Court of Appeals of Illinois, First District, Second Division
JO ANN STARTLEY, Individually and as Executor of the Estate of Ronnie A. Startley, Deceased, and on Behalf of Their Children, Plaintiff-Appellant,
WELCO MANUFACTURING COMPANY, Defendant-Appellee.
from the Circuit Court Of Cook County. No. 14 L 2716, The
Honorable James M. McGing, Judge Presiding.
NEVILLE JUSTICE delivered the judgment of the court, with
opinion. Justices Pierce and Mason concurred in the judgment
1 The estate of Ronnie Startley filed a complaint against
Welco Manufacturing Company (Welco), claiming that asbestos
from Welco's products caused Ronnie to contract
mesothelioma. The trial court directed a verdict in favor of
Welco, because no witness could specify how often Ronnie used
Welco's products in his work. We find the evidence
sufficient to create an issue of material fact as to whether
use of Welco's products caused Ronnie to develop
mesothelioma. We also hold that Illinois law applies to this
case, the estate presented sufficient evidence to show that
Welco had a duty to warn users of the dangers of asbestos
dust, and the estate presented sufficient evidence to show
that the specific kinds of asbestos fiber found in
Welco's products caused Ronnie to develop mesothelioma.
Accordingly, we reverse the judgment entered in favor of
Welco and remand for a new trial.
3 Ronnie lived and worked almost all of his life in Alabama.
In his work finishing drywall, he regularly used several
brands of joint compounds that contained asbestos. Ronnie
moved with his family to Illinois in 1965. He worked there
with his cousin, Walter Startley, for three or four months
before returning to Alabama.
4 In 2013, doctors discovered that Ronnie had contracted
mesothelioma. Ronnie filed a complaint against a number of
corporations that manufactured the brands of joint compound
that Ronnie used during his lengthy career. Ronnie died in
2014, and his wife Jo Ann Startley, as executor for
Ronnie's estate, became the plaintiff in the lawsuit. The
estate either dismissed outright or settled with most of the
defendants. When the case came to trial in 2015, only one
defendant, Welco, remained.
5 The estate's amended complaint included no allegations
concerning Ronnie's extensive exposure to asbestos while
he worked in Alabama, because Alabama's statute of
limitations completely barred all of the estate's claims
as untimely. Welco filed a motion for summary judgment, and
the estate filed a response. Both parties attached
transcripts from several depositions to their briefs. Walter,
in his discovery and evidence depositions, explained the work
he and Ronnie did. They came to work sites after other
workers hung the drywall. Walter and Ronnie took 25-pound
sacks of dry joint compound, poured some in a five-gallon
bucket, mixed it with water, and then spread three or four
coatings of the compound on the drywall. They sanded after
each coating, with the most extensive sanding after the final
coating. Walter could see dust from the joint compound both
when they poured the compound in the bucket and when they
sanded the coatings on the drywall. Expert testimony
supported the estate's assertion that the dust from the
joint compounds included asbestos, and that asbestos from the
joint compounds contributed to causing Ronnie to contract
6 Walter estimated that he and Ronnie worked on "close
to 50" commercial sites, plus some houses, in the three
or four months they worked together in Illinois in 1965.
Walter could not recall which brand of joint compound they
used at any specific site. The following exchange took place
during Walter's evidence deposition:
"Q. *** Do you remember the brand names of joint
compounds that you'd use while you were in Chicago in
1965 with Ronnie?
A. USG, Gold Bond, Bestwall and Wel-Cote.
Q. Did you use any of those more than the others?
A. Wel-Cote and Bestwall was the most we used.
* * * Q. *** Earlier your counsel was asking you whether or
not you remembered if one product was on site more than the
other. Do you recall him asking you that?
A. I couldn't because, you know, there's no way of me
Q. *** [Y]ou can't tell me whether or not you recall
there being more jobs that had one product versus the other;
is that correct?
A. Well, I really can't, because *** that's a long
time ago ***, but I remember the bags was being like
gray-looking stuff and I imagine it would be Wel-Cote or-or
Q. *** [C]an you tell me any job site that you remember
Ronnie being on where Bestwall was being used?
A. Lord, I couldn't say that. I don't know, there was
so many jobs back then."
7 Welco argued that because Walter did not recall how
frequently Ronnie used Welco's Wel-Cote joint compound in
Illinois, and he could not specifically identify any
particular job for which they used Wel-Cote, the evidence did
not meet established standards for showing that Welco's
products proximately caused Ronnie to contract mesothelioma.
The trial court denied the motion for summary judgment.
8 At the jury trial, Dr. Richard Lemen testified that the
term "asbestos" refers to several distinct chemical
compounds with some similar properties. A form of asbestos
called "chrysotile" makes up more than 90% of the
asbestos used commercially. Although chrysotile occurs
naturally in long fibers, the fibers break down rapidly in
processing, and relatively short fibers make up the
chrysotile used in most products. Two other forms of
asbestos, amosite and crocidolite, do not break down as
rapidly as chrysotile. Some researchers have concluded that
crocidolite has much greater potency and causes disease at
much lower concentrations than chrysotile. However, according
to Dr. Lemen, "all of the fiber types cause
9 Dr. Lemen testified that scientists started studying the
dangers of asbestos in the 1920s. He said, "by the early
to mid-1930s, the association with the dust was well
established, and methods were laid out to suppress dust in
hopes of reducing the amount of disease." Doctors knew
then of the link between asbestos and both asbestosis and
lung cancer. Mesothelioma occurs more rarely and researchers
did not much study the link between asbestos and mesothelioma
until the early 1960s. But generally, the United States
Public Health Service had established the danger of asbestos
dust by 1964.
10 Dr. Arnold Brody testified that all varieties of asbestos
cause all of the asbestos diseases, including mesothelioma.
He explained in detail the mechanisms by which asbestos
damages the cells around the lungs.
11 Dr. Eugene Mark testified that Ronnie's lifelong work
with joint compounds that contained asbestos caused him to
contract diffuse malignant mesothelioma, and his exposures
over several months of work in Illinois were
"substantial contributing factors" to causing the
12 The following exchange took place on cross-examination of
"Q. Do you agree that with regard to asbestos fibers,
dimension is important, the length and the width of the
A. To some degree, the longer fibers are more oncogenic than
shorter fibers; but beyond that, I wouldn't be able to
Q. *** Do you agree that fibers shorter tha[n] 5 microns in
length have not been proven to cause diffuse ...