Startley v. Welco Manufacturing Company
78 N.E.3d 639
| Ill. App. Ct. | 2017Background
- Ronnie Startley worked as a drywall finisher for decades, including a 3–4 month period in Illinois in 1965 during which he and his cousin Walter used powdered joint compounds that contained asbestos.
- Ronnie developed mesothelioma and the estate sued multiple manufacturers; all settled or were dismissed except Welco Manufacturing (maker of "Wel‑Cote").
- At trial Walter testified that they used multiple joint compounds (USG, Gold Bond, Bestwall, Wel‑Cote); his testimony about frequency and site‑specific use of Wel‑Cote was vague and a portion stating Wel‑Cote (and Bestwall) were used most was deleted from the recording shown to the jury.
- Experts testified that all asbestos fiber types (including chrysotile used by Welco) can cause mesothelioma and that relatively low exposures may be causative; one expert acknowledged uncertainty about very short fibers (<5 microns) but testified manufacturing chrysotile often contains some longer, more dangerous fibers.
- The trial court granted Welco's motion for a directed verdict, finding insufficient evidence of product identification and frequency of exposure; the appellate court reversed and remanded for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation (frequency/regularity/proximity) | Walter identified Wel‑Cote as a compound they used in Illinois and sometimes among the more used brands; experts said low exposures can cause mesothelioma, so a jury could find Wel‑Cote a substantial factor | Walter could not specify how often or at which sites Wel‑Cote was used; testimony was too vague to show sufficient exposure to Welco's product | Reversed — testimonial evidence about use of Wel‑Cote created a material factual dispute; jury decision required, not directed verdict (court follows Thacker but applies less rigidity for mesothelioma cases) |
| Choice of law | Estate limited claims to Illinois exposures in 1965; injury and conduct (product used in Illinois) occurred in Illinois | Welco argued Alabama law should apply because decedent lived/worked mostly in Alabama and many exposures there | Illinois law applies — injury occurred in Illinois and presumption for local law not overcome by countervailing contacts |
| Duty to warn | By 1964 the public health literature had established asbestos hazards; Welco as manufacturer should have known and had duty to warn users | (Implied) Welco had no duty because warnings were not required or knowledge uncertain | Held for plaintiff on sufficiency — evidence supported that Welco knew or should have known of asbestos danger and may have had duty to warn; issue for jury |
| Chrysotile causation (fiber type/length) | Experts testified chrysotile used in products is not pure and contains some longer fibers; all fiber types can cause mesothelioma and low doses matter | Pointed to testimony acknowledging uncertainty whether very short fibers (<5 microns) cause mesothelioma and relied on studies about fiber breakdown | Held for plaintiff on sufficiency — expert testimony overall permitted jury to find Welco's chrysotile product could have substantially contributed to disease; lack of definitive experimental proof did not mandate judgment for Welco |
Key Cases Cited
- Thacker v. UNR Industries, Inc., 151 Ill. 2d 343 (Ill. 1992) (sets out frequency, regularity, and proximity test for asbestos causation)
- Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992) (applies a less rigid frequency/regularity test in mesothelioma cases where direct exposure evidence exists)
- Holcomb v. Georgia Pacific, LLC, 289 P.3d 188 (Nev. 2012) (reversed summary judgment where plaintiff gave generalized but repeated-use testimony about multiple joint compounds)
- Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304 (Tex. Ct. App. 2007) (found evidence insufficient where no quantitative or comparative proof defendant's product was used frequently)
- Ingersoll v. Klein, 46 Ill. 2d 42 (Ill. 1970) (presumption that law of place of injury governs choice of law)
- Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147 (Ill. 2007) (choice‑of‑law factors and burden to overcome presumption)
- Hammond v. North American Asbestos Corp., 97 Ill. 2d 195 (Ill. 1983) (manufacturer's knowledge of asbestos hazards may be imputed for duty‑to‑warn analysis)
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (Ill. 2004) (directed verdict standard reviewed de novo)