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Daniels v. Arvinmeritor, Inc.

Court of Appeals of Illinois, First District, Fourth Division

December 19, 2019

Sharon DANIELS, Individually and as Special Administrator for the Estate of Patrick M. O' Reilly, Deceased, Plaintiff-Appellee,
ARVINMERITOR, INC.; CBS Corporation, f/k/a Viacom, Inc., Merger to CBS Corporation, f/k/a Westinghouse Electric Corporation; Crane Co., Individually and as Successor in Interest to Cochrane, Inc., a/k/a Jenkins Valves, Inc., and Successor in Interest to Chapman Valves; CSR, Ltd., a/k/a Consolidated Sugar and Refining; Flowserve Corporation, Individually and as Successor in Interest to BW/IP International, Inc., f/k/a Byron Jackson Pump Division and Successor in Interest to Edward Valves; Foster Wheeler Energy Corporation, Individually and as Successor in Interest to C.H. Wheeler; General Electric Company; John Crane, Inc.; Metropolitan Life Insurance Company; Trane U.S., Inc., f/k/a American Standard, Inc.; and Weil-McLain Company, Defendants (John Crane, Inc., Defendant-Appellant).

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          Appeal from the Circuit Court of Cook County, No. 16-L-11308; the Review Hon. Clare E. McWilliams, Judge, presiding.

          Michael A. Pollard, Michael C. McCutcheon, Michael D. Lehrman, of Baker & McKenzie LLP, of Chicago, for appellant.

          Klint L. Bruno, of The Bruno Firm LLC, of Chicago, and Jennifer Gelman, Ethan Flint, Troyce Wolf, and Demetrios Zacharopoulos, of Flint Law Firm LLC, of Edwardsville, for appellee.


         REYES, JUSTICE.

         ¶ 1 The plaintiff, Sharon Daniels, as the special administrator of Patrick O'Reilly's estate, brought an action in the circuit court of Cook County against John Crane, Inc. (John Crane) and other manufacturers of asbestos-containing products, claiming O'Reilly's exposure to these asbestos products caused him to develop pleural mesothelioma. As the matter proceeded in the circuit court, the other defendants settled, leaving John Crane as the only remaining defendant at the time of trial. Following the trial, the jury found in plaintiff's favor and awarded damages in the amount of

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$6,022,814.06. Following the verdict, the trial court directed a $1,137,500 setoff consisting of the settlement amounts and entered judgment on the verdict in the amount of $4,885,314.06. John Crane later filed a posttrial motion for a new trial, which was denied.

         ¶ 2 On appeal, John Crane contends that the trial court erred in denying its posttrial motion because it (1) allowed one of plaintiff's medical experts to improperly testify that the "cumulative dose" of O'Reilly's exposure to all asbestos products caused his injuries, (2) provided inaccurate instructions to the jury regarding proximate cause and the state of the art in asbestos cases, (3) failed to include four settled defendants on the jury verdict form, and (4) did not properly analyze certain settlement agreements prior to entering findings of good faith. For the reasons that follow, we affirm.

         ¶ 3 BACKGROUND

         ¶ 4 Because of the limited issues raised on appeal, we recite only those facts relevant to the claims presented.

         ¶ 5 O'Reilly was a union pipefitter in Chicago from 1957 to 1998. In October 2016, O'Reilly was diagnosed as having pleural mesothelioma, a cancer of the lining surrounding the inside of the chest wall and the surface of the lung.

         ¶ 6 On November 17, 2016, O'Reilly filed a complaint alleging negligence, willful and wanton conduct, civil conspiracy, negligent spoliation of evidence, willful and wanton spoliation of evidence, and loss of consortium claims against John Crane and other manufacturers of asbestos-containing products. O'Reilly alleged that his injuries occurred due to the exposure to asbestos at his workplace. O'Reilly died from mesothelioma in April 2017. His daughter Sharon Daniels, as representative of his estate, became the plaintiff. The complaint was amended to add survival and wrongful death claims.

         ¶ 7 In anticipation of trial, Crane Co. (a separate defendant) filed a motion in limine to exclude the testimony of plaintiff's expert witness, Dr. Jerrold Abraham.[1] John Crane joined in the motion. Relevant to this appeal, the motion sought to exclude Dr. Abraham's testimony because it did not meet the requirements for testimony establishing causation under Illinois law. Specifically, John Crane argued that Dr. Abraham based his opinions on O'Reilly's "asbestos exposure (cumulative)" and that this testimony failed to meet the "frequency, regularity, and proximity" standard for causation testimony adopted by the Illinois Supreme Court in Thacker v. UNR Industries, Inc., 151 Ill.2d 343, 177 Ill.Dec. 379, 603 N.E.2d 449 (1992). At argument on the motion in limine, John Crane further argued that Dr. Abraham's testimony should be excluded because it did not meet the Frye standard as his opinions amounted to a generally unaccepted scientific theory that "each and every" exposure to asbestos fibers causes disease. The trial court denied the motion in limine.

         ¶ 8 Before the commencement of the trial, numerous defendants except John Crane were dismissed, either because of general dismissals or through settlements.[2] Four of the eight defendants who settled sought good faith findings from the trial

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court: Trane U.S., Inc. (Trane); Weil-McLain; Crane Co.; and CBS Corporation, f/k/a Westinghouse Electric Corporation (Westinghouse).[3] John Crane objected to the good faith findings as to Trane and Westinghouse, arguing that plaintiff had not disclosed the settlement amounts or the allocation of liability. The trial court overruled the objections and entered the good faith findings.

         ¶ 9 The matter then proceeded to trial where plaintiff presented evidence with regard to the decedent's injuries and subsequent death, the family's loss as a result of his death, John Crane's knowledge of the dangers of asbestos, and John Crane's failure to notify the decedent of these known dangers. We will, however, summarize only the evidence relevant to the issues discussed in this opinion.

         ¶ 10 As already indicated, O'Reilly worked as a pipefitter at various locations in Chicago from 1957 to 1998. Details about O'Reilly's work were presented to the jury through two videotaped depositions that were conducted prior to his death. According to O'Reilly, his work as a pipefitter involved primarily replacing and installing valves and gaskets. The valves were manufactured by Crane Co., Chapman Valves, Edward Valves, Jenkins Valves, Inc., Jamesbury, Westinghouse, Powell, and Leslie. The gaskets were manufactured by Garlock and John Crane. The packing material that was used to form a seal between the gasket and the pipe was also manufactured by John Crane. O'Reilly testified that at the time he was working with these products he was unaware that they contained asbestos.

         ¶ 11 In order to replace the valves and gaskets, O'Reilly had to remove the insulation that surrounded the pipe. Removing the insulation created dust, which he inhaled, and he only wore a mask "once in a while." To remove the gaskets, he first had to remove the packing material that surrounded the gasket. In order to do so, he needed to remove the packing material with a pick, chisel, and hammer to complete the task. This process also created dust which he inhaled. Once the packing was removed, he would dislodge the old gasket with a scraper and a wire brush. Occasionally this work would require the use of an electric sander. This too generated dust that he would inhale. O'Reilly then had to fit the new gasket to the pipe, which at times required him to modify the precut gaskets to fit the flanges, which he did in the pipefitter's shop. This involved cutting the gasket and punching holes in it for the insertion of bolts. According to O'Reilly, he worked with John Crane gaskets and packing on a daily basis.

         ¶ 12 Plaintiff, through the expert testimony of Dr. Arnold Brody, PhD, introduced evidence regarding the general nature of asbestos. Dr. Brody explained that there are three different types of asbestos, all which cause cancer: crocidolite (the most potent), amosite (the next most potent), and chrysotile (the least potent). Dr. Brody further explained that asbestos fibers are microscopic and are thus not visible to the naked eye. One million asbestos fibers can sit on the head of a pin and one billion asbestos fibers can sit on the tip of our finger. These fibers are odorless and tasteless, thus there is no way for an individual to know when asbestos enters the body. As it relates to the lungs, asbestos can cause lung cancer and mesothelioma. According to Dr. Brody, asbestos exposure is the only known cause of mesothelioma in

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the United States. While asbestos fibers are in the ambient air we breathe, this "background" exposure rarely causes cancer — only one in a million individuals contract cancer in this way.[4]

         ¶ 13 Dr. Gerald Markowitz, PhD, a professor of history, testified as an expert regarding the history of asbestos disease. According to Markowitz, the risk of asbestos was first discovered in England in 1898. In 1918, the U.S. Bureau of Labor Statistics reported that workers and bystanders exposed to asbestos were at risk of disease. Thereafter, in 1936, the Illinois state legislature specifically mentioned asbestos as a dangerous substance and provided compensation for workers injured by exposure to asbestos. By 1964, the United States government and those in the asbestos industry were aware of the risks of asbestos exposure through a conference organized by a preeminent asbestos researcher, Dr. Selikoff. Subsequently, in 1972 the United States Occupational Safety and Health Administration (OSHA) was established to regulate asbestos.

         ¶ 14 Plaintiff's expert Dr. Abraham, a board-certified physician in anatomic pathology, testified regarding the cause of O'Reilly's mesothelioma. After reviewing O'Reilly's medical records, work history, deposition testimony, and pathology slides, Dr. Abraham opined that O'Reilly's exposure to asbestos from his work with John Crane gaskets and packing was a substantial contributing factor in the development of his pleural mesothelioma. Dr. Abraham explained that there are no known safe levels of asbestos exposure, "even seemingly trivial exposures can cause it." In addition, asbestos disease is a "dose-response disease," so the more exposure an individual has to asbestos dust the more likely they are to contract the disease. But once someone has sustained an asbestos related disease, it does not matter whether they have had a low exposure or high exposure to asbestos. If there is documentation that they have had asbestos exposure, it is not really sufficiently logical to relate their asbestos disease to anything other than their asbestos exposure.

         ¶ 15 When specifically asked whether O'Reilly's exposure to John Crane gaskets and packing from 1957 through 1985 would be consistent with a mesothelioma diagnosis in 2016, Dr. Abraham replied that it would. Dr. Abraham explained that mesothelioma has a very long latency and therefore it could take decades for mesothelioma to develop after asbestos exposure. Dr. Abraham also testified regarding how to measure an individual's level of asbestos exposure. According to Dr. Abraham, one's history of asbestos exposure is the only way to measure the level and that pleural mesothelioma is itself indicative of a "substantial exposure" to asbestos.

         ¶ 16 On cross-examination, Dr. Abraham testified that the body has natural defense mechanisms that work to inhibit asbestos fibers from remaining in the lungs. Dr. Abraham also acknowledged that it is theoretically possible to have an occupational exposure to asbestos that is not substantial and defined that exposure as "one fiber more than background."[5] Dr. Abraham also acknowledged that O'Reilly worked around blocks of friable insulation that would have contained trillions of asbestos fibers if released. Lastly, Dr. Abraham opined that all of the asbestos-containing

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products to which O'Reilly was exposed were a "substantially contributing factor" to the cause of his mesothelioma. According to Dr. Abraham, no one brand would be totally responsible, unless it were the only brand to which he was exposed.

         ¶ 17 William Ewing, a certified industrial hygienist, testified as an expert on behalf of plaintiff. Ewing opined that by working with John Crane's gaskets and packing, O'Reilly had "significant exposure" to asbestos. Ewing acknowledged that John Crane's gaskets and packing were made of encapsulated asbestos. He opined, however, that O'Reilly was exposed to asbestos from John Crane products when O'Reilly used picks, chisels, and hammers to remove the packing material. He further opined that O'Reilly was exposed to asbestos when he used wire brushes and sanders to dislodge or reshape John Crane gaskets. In handling the gaskets and packing in this manner, asbestos dust would have been released in the air and inhaled by O'Reilly. Ewing testified that the outdoor concentration of background asbestos in the air is 0.00039 fibers per cubic centimeter. In contrast, Ewing opined that the range of asbestos fibers O'Reilly would have been exposed to when removing and installing gaskets was 0.05 to 1 fibers per cubic centimeter and when removing packing was 0.05 to 2 fibers per cubic centimeter. According to Ewing, this is a "significant increase in exposure" over background.

         ¶ 18 During Ewing's cross-examination, John Crane established that O'Reilly was exposed to asbestos-containing block insulation and pipe covering that would have resulted in significant asbestos exposure. Specifically, Ewing opined that the air concentration when removing friable asbestos piping insulation was 16 to 136 fibers per cubic centimeter and that a bystander to the removal of such insulation would be exposed to 2 to 78 fibers per cubic centimeter. Removal of a small piece of pipe insulation would have exposed O'Reilly to significant exposures of 1 to 3 fibers per cubic centimeter. Accordingly, this means that O'Reilly was likely exposed to asbestos from other products, not solely those manufactured by John Crane. Ewing further testified that if the gasket was not scraped there would be no exposure to asbestos because the asbestos fibers were encapsulated. Similarly, there would be no exposure to asbestos if the packing was wet when handled.

         ¶ 19 George McKillop, John Crane's corporate representative, testified in a videotaped evidence deposition that John Crane sold products containing asbestos from the 1930s until July 31, 1985. The company, in 1970, first learned that asbestos could cause numerous diseases such as asbestosis and mesothelioma. Due to government regulations of asbestos, in 1983, John Crane commenced placing warning labels on its products. During the 1970s, it was the practice at John Crane's manufacturing plant to wet the gaskets and packing material prior to manipulating them to avoid working with dry products and dust exhaust mechanisms were used in the factory. John Crane was aware that individuals who removed its gaskets did so using paint scrapers and wire brushes. John Crane was also aware that individuals would cut the gaskets by hitting them with hammers and cutting them with tin snips or regular cutters. McKillop further testified to one of John Crane's "Material Safety Data Sheets," which identified John Crane's products as containing 60 to 80 percent asbestos as of 1981. According to McKillop, John Crane products played no role whatsoever in causing a person's asbestos disease.

         ¶ 20 As plaintiff's witness, George Springs, another corporate representative

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of John Crane, testified that John Crane sold asbestos and nonasbestos gaskets and packing. As defendant's witness, Springs testified, based on O'Reilly's deposition testimony, that he could not identify what John Crane products O'Reilly worked with nor did John Crane have any sales records to companies for which O'Reilly worked. On cross-examination, Springs testified that there were no sales records prior to 1977. For those sales occurring after 1977, John Crane, however, did sell products to Zenith, Standard Brands, and the City of Chicago but not to the exact locations where O'Reilly worked.

         ¶ 21 Dr. James Crapo testified on behalf of John Crane as an expert in the field of internal medicine, pulmonary medicine, and inhalation toxicology as it relates to asbestos. Dr. Crapo reviewed O'Reilly's medical records, work history, the operative complaint, his answers to interrogatories, and his two depositions. According to Dr. Crapo, the amount of exposure to asbestos or "dose" is most important in determining the cause of mesothelioma. For example, one must be exposed to a high dose of asbestos over decades to develop asbestos disease. Dr. Crapo opined that O'Reilly's mesothelioma was caused by his exposure to amosite asbestos from insulation. Dr. Crapo further opined that the chrysotile asbestos found in John Crane products would not have produced a high enough dose to cause O'Reilly's mesothelioma. Dr. Crapo made clear that the sole cause of O'Reilly's disease was due to his exposure to asbestos dust from insulation.

         ¶ 22 On cross-examination, Dr. Crapo admitted that an individual could acquire mesothelioma from exposure to any type of asbestos. When confronted with numerous publications and articles attributing chrysotile asbestos exposure to the development of mesothelioma, Dr. Crapo disagreed with the conclusions stated in those publications. Dr. Crapo further testified that none of the government organizations, such as OSHA, have stated there is a safe dose of chrysotile asbestos.

         ¶ 23 Dr. Amy Madl, a board certified toxicologist, testified as an expert on behalf of defendant. Dr. Madl authored a 2006-peer reviewed paper in which she concluded that exposure to gasket and packing materials produces very low concentrations of asbestos that do not increase the risk of any disease. Dr. Madl opined that O'Reilly's work with gaskets and packing did not increase his risk of developing an asbestos-related disease but in fact it was his work around asbestos insulation that increased his risk of developing mesothelioma.

         ¶ 24 At the close of evidence, the trial court conducted a jury instructions conference outside the presence of the jury. Specifically at issue in this appeal are the instructions surrounding proximate causation and a definition of "state of the art." Plaintiff presented the standard Illinois Pattern Jury Instruction for proximate cause (Illinois Pattern Jury Instructions, Civil, No. 15.01 (2006) (hereinafter IPI Civil (2006) No. 15.01). John Crane objected and presented its own instructions regarding proximate cause. The trial court rejected defendant's nonpattern instruction. John Crane also tendered a nonpattern instruction defining state of the art, which the trial court also rejected. Over plaintiff's objection, the trial court granted defendant's request for a sole proximate cause instruction (IPI Civil (2006) No. 12.05).

         ¶ 25 John Crane then requested that the proposed verdict form ask the jury to apportion fault between it and settled defendants Westinghouse and General Electric. The trial court denied the request because it had previously granted Westinghouse's motion for a finding of good faith settlement

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over defendant's objection and General Electric had settled. Indeed, the trial court had, three months prior to trial, entered an order regarding General Electric's dismissal in the case.

         ¶ 26 After closing arguments, the jury deliberated and ultimately found in favor of plaintiff and against John Crane in the amount of $6,022,814.06. The trial court requested affidavits as to the settlement amounts of the other defendants so as to provide for a setoff. Plaintiff produced a single affidavit in which the total of the settlement was disclosed in the amount of $1,137,500. The trial court entered judgment on the verdict, including the amount of the setoff.

         ¶ 27 John Crane filed its posttrial motion arguing, in pertinent part, that the trial court erred when it (1) allowed Dr. Abraham to testify that the "cumulative dose" of O'Reilly's exposure to all asbestos products caused his injuries, (2) ignored Illinois precedent establishing that in an asbestos case any instruction on proximate cause must include the term "substantial factor" in its definition, (3) failed to instruct the jury as to the state of the art for asbestos gaskets and packing at the time of plaintiff's exposure, (4) did not include the other settled defendants on the verdict form, and (5) failed to properly analyze the settlement agreements with Westinghouse, Crane Co., Trane, and Weil-McLain before entering its good faith finding. The trial court denied the posttrial motion finding the jury was properly instructed and that Dr. Abraham's testimony had been properly disclosed. This appeal followed.

         ¶ 28 ANALYSIS

         ¶ 29 On appeal, John Crane contends that the trial court erred in denying its posttrial motion because it (1) allowed one of plaintiff's medical experts to improperly testify that the "cumulative dose" of O'Reilly's exposure to all asbestos products caused his injuries, (2) provided inaccurate instructions to the jury regarding proximate cause and the state of the art in asbestos cases, (3) failed to include four settled defendants on the jury verdict form, and (4) did ...

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