On December 19, 2019, the Illinois Appellate Court, First District, affirmed the judgment of the Circuit Court of Cook County following a verdict of $6,022,814.06 awarded to the estate of a union pipefitter diagnosed with alleged asbestos-related mesothelioma. After calculating $1.1375 million in setoffs based on prior settlement amounts, the Circuit Court entered judgement in the amount of $4,885,314.06 against the only remaining defendant at trial, gasket and packing manufacturer John Crane, Inc. John Crane appealed, claiming the trial court erred in the following respects:
- The Court allowed one of Plaintiff’s medical experts to improperly testify that the decedent’s “cumulative dose” to all asbestos products caused his injuries;
- The Court provided inaccurate instructions to the jury regarding proximate cause and the state of the art in asbestos cases;
- The Court failed to include four of the settled defendants on the verdict form; and
- The Court did not properly analyze certain settlement agreements prior to entering findings of good faith.
The First District concluded that the trial court did not abuse its discretion in its rulings on any of these issues.
Plaintiff Sharon Daniels brought action on behalf of the estate of her father Patrick O’Reilly, alleging that he developed and died of mesothelioma as a result of his exposure to asbestos through his work as a union pipefitter in Chicago from 1957-1998. O’Reilly’s videotaped deposition testimony was presented at trial, and he testified that he worked with John Crane packing and gaskets on a daily basis and that his work with these materials generated dust. Though O’Reilly identified additional product manufacturer defendants during his testimony, all other defendants besides John Crane were dismissed before trial either through voluntary dismissals or pursuant to settlement.
1. Cumulative Dose Opinion
In finding that Plaintiff’s expert pathologist Dr. Jerrold Abraham did not present an impermissible “cumulative exposure” or “each and every exposure” theory, the First District distinguished Krik v. Exxon Mobil Corp., 870 F.3d 669 (7th Cir. 2017). In Krik, the Seventh Circuit barred the plaintiff’s expert’s cumulative exposure opinion because the plaintiff did not plan to offer “any evidence about how much asbestos exposure Krik experienced and whether that dosage could have been a substantial contributing factor” to his disease. 870 F.3d at 675. Though Dr. Abraham’s testified that all asbestos-containing products to which O’Reilly was exposed were a “substantial contributing factor” to causing his mesothelioma and that “even seemingly trivial exposures” to asbestos can case cause mesothelioma, the First District explained that Dr. Abraham also explicitly stressed that asbestos-related diseases are “dose-response” diseases. Moreover, Plaintiff did not rely solely on Dr. Abraham’s testimony to prove causation, but rather she also presented the testimony of her expert industrial hygienist William Ewing to establish the specific range of doses to asbestos fibers to which O’Reilly was exposed through his removal and installation of John Crane gaskets and packing. Ewing opined that the range of doses related to John Crane products were a “significant increase in exposure” over background. The First District reasoned that Dr. Abraham’s testimony ultimately provided the background information necessary for the jury to interpret Ewing’s opinions regarding dose and causation. As a result, the trial court did not abuse its discretion by permitting Dr. Abraham to testify.
2. Jury Instructions on Proximate Cause and State of the Art
The First District next held that the caselaw presented by John Crane failed to support the conclusion that an asbestos jury must be instructed on the substantial factor test when considering proximate cause. The trial court approved the long-form instruction of IPI 15.01, which includes the concept of plaintiff’s theory of concurrent causation (“It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.”). The First District reasoned that including the phrase “substantial factor” in the non-pattern instruction proposed by John Crane could be misconstrued by the jury as requiring a specific quantity of asbestos exposure, instead of focusing their attention on the appropriate “frequency, regularity, and proximity” test. The First District further found that John Crane’s non-pattern jury instruction conflated the two methods by which a plaintiff may prove causation in fact: (1) the traditional “but for” test where “a defendant’s conduct is not a cause of an event if the event would have occurred without it” or (2) the “substantial factor” test, where “the defendant’s conduct is said to be the cause of an event if it was a material element and a substantial factor in bringing the event about.” Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 354-55 (1992), Nolan v. Weil-McLain, 233 Ill. 2d 416, 431 (2009). Plaintiff in this case chose to proceed via the latter test, and John Crane incorrectly stated the law by trying to include the language “absent [the defendant’s] conduct, the jury would not have occurred.”
In addition, the First District concludes that John Crane’s non-pattern jury instruction related to state of the art also misstated the law by appearing to require that Plaintiff prove that both John Crane as well as other product manufacturers in the industry knew of the dangerous nature of John Crane gaskets and packing. The Court cited the proposition in Carrizales v. Rheem Manufacturing Co., Inc., 226 Ill. App. 3d 20, 25 (1991) that “duty to warn of a particular hazard will be imposed only where there is unequal knowledge, either actual or constructive, and the defendant knows or should have known that injury may occur if no warning is given.” Relying on Carrizales, the First District explained that state-of-the-art evidence may be presented to aid the jury in determining what a defendant knew or should have known, but such state-of-the-art evidence is not necessary where there is evidence that the defendant knew or should have known that injury may occur in the absence of a warning. In particular, the First District distinguished the recent decision in McKinney v. Hobart Brothers, 2018 IL App (4th) 170333 where the defendant’s direct knowledge was not at issue. Rather, the trial court in McKinney determined that the plaintiff did not establish that the relevant industry knew at the time the plaintiff was exposed that the defendant’s products posed a danger when manipulated as described by the plaintiff. 2018 IL App (4th) 170333, ¶ 44. Here, John Crane’s corporate representative testified that John Crane was aware of the dangers of asbestos at the time O’Reilly was exposed and was also aware that end users used paint scrapers, wire brushes, and cutters to fit gaskets and remove packing. The First District concluded that what was known by the industry is merely secondary to what was actually known by John Crane.
The trial court therefore properly instructed the jury with the applicable IPI instructions and did not err in failing to instruct the jury according to John Crane’s non-pattern instructions.
3. Failure to Include Settled Defendants On Verdict Form
The First District found that John Crane forfeited its claims as to three of the settled defendants because it failed to attempt to include them on the verdict form at any time. During the jury instructions conference, John Crane requested that, of the four settled defendants, only General Electric appear on the jury verdict form. Regardless, relying on Ready v. United/Goedecke Services, Inc., 232 Ill. 2d 369 (2008), the First District re-affirmed the Illinois Supreme Court’s broad notion that the joint liability statute (735 ILCS 5/2-1117) prevents all settled defendants from appearing on the verdict form, not just defendants who settle in good faith. The First District explains that despite any language in the Ready opinion referencing “good-faith settling tortfeasors who have been dismissed from the lawsuit,” the Supreme Court generally held that the statute as enacted in 1986 “was never intended to include settling tortfeasors in the apportionment of fault.” Therefore, the trial court did not abuse its discretion when it declined to include any settled defendants on the verdict form.
4. Good Faith Findings
Finally, the First District held that the trial court is not required to recite the terms of a settlement agreement into the record or otherwise provide a third party with the terms of the settlement, as “[s]ettlements are not designed to benefit non-settling third parties.” Muro v. Abel Freight Lines, Inc., 283 Ill. App. 3d 416, 420 (1996). Moreover, a trial court need not decide the merits of the case to make a good faith finding pursuant to settlement. Rather, the trial court must consider the totality of the circumstances, which includes the amount paid, amount that the settling defendant could pay, the amount of the plaintiff’s claims, and the defenses of the settling and non-settling defendants. Ross v. Illinois Central R.R. Co., 2019 IL App (1st) 181579, ¶ 27. Here, the First District notes that that totality of circumstances included the information from the pleadings, motions, and depositions; the understanding that Plaintiff was proceeding to trial on its negligence count in which she sought in excess of $50,000; and the understanding that John Crane would assert a sole proximate cause defense. The totality of circumstances was therefore sufficient for a finding of good faith. The First District further noted that John Crane did not request an evidentiary hearing, and a separate evidentiary hearing is not required. Based on the available record, the First District concludes that the trial court’s findings were not “clearly against logic, arbitrary, exceed[ed] the bounds of reason or [ran] contrary to recognized principles of law.” Miranda v. Walsh Group, Ltd., 2013 IL App (1st) 122674, ¶ 16.
The underlying Cook County, IL case is Sharon Daniels, Individually and as Special Administrator of the Estate of Patrick M. O’Reilly, Deceased v. John Crane, et al., Case No. 16 L 11308. The Appellate Court decision is found at 2019 IL App (1st) 190170. Plaintiff is represented by The Flint Law Firm, LLP.