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Startley v. Welco Manufacturing Co.

Court of Appeals of Illinois, First District, Second Division

May 9, 2017

JO ANN STARTLEY, Individually and as Executor of the Estate of Ronnie A. Startley, Deceased, and on Behalf of Their Children, Plaintiff-Appellant,
v.
WELCO MANUFACTURING COMPANY, Defendant-Appellee.

         Appeal 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 and opinion.

          OPINION

          NEVILLE JUSTICE.

         ¶ 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.

         ¶ 2 BACKGROUND

         ¶ 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 mesothelioma.

         ¶ 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 knowing, really.
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 Bestwall.
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 mesothelioma."

         ¶ 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 mesothelioma.

         ¶ 12 The following exchange took place on cross-examination of Dr. Mark:

"Q. Do you agree that with regard to asbestos fibers, dimension is important, the length and the width of the fiber?
A. To some degree, the longer fibers are more oncogenic than shorter fibers; but beyond that, I wouldn't be able to say. ***
Q. *** Do you agree that fibers shorter tha[n] 5 microns in length have not been proven to cause diffuse ...

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