The Illinois Appellate Court for the Fourth District affirmed a jury’s defense verdict in Holloway v. Sprinkmann Sons Corporation of Illinois, 2014 IL App (4th) 131118 (December 16, 2014). The plaintiff testified that from 1962 to 1976 she worked at the defendant’s plant and during that time she was in various portions of the plant that were served by asbestos-covered steam pipes that ran in excess of 30,000 feet. She argued that this insulation was installed by the defendants without any warnings of the hazards of asbestos to occupants of the plant. She was diagnosed with asbestosis in 2010.

The plaintiff produced Arthur Frank, M.D., a well-known medical expert for plaintiffs, who opined that minimal exposure to asbestos could be detrimental, but he was not certain as to exactly what that threshold level of exposure would be. He noted that for asbestosis to develop, many experts thought “significant” exposure was required, but that the experts could not agree among themselves as to the definition of “significant.” Dr. Frank testified that he was of the opinion that the exposure did not need to be very significant. Due to scheduling issues, the defendant did not produce expert witnesses at trial.

The Appeal

Upon receipt of the defense verdict, the plaintiff challenged the adverse verdict by arguing that the medical condition was proven, the presence of the defendant’s product in her place of employment was not denied, and her expert concluded that her exposure was a competent cause of asbestosis because airborne asbestos can linger for a very long time and could be inhaled.

After reviewing all the testimony, the Appellate Court upheld the jury verdict suggesting that the jury may have found that the extent of the exposure to loose airborne fibers was not sufficient or continuous enough to support a finding of causation. The Court cited Thacker v. U N R Industries, Inc., 151 Ill. 2d 343, 359 (1992) as illustrative of the causation test adopted in Illinois, which requires that the plaintiffs proffer evidence that they were in close proximity to asbestos such that exposure was likely and that this exposure was frequent and regular and not sporadic and occasional. The Court went on to hold:

In short, all plaintiff offered in the trial was speculation that her asbestosis resulted from repair work on the pipe-covering insulation in the Eureka plant, although she never saw any repair work being done on the insulation and there was no other evidence placing her near any such repair work. Or she theorized that her asbestosis resulted from damage inflicted on the insulation by a forklift, or that the canvas-wrapped insulation, as it aged, spontaneously emitted asbestos fibers. Arguably, no solid evidence lifted those theories out of the realm of speculation, out of the realm of “could.”

Practice Pointer 

The Illinois Appellate Court in the Fourth District applied the Illinois causation standard and made plaintiffs prove each element of their exposure with sufficiency to support causation. The Court required more than “speculation” by holding that “walk-by contact with asbestos” was insufficient to support a verdict for the plaintiffs. For that reason, depositions of plaintiffs and exposure witnesses taken in an asbestos case should be focused on developing witnesses on the Thacker exposure factors of frequency, regularity and proximity as well as challenging the product identification testimony by any and all product identification witnesses.