Segal McCambridge Legal Blog

Posted By:
June 25, 2012

Indiana Supreme Court reverses grant of summary judgment in asbestos case

As reported in the June 25, 2012 Indiana Lawyer

As of June 25th, 2012, a copy of the Indiana Supreme Court opinion can be found here

Indiana justices outline ‘˜improvement to real property’

For the first time, the Indiana Supreme Court addressed what constitutes an improvement to real property’? as mentioned in the construction statute of repose. In doing so, the justices reversed the trial court’s grant of a contractor’s motion for summary judgment in a wrongful death claim.

In 2007, Sharon Gill filed a complaint in Marion Superior Court against Evansville Sheet Metal Works and 18 other defendants asserting wrongful death claims. As to ESMW, she sought damages on theories of products liability and contractor negligence. Her husband worked at Aluminum Company of America in Newburgh and was allegedly exposed to and inhaled asbestos fibers during the course of his employment. He was diagnosed with an asbestos-related disease in 2004 and died of lung cancer in 2005.

ESMW allegedly worked as a contractor for Alcoa at a common worksite with Gill’s husband.

The Marion Superior Court placed the complaint on its Mass Tort Asbestos Litigation Docket and eventually granted ESMW’s motions for summary judgment on the grounds that Gill’s product liability and contractor negligence claims were barred by the product liability statute of repose and construction statute of repose, respectively. At issue Monday was only whether the construction statute of repose applied.

The Court of Appeals affirmed, finding Gill brought her claim outside the 10-year period stipulated in the statute, so her claim was barred.

Indiana courts have yet to define the meaning of improvement to real property’? as used in Indiana Code 32-30-1-5 (2004). The justices cited the statute in effect at the time of Gill’s complaint even though the statute was amended in 2005. Justice Frank Sullivan noted the court perceived no substantive difference between the former version and the current one.

Looking at how other states have handled this issue, the justices decided to take the commonsense’? approach that looks to the ordinary or plain meaning of the phrase. Whether something is an improvement to real property under the commonsense approach is a question of law, but its resolution is grounded in fact, Sullivan wrote in Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc., 49S05-1111-CV-672.

The high court held that an improvement to real property’? is an addition to or betterment of real property, that is permanent, that enhances the real property’s capital value, that involves the expenditure of labor or money, that is designed to make the property more useful or valuable, and that is not an ordinary repair.

In applying this commonsense definition, judges and lawyers should focus on these individual criteria but they should not lose sight of the fact that this is a definition grounded in commonsense,’? he wrote. The fact that a purported improvement satisfies each of these individual criteria may not be sufficient for it to be an improvement within the meaning of the CSoR if it would do violence to the plain and ordinary meaning of the term as used in the construction context.’?

In this case, ESMW failed to make a prima facie showing that its work at Alcoa constituted an improvement to real property. The justices remanded for further proceedings.

The justices also addressed the COA’s criticism of that Marion County court following its local rule allowing pre-discovery motions for summary judgment. They agreed with the COA judges that whether something is an improvement to real property is a fact-sensitive inquiry that may require discovery in some cases, but disagreed with the conclusion that Local Rule 714 can’t be applied in this context.

Posted By:
June 22, 2012

New MMSEA TPOC Reporting Thresholds Posted, Further Alerts Anticipated

In a recent Alert, the Centers for Medicare and Medicaid Services posted new mandatory minimum Total Payment Obligation to Claimant reporting thresholds as applicable through January 2015. What sets this June 20, 2012 Alert apart from previous directives is that the minimum TPOC reporting thresholds previously decreased to no threshold – such that all liability insurance (and self-insurance) personal injury settlements, judgments, awards and other payments to a Medicare beneficiary would require reporting in 2015. The June 20 Alert gradually decreases the minimum TPOC amount to $300. Thus for cases with a TPOC date on or after 10/1/2014, if the TPOC is over $300, the settlement will need to be reported in the first quarter of 2015. The current TPOC minimum threshold requires reporting where the settlement, judgment, award or other payment exceeds $50,000. This amount decreases over the upcoming months as set forth in the Alert.

With this Alert, the $300 threshold previously implemented for certain liability insurance (and self insurance) recovery cases, that had excluded exposure, ingestion and inhalation cases, will now apply to all liability insurance and self insurance recovery cases. Click here to read the Alert.

Similar Alerts were issued regarding Workers’ Compensation and are available here.

In June 19′s NGHP Town Hall Teleconference, the CMS stated that Alerts were forthcoming and a new MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting User Guide ought to issue before the 4th of July holiday.

Posted By:
April 30, 2012

Exposure to asbestos allegedly related to an increased risk of coronary artery disease

Source: Science Codex
Asbestos workers at significantly increased risk of heart disease/strokes
Workers exposed to asbestos as part of their job are at significantly greater risk of heart disease and stroke than the general population, finds research published online in Occupational and Environmental Medicine.
Women seem to be at greater risk than men, the research indicates.
It is well known that asbestos workers are already prone to serious lung disease, such as mesothelioma and asbestosis, as a direct result of their exposure to asbestos fibres.
The researchers set out to explore the impact of asbestos as an inflammatory agent on the risk of heart disease and stroke, given that inflammation is now known to have a role in cardiovascular disease.
They analysed cause of death among just under 100,000 asbestos workers taking part in regular voluntary health monitoring and answering questions on levels of exposure for the Asbestos Workers Survey.
The average monitoring period was 19 years, with the average age on the date of the first medical examination being 35.
Most of the men taking part in the survey worked in asbestos removal while most of the women worked in manufacturing.
Over half of the men (58%) and women (52%) were smokers at the time of their first medical examination, proportions which had fallen only slightly (55% and 49%) at the time of their last medical examination. Smoking is a known risk factor for heart attack and stroke.
The research team compared the number of deaths from stroke and heart attacks among these workers between 1971 and 2005 against the number that would be expected to occur in the general population (standardised mortality ratios).
During the study period, 15,557 people died from all causes. Stroke accounted for just over 1000 deaths while heart disease accounted for another 4000.
Based on the standardised mortality ratios, asbestos workers were significantly more likely to die of cardiovascular disease than the general population, even after taking account of smoking.
Male asbestos workers were 63% more likely to die of a stroke and 39% more likely to die of heart disease. The corresponding figures for women were, respectively, 100% and 89%.
And there was some evidence that the longer the duration of exposure to asbestos, the greater was the likelihood of dying from heart disease, even after taking account of smoking.

Posted By:
October 10, 2011

Judge removed by Mississippi Supreme Court in asbestos case

Several stories on the removal of the trial court judge who oversaw the $322 million dollar verdict in Mississippi

Judge taken off asbestos case, bringing proceedings to a halt
The Mississippi Supreme Court has ordered a Smith County judge to step down from further proceedings in an asbestos case that resulted in a $322 million verdict.

In an order issued Thursday, Presiding Justice Jess H. Dickinson said all proceedings in the case will be halted until a new judge is appointed.

Union Carbide had asked the Supreme Court to determine whether Circuit Judge Eddie H. Bowen should have presided over the case.

In May, attorneys for Union Carbide said Bowen neglected to notify defense lawyers his parents had been involved in similar asbestos litigation and had settled a case against Union Carbide. When Bowen didn’t respond to the petition, Union Carbide went to the Supreme Court.

On May 4, a jury in Smith County awarded $300 million in punitive damages and $22 million in actual damages to Thomas C. Brown, who claimed he had inhaled asbestos dust while mixing drilling mud sold and manufactured by Chevron Phillips Chemical Co. and Union Carbide.

Allen Hosselly, a Dallas attorney who represented Brown, has said he thought both the plaintiff and defense were treated fairly by the judge during the trial. He said if there was some conflict involving the judge the defense “didn’t raise it until after the verdict came down.”

In a statement, Union Carbide said Bowen made “offhand comments” during the trial about how his father might have been exposed to asbestos at Ingalls Shipyard in Pascagoula. Union Carbide said Howard J. Bowen, identified as the judge’s father, had sued Union Carbide and others in 1989 and 1992.

Bowen, according to the motion, was a practicing attorney when his father and mother sued Union Carbide seeking $1 million for emotional distress, and at least one case is still outstanding. Union Carbide settled with the elder Bowens.

Union Carbide $322 Million Asbestos Verdict Put on Hold
A $322 million jury verdict against Dow Chemical Co. (DOW)'s Union Carbide unit and Chevron Phillips Chemical Co. was put on hold while the Mississippi Supreme Court considers whether the trial judge should be disqualified.

Union Carbide claims Circuit Court Judge Eddie Bowen, who presided in the Raleigh, Mississippi, trial over a former oil worker's claim he was sickened by asbestos, should have bowed out of the case because the judge's father suffered from asbestosis, a disease caused by the mineral.

Union Carbide said the companies were denied a fair trial. Bowen might be biased, the company said in its petition to the state high court, citing his father's illness, "improper comments on the evidence," and rulings during the trial.

The May 4 award is the largest ever made to a single asbestos case plaintiff, according to data compiled by Bloomberg. A state punitive-damages cap would erase at least $260 million.

The Mississippi court stopped proceedings in the case in an order signed by Chief Justice William L. Waller Jr. The ruling means the award won't be enforced until the allegations are resolved.

"If there's a disqualification, you would have to retry it with a different judge," said Carl Tobias, a University of Richmond law professor in Virginia. "That's the way most courts would handle it." The state Supreme Court might reject the motion to disqualify the judge, he said..

Oil Worker
The plaintiff, Thomas Brown, developed asbestosis after being exposed to the toxic fibers while mixing drilling mud on oil rigs in the Gulf of Mexico. He said Union Carbide and Chevron Phillips Chemical knew asbestos is toxic and didn't warn him. Brown is on oxygen 24 hours a day, said his attorney, D. Allen Hossley.

Chevron Phillips Chemical is a joint venture of Chevron Corp. and ConocoPhillips. (COP)

The jury verdict included $300 million in punitive damages, awarded equally against Union Carbide and Chevron Phillips Chemical. Mississippi law would limit the punitive award to $40 million, or $20 million per defendant.

The judge didn't respond immediately to a message left in his chambers.

Bowen's father settled claims with asbestos defendants, including Union Carbide, the company's filing said.

"If this is not an appearance of impropriety, I don't know what an appearance of impropriety is," W.G. Watkins, a Union Carbide lawyer, said in an interview.

'Fair Trial'
While the judge's father was involved in asbestos litigation, "it happened 20 years ago and neither defendant was ever sued," Hossley, Brown's attorney, said today in a phone interview. "Everybody got a fair trial."

Watkins said company lawyers are investigating whether the judge had other possible conflicts. Yesterday's ruling is a "statement that the Supreme Court takes the recusal seriously," he said.

The case is Brown v. Phillips Co., 2006-196, Circuit Court, Smith County, Mississippi (Raleigh).

Posted By:
August 23, 2011

Vermont Supreme Court holds causation evidence insufficient in benzene exposure case

On August 5, 2011, the Vermont Supreme Court affirmed the grant of summary judgment to Goodyear Tire & Rubber Company, holding that the plaintiff’s evidence that exposure to benzene allegedly caused his cancer was insufficient to get to the jury.

Plaintiff was diagnosed with non-Hodgkin’s lymphoma which he attributed to benzene exposure that allegedly occurred between 1968 and 1973 while he was a teenager playing on a baseball field on the grounds of the former Goodyear rubber manufacturing plant. That plant was in aoperation for approximately 50 years (1936-1986) in Windsor, Vermont. Plaintiff sued, alleging that the field itself was polluted and that there was a “gully” in the outfield that transported foul-smelling and oily stormwater discharge away from the manufacturing plant. Plaintiff claimed that the discharge carried benzene from the plant through the field and that his exposure to the benzene caused his cancer. There was no evidence that Goodyear used benzene in the plant's manufacturing process, but the chemical is contained in petroleum products that were used at the plant.

Defendants moved for summary judgment. The lower court concluded that plaintiff was not entitled to present his case to a jury because he had provided insufficient evidence to support an inference that he had been exposed to benzene in any amount, let alone an amount that could have caused his illness, nor sufficient expert testimony sufficient to eliminate other potential causes of his disease. On appeal, plaintiff argued that his circumstantial evidence of causation was sufficient to present his case to the jury.

The Vermont Supreme Court affirmed the grant of summary judgment. Stating in part:

In sum, plaintiff proffered evidence indicating that, as a teenager some thirty-five years earlier, he frequently played on a field adjoining the Goodyear plant. A gully that ran across the field may have contained water contaminated by petroleum products containing benzene. Benzene has been associated with non-Hodgkins lymphoma, a general category of cancer under which plaintiff's subtype falls. Plaintiff's lymphoma was not caused by an immunodeficiency disorder, a known cause of that type of lymphoma.

Assuming that we accept all of this evidence as true, it falls well short of what plaintiff would be required to show in order to prevail in a jury trial. Indeed, if a jury were to find in favor of plaintiff on the evidence relied upon by plaintiff, we would have to overturn the verdict. In the end, plaintiff's suspicion that his cancer was caused by exposure to benzene on the Goodyear ballfield when he was a teenager is purely speculative. As plaintiff's own expert acknowledged, there is no way to know whether any benzene-containing product actually contaminated the ballfield. It is possible, of course. Although benzene itself was not used at the plant, plant operations entailed the use of petroleum products, including gasoline, that contain benzene. But even if we were to assume that benzene-containing products made their way into the gully and through the field, there is no evidence indicating the amount or concentration of benzene that was present. Nor is there any evidence indicating plaintiff's level of exposure to any benzene that may have been present on the field. Nor is plaintiff able to point to studies indicating a risk of cancer posed by exposure to limited amounts of benzene from petroleum products in an outside environment. Putting aside plaintiff's failure to demonstrate the presence of benzene in the field, a jury could only wildly speculate on the level of plaintiff's exposure to any such benzene and on the relationship between any such exposure and plaintiff's disease.

The Vermont Supreme Court also dealt with a side issue of alleged spoliation. Specifically:

Finally, we address the issue of spoliation.  Without citing any case law or pointing to anything in the record to support his vague accusations, plaintiff suggests that Goodyear was obligated to keep records of its release of contaminants from the plant but either failed to do so or destroyed any records that were kept, making it virtually impossible for him to prove his case.  Plaintiff fails to cite a specific legal basis for the obligation he claims Goodyear had to keep records.  Nor does he cite any evidence of spoliation or note any extensive attempt on his part to discover Goodyear's past records.  Under these circumstances, we find unavailing plaintiff's unsupported argument that Goodyear's lack of records should result in an inference "favorable to the plaintiff"—presumably that benzene made its way from the plant to the ballfield at a level of concentration sufficient to cause plaintiff's illness.

The entire opinion can be found online at Blanchard v. Goodyear Tire & Rubber Co., No. 2010-250 (Vt. 8/5/11).

Posted By:
August 18, 2011

RAND: Links Between Asbestos Bankruptcy Trusts, Tort Cases Examined

From The Rand Corporation

Thursday August 18, 2011

A new study by the RAND Corporation explores the way that asbestos bankruptcy trusts—created to compensate people injured by the mineral—may be influencing tort cases.

The study finds that the current way that the trusts and the tort cases are linked together may result in payments that are not consistent with the basic principles of the tort liability system.

Researchers say that, in some cases, the trusts may allow some plaintiffs to receive more compensation than if all of the companies involved in asbestos litigation had remained financially solvent. In addition, the study finds that payments by defendants that remain solvent might not be fully adjusted to account for the payments available from the trusts.

“Asbestos-related litigation is expected to continue for some time,” said Lloyd Dixon, lead author of the study and a senior economist with RAND, a nonprofit research organization. “Both plaintiffs and the defendants that remain solvent have a great deal at stake with regard to how payments from trusts enter into the determination of injury awards.”

Asbestos litigation in the United States began in the 1970s and grew rapidly. As payments for injuries mounted, many of the primary asbestos defendants declared bankruptcy, leaving behind personal injury trusts that pay future asbestos claims. During the past three decades, 56 asbestos personal injury trusts have been established; the largest 26 of these paid $10.9 billion to settle 2.4 million claims through 2008.

Over the past 10 years, payments by the asbestos bankruptcy trusts have played an increasing role in compensation for asbestos injuries, but there is no standard system to coordinate payments from trusts and lawsuits. The RAND study examines how the asbestos trusts may influence the tort case and how trust payments may be factored into tort awards in different states.

Researchers selected six states to examine closely, most of them with high numbers of asbestos cases: California, Illinois, New York, Pennsylvania, Texas and West Virginia. The statutory laws and court procedures vary considerably across the states examined.

Dixon, who wrote the study with Geoffrey McGovern, an associate behavioral/social scientist at RAND, said the potential effects of the trusts vary across states, depending on the type of legal principles used to determine liability, as well as court rules and procedures. A state’s liability standard determines who can be sued and for what share of the total harm.

Researchers say the key to determining how trusts affect compensation in asbestos lawsuits is whether evidence is developed about a plaintiff’s exposure to the asbestos produced or used by the bankrupt companies. If this sort of information is developed, then a plaintiff’s compensation will not be inflated and payments made by the solvent defendants will be adjusted to reflect compensation available from the trusts.

When such information is not developed, plaintiffs in some circumstances can recover, in effect, once for their injuries in the tort system and then again from asbestos trusts. Under some circumstances, solvent defendants may be required to pay more than their share of the harm.

“The development of evidence about a plaintiff’s exposure to the products and practices of the bankrupt firms is an important determinant of the effect of the trusts on the total plaintiff compensation and payments by the remaining solvent defendants,” Dixon said. “The creation of the trusts poses a new challenge to the tort system and courts have responded in very different ways.”

Researchers say an increase in total compensation would benefit current plaintiffs, but reduce the trust resources available to future plaintiffs. This reduction in trust resources is particularly of concern to plaintiffs who were exposed only to the products and practices of bankrupt companies, and are thus solely reliant on the trusts for compensation.

The study, “Asbestos Bankruptcy Trusts and Tort Compensation,” can be found at

Research for the study was funded by the RAND Institute for Civil Justice and contributions from the following asbestos defendants, insurers and others: Bondex International; Coalition for Litigation Justice; Crane Company; Dow Chemical Company; E.I. Dupont De Nemours and Company; Exxon Mobil Corporation; Garrison Litigation Management Group; General Electric Company; Georgia-Pacific; The Hartford; Herzfeld & Rubin; Owens-Illinois General; Saint-Gobain Corporation; Swanson, Martin & Bell; and the U.S. Chamber of Commerce.

The RAND Institute for Civil Justice helps make the civil justice system more efficient and equitable by supplying government leaders, private decision-makers and the public with the results of objective, empirically based, analytic research.

Here is a link to the study, “Asbestos Bankruptcy Trusts and Tort Compensation”

Posted By:
July 13, 2011

Delaware Supreme Court finds no duty in take-home asbestos exposure case

A divided Delaware Supreme Court has ruled against the wife of a former DuPont Co. worker in “take-home” asbestos exposure case on grounds that a “special relationship” did not exists and by drawing a distinction between misfeasance and nonfeasance.

The court, relying on its past decision in the Riedel v. ICI Americas Inc. 968 A.2d 17 (Del. 2009) ruled 3 to 2 on Monday that Patricia Price could not change a claim of nonfeasance against DuPont into a claim of misfeasance.

Plaintiff’s husband worked as a maintenance technician for E.I. du Pont de Nemours & Co. at its Chestnut Run, Delaware facility from 1957 until 1991. During his employment, Plaintiff’s spouse worked with and around products containing asbestos. Allegedly, Plaintiff’s spouse transported asbestos fibers home on his clothing, vehicle, and skin. Plaintiff alleges that years of living with her husband, exposure to the asbestos dust and fibers her husband brought home from work and handling and washing his work clothes, exposed her to the fibers and caused her to allegedly suffer from bilateral interstitial fibrosis and bilateral pleural thickening of the lungs.

The Delaware Supreme Court held that nonfeasance involves the failure to protect someone with whom you have a special relationship and to whom you owe a duty. Misfeasance involves a general affirmative duty to protect others against harm.

The Delaware high court said DuPont’s alleged failures to prevent Plaintiff’s spouse from taking asbestos fibers home on his clothing or to warn the Plaintiffs about asbestos do not support a claim of misfeasance. It also said Plaintiff’s nonfeasance claim must fail because DuPont had no special relationship with her and owed her no legal duty.

Some selected portions from the opinion:

Here, Mrs. Price's allegations, stripped of all reformatory recharacterization, are that: (1) Mr. Price, an employee of DuPont, worked with and around products containing asbestos for 34 years, (2) asbestos fibers settled on his skin, clothing, and vehicle, (3) DuPont did not provide locker rooms, uniforms, or warnings to the Prices regarding the dangers of asbestos, (4) DuPont did not prevent Mr. Price from transporting the asbestos fibers home on his skin, clothing, and vehicle, and (5) Mrs. Price, because she lived with Mr. Price and washed his clothes, developed several diseases from her exposure to the asbestos he brought home from work.
These allegations generate a reasonable inference that DuPont wrongfully (negligently) failed either to prevent Mr. Price from taking asbestos home or to warn the Prices of the dangers associated with Mr. Price wearing his work clothes home. That, according to our Riedel opinion, is pure nonfeasance—nothing more.

As of July 13, 2011, the Delaware Supreme Court opinion can be found here

The oral argument in the Delaware Supreme Court can be heard here

Posted By:
July 8, 2011

Florida Supreme Court Finds the Asbestos and Silica Compensation Fairness Act Unconstitutional When Applied Retroactively

In a decision available here, the Florida Supreme Court held in American Optical Corp., et al. v. Williams, et al., No. SC08-1617; American Optical Corp., et al., v. Spiewak, et al., No. SC08-1616 (Fla. Sup. Ct. July 8, 2011) that the Asbestos and Silica Compensation Fairness Act (the Act) could not be retroactively applied. The Court found that those who had filed cases had vested rights such that, as found the Fourth District, “new legislation enacted after that accrual which substantially affects the cause of action may not be retroactively applied to that cause of action.”

In determining that the claimants had a vested right, the Court cited to case law that “clearly demonstrates that particular physical symptoms were not required, and changes in the lung evidencing asbestos-related disease were sufficient to trigger a cause of action.” It further found that development of symptoms of impairment “has never been the legal factor in determining ‘manifestation’ or accrual under Florida law.” The Court stated that the inhalation of asbestos fibers, which “became embedded in the lungs of the plaintiffs” constituted an actual injury. Thus, with this vested cause of action, the Act did not meet the two-part test to determine if a statute may be applied retroactively.

First, the Court determined that the Legislature did specifically intend for the Act to apply retroactively. However, next, the Court determined that the Act violated the Florida Constitution. Despite the Legislature’s statement that the Act was remedial in nature and did not impact vested rights, for the reasons set forth above, the Court disagreed, stating that under the Act, “vested rights simply vanish.”

The Court further concluded that the unconstitutional portion of the Act could not be severed in regard to the Appellees, thus the entire Act could not be applied in regard to their cases.

For more information on the author of this post, click here.

Posted By:
June 30, 2011

Illinois Appellate Court reverses asbestos verdict based on alleged conspiracy

On June 22, 2011, in a 2-1 decision, the Illinois Appellate Court for the Fourth District reversed a judgment against Honeywell and Abex, jointly and severally, in the amount of $1,543,361.66 in a household, secondary exposure case. Holmes v Pneumo Abex L.L.C., No. 4-10-0462 (June 22, 2011).

The background from the opinion:

In May 2006, plaintiff filed a complaint against defendants and others for the wrongful death of his mother, Jean Holmes. The complaint alleged decedent’s husband, Donald Holmes, worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco Industries, Inc. (Unarco). During his employment, Holmes was exposed to asbestos and brought the fibers home on his clothes and person, which exposed decedent to the asbestos. Decedent was diagnosed with mesothelioma, and she died in April 2006.

Plaintiff alleged defendants, along with Unarco, Johns-Manville Corporation (Johns-Manville), Raymark Industries, Inc. (formerly Raybestos-Manhattan, Inc.) (Raybestos), Owens Corning, Owens-Illinois, and Metropolitan Life Insurance Company (MetLife), conspired to suppress information about the harmful effects of asbestos and refused to warn employees about the hazards of asbestos. Plaintiff claimed defendants’ agreements and acts done in furtherance thereof proximately caused decedent’s injury and death. Honeywell is the successor by merger to the Bendix Corporation (Bendix), which manufactured automotive brakes and brake linings. At the relevant times, brake linings, including those made by Bendix, were made with chrysotile asbestos. Bendix’s largest supplier of raw chrysotile was Johns-Manville. Abex is the successor to a variety of entities, the original being American Brake Shoe & Foundry Company. Abex made automotive brake products and brake linings with chrysotile asbestos.

In February 2009, plaintiff’s case proceeded to a jury trial. As the parties are familiar with the facts in this case, we will set forth only those facts necessary for the proper disposition of this appeal. The parties do not dispute that decedent developed peritoneal mesothelioma, which caused her death at age 93. Peritoneal mesothelioma has been associated with exposure to asbestos. It was also undisputed that decedent’s only exposure to asbestos fibers was on the work clothes of her husband, who worked at the Unarco manufacturing plant in Bloomington from 1962 to 1963. The asbestos was supplied to Unarco by Johns-Manville and Raybestos. It was undisputed that decedent and her husband were never exposed to any Bendix or Abex products.

Plaintiff presented evidence that showed multiple companies, including Johns-Manville, Raybestos, and Abex entered into a written agreement in 1936 with the Saranac Laboratory (Saranac agreement) to sponsor research on industrial dusts. The evidence showed an agreement among some of the companies to reduce or de-emphasize references to asbestosis in a 1935 asbestos industry study prepared by Dr. Anthony Lanza of MetLife; to have references to lung cancer in animals and asbestosis or cancer in humans deleted from a 1948 asbestos study prepared by Dr. Leroy Gardner and Dr. Arthur Vorwald of Saranac Laboratory and to keep the study and its underlying data from being disseminated to the public; and to prevent publication from 1935 to 1969 of any articles about the dangers of asbestos in Asbestos magazine.

Evidence showed Unarco, Johns-Manville, Raybestos, and Abex did not change their business practices concerning asbestos or attempt to warn their employees. Plaintiff also presented evidence as to the activities of Owens Corning and Owens-Illinois. Owens-Illinois received a 1948 report from Dr. Vorwald that concluded its asbestos-containing Kaylo pipe and block insulation was a potentially hazardous material and capable of producing asbestosis. In various journals, Owens-Illinois and Owens Corning sold Kaylo insulation stating it was “nonirritating” and “nontoxic.”

Plaintiff’s expert, Dr. Barry Castleman, a consultant specializing in toxic substances control, testified he had no information that Bendix was aware of communications that were taking place between Raybestos, Johns-Manville, and MetLife as to the study by Dr. Lanza. He was not aware of Bendix being involved in any effort to prevent Asbestos magazine from publishing articles about asbestos. Dr. Castleman had no knowledge that Bendix ever knew or approved of the Saranac agreement or that it had known about Dr. Gardner’s critical study. He also had no knowledge of any communication between Bendix and Owens-Illinois or Owens Corning.

Dr. Castleman testified Bendix was a member of the Friction Materials Standards Institute (FMSI), a trade organization made up of brake-lining manufacturers. Joel Charm testified Bendix and American Brake Shoe & Foundry Company had a single member of their respective board of directors in common from 1930 to 1934. Bendix and Johns-Manville also had a single member in common on their board of directors from 1959 to 1963.

William Dyson, an industrial hygienist, testified for defendants. He stated he prepared a bibliography of household exposure articles and listed a 1960 article by Dr. J.C. Wagner that spoke to mesothelioma as a result of take-home exposure to a family member.

Following closing arguments, the jury found for plaintiff and against both defendants. The jury assessed $2,632,611.66 in damages. The trial court later entered an amended judgment against defendants, jointly and severally, in the amount of $1,546,361.66. In May 2009, Honeywell and Abex filed posttrial motions, which the court denied. This appeal followed.

The Fourth District found that no relationship existed between the defendants and the decedent and thus, defendants owed no duty to decedent. The Fourth District analogized its decision in Holmes with the Second District’s decision in Nelson v. Aurora Equipment Co., 391 Ill.App.3d 1036, 1037, 909 N.E.2d 931, 933 (2d Dist.2009). The Holmes and Nelson opinions, however, are counter to the Fifth District’s opinion in Simpkins v CSX Corp., 401 Ill.App.3d 1109, 1119, 929 N.E.2d 1257, 1266 (5th Dist. 2010) which found a duty to individuals such as Mrs. Holmes. Simpkins is on appeal to the Illinois Supreme Court.

Further, the Holmes court stated that even if they were to find a relationship between the parties, there would be no duty because the danger of household exposure was not reasonably foreseeable until after decedent's husband worked at the UNARCO plant. Plaintiff’s own expert, Dr. Castleman testified that the first epidemiological study applicable to “take-home” exposures was at the earliest the Newhouse and Thompson publication in October 1964.

In dissent, Justice Knecht indicated his agreement with the Fifth District’s opinion in Simpkins. The Justice stated, "One does not require an epidemiological study to recognize disease and death from asbestos exposure dating back to the nineteenth century."

James Wylder of Wylder Corwin and Kelly represents the Holmes family and the case was tried in McLean County, located in the Fourth Appellate District.

As of June 30, 2011, the Holmes opinion can be found here

Posted By:
April 4, 2011

Over 150 asbestos suits filed in Madison County, Illinois during 1st quarter of year

From the Madison Record

First quarter asbestos claims in Madison County: At least 154

At least 154 new asbestos lawsuits have been filed in Madison County in the first quarter of 2011.

In a review of suits filed between Jan. 1 and March 29, 117 of the cases were mesothelioma claims. There were 30 lung cancer; four asbestosis and one each of pleural plaques, colon cancer and adrenocarcinoma claims.

The Simmons Firm of Alton by far filed the most claims – 77. Gori & Julian of Edwardsville filed 30; the Goldenberg firm of Edwardsville filed 16; Shrader & Associates of Houston filed eight; the Maune firm of South Carolina filed seven; the O’Brien firm of St. Louis filed seven; Saville & Flint of Alton filed five; Bilbrey Law Office of Glen Carbon filed two and the Lanier Law Firm of Houston filed two.

Of the 154 filed, 19 were claims made by Illinois residents; 135 claims were made by non-residents.

In the meantime, Madison County Circuit Judge Barbara Crowder is considering recommendations made by both sides of the asbestos bar regarding the allocation of trial dates.

Crowder presides over the largest asbestos docket in the country.

She heard arguments on March 25, among plaintiffs who would retain a calendar providing about 500 trial dates a year, defendants proposing 250 dates, and other defendants opposing both.

At last week’s hearing, defense attorney Robert “Barney” Shultz said there are about 2,900 mesothelioma diagnoses in the nation and about 140 in Illinois each year.

He said there were 506 mesothelioma cases filed in Madison County last year.

“It’s because there are so many trial dates available,” he said.

The entire article can be found here