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Under Illinois law, a plaintiff in asbestos litigation must prove they worked “regularly, frequently and in close proximity” to a defendant’s asbestos containing product. This standard was first adopted by the Illinois Supreme Court in Thacker v. UNR Industries and confirmed in Nolan v. Weil-McLain. The Fourth District further clarified the evidence required to satisfy the “regularity, frequency and proximity” test with its decision in McKinney v. Hobart Brothers. In McKinney, a welder who contracted mesothelioma filed suit against the manufacturer of asbestos-containing welding rods alleging he inhaled asbestos-containing dust after working near the welding rods for eight months. Mr. McKinney alleged defendant’s welding rods were a substantial cause of his mesothelioma because they were used near his work station, he frequently walked past welders using defendant’s welding rods, the welders did not keep a clean workspace and his employer did not use any dust control measures. Mr. McKinney further claimed that asbestos dust generated from using the welding rods, rubbing the rods together or stepping on the rods, would drift from one part of the building into his work area. The Fourth District held this evidence insufficient to satisfy the Thacker test for two reasons: 1) Mr. McKinney did not offer any testimony or evidence that any of the dust or dirt he may have breathed in his 8 months as a welder contained asbestos and to presume exposure to asbestos would require the court to “fill the gaps in the [plaintiff’s] case with speculation;” and 2) granting Mr. McKinney’s presumption that rubbing the welding rods together did release asbestos dust, it would be a reasonable inference to believe he inhaled some asbestos fibers; but Mr. McKinney still failed to offer evidence proving he breathed any more asbestos fibers from the welding rods than would have been present in background levels. The Fourth District has now weighed in again on the minimum evidence a plaintiff must present the court to prove causation.
In Krumwiede, the plaintiff, as special administrator for the estate of a deceased window glazer, alleged that the decedent used asbestos-containing products – including tape and caulk – which caused him to develop mesothelioma and ultimately resulted in his death. At trial, plaintiff presented the testimony of two co-workers that decedent used the defendant’s caulk and tape “just about every day,” but they denied ever observing visible dust when cutting the tape or using the caulk. Plaintiff also presented the testimony of Dr. Arthur Frank who opined he has never encountered a single product that lacked the capacity to give off asbestos fibers – including rubber or butyl tape. However, the Fourth District held that, even accepting the conclusion that the defendant’s products were capable of releasing respirable asbestos fibers, plaintiff failed to present any evidence showing when or under what circumstances the defendant’s products were used that actually caused a fiber release, or that any fiber release from the defendant’s product was anything more than minimal. Counsel for plaintiff argued they satisfied the “frequency, regularity and proximity” test because decedent worked with defendant’s asbestos-containing products almost every day. The Court agreed that plaintiff indeed proved decedent worked with the asbestos-containing products on a regular and frequent basis, but proving decedent worked with the product alone was insufficient to prove that he was then exposed to asbestos fibers frequently or regularly from this work. The Fourth District also rejected the notion that just because, in Dr. Frank’s opinion, similar products were capable of giving off fibers, that the products in question also released fibers. Instead, plaintiff was required to provide some evidence of how products must be handled or manipulated before fibers are released.
This recent reversal is the latest in a trend of decisions handed down by the Illinois Appellate Courts.
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