Mix did contain a "small amount of asbestos into 1977." (Def.'s Reply at 1, ECF No. 400.) Ready-Mix joint compound was used on job sites that Mr. Quirin visited and worked at during his employment with Illinois Bell.

Mr. Quirin married Plaintiff on February 18, 1977 and remained married until his death from mesothelioma.

II. LEGAL STANDARD

Summary judgment is appropriate when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009). "[A] factual dispute is genuine' only if a reasonable jury could find for either party." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). The court ruling on the motion construes all facts and makes all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).

III. ANALYSIS

1. Lorillard and H&V

Lorillard and H&V argue that they are entitled to summary judgment on Plaintiff's claim under the IWDA for consortium damages because Mr. Quirin was unmarried at the time he was exposed to asbestos-containing Kent cigarettes. Plaintiff argues that because mesothelioma is a "continuous exposure" disease, Mr. Quirin's "thirty-four years of exposure to ...


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