2013 IL App (4th) 121072
Ill. App. Ct.2013Background
- Decedent Jerald Bowles served as a radioman on the USS Floyd B. Parks (Gearing-class destroyer) from Dec. 1958 to May 1960; he was diagnosed with lung cancer in Feb. 2009 and died Aug. 7, 2009.
- Plaintiff (Virginia Bowles, individually and as executrix) sued multiple defendants, including Owens-Illinois and John Crane, alleging asbestos exposure from products (e.g., Kaylo insulation, valve packing) aboard the Parks caused the cancer.
- Depositions showed shipboard insulation and valve packings existed; some witnesses mentioned terms like "Kaylo/KO" and that insulation dust fell during gun firing, while one witness (Rogers) regularly handled John Crane packings but said removal did not create dust.
- Experts for defendants testified Owens-Illinois Kaylo was one of several products used historically and that overhaul/insulation work was performed by ship crews or craftsmen; plaintiff’s expert opined asbestos plus smoking caused the cancer.
- Trial court granted summary judgment for Owens-Illinois and John Crane, finding plaintiff failed to meet the Thacker ‘‘frequency, regularity and proximity’’ test for exposure; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improper because decedent was exposed to Owens-Illinois Kaylo on the Parks | Bowles argued Kaylo (or similar Owens-Illinois insulation) was present shipwide and dust from firing/overhaul exposed decedent | Owens-Illinois argued no evidence decedent worked with or in proximity to Kaylo with sufficient frequency or regularity; testimony was speculative | Affirmed: insufficient evidence under frequency, regularity, proximity; exposure to Owens-Illinois products was speculative |
| Whether summary judgment was improper because decedent was exposed to John Crane asbestos gaskets/packing | Bowles relied on testimony that Rogers used John Crane packings routinely and an experimental study showing dust release during repacking | John Crane argued decedent did not perform packing work, removal did not create dust per Rogers, and radio room was compartmentalized and ventilated away from boiler spaces | Affirmed: plaintiff failed to show decedent worked with/near John Crane products with required frequency, regularity, proximity |
Key Cases Cited
- Thacker v. UNR Industries, 151 Ill.2d 343 (Ill. 1992) (adopts frequency, regularity and proximity test for asbestos exposure causation)
- Ioerger v. Halverson Construction Co., 232 Ill.2d 196 (Ill. 2009) (summary judgment standard)
- Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.2d 278 (Ill. 2000) (summary judgment is drastic remedy)
- Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App.3d 313 (Ill. App. 1999) (speculation insufficient to defeat summary judgment)
- Bagent v. Blessing Care Corp., 224 Ill.2d 154 (Ill. 2007) (de novo review of summary judgment)
- Wehmeier v. UNR Industries, 213 Ill. App.3d 6 (Ill. App. 1991) (fiber-drift evidence may satisfy proximity in some cases)