*1 CONCLUSION III. I of on count reasons, affirm the conviction we foregoing
For II. conviction on count vacate the information but the amended in part. part Affirmed in vacated J., EJ., STEIGMANN, concur. TURNER, NOLAN, Special of the Estate Indiv. and as Adm’x SALLY LOUISE WEIL-McLAIN, Nolan, Deceased, Plaintiff-Appellee, v. Defendant- Clarence Appellant. 4 — 05—0328
Fourth District No. Argued April Opinion filed June 2006. *2 STEIGMANN, J., dissenting. Godfrey (argued), Fowkes, C. Nomellini, Richard Scott W. Mark J. and Rhodes, LLP, Ellis,
Jennifer M. & all Kirkland and J. Edward McCam bridge, Wojcicki, E. Turner, Paul D. Segal, Cameron McCambridge, all Singer Mahoney, Ltd., Chicago, & appellant. both of for Cascino, Vaughan Offices, P. Ltd., Michael of Cascino Law David A. Rosen, Novoselsky (argued) Novoselsky Offices, and Leslie J. both of Law both Chicago, appellee. for JUSTICE McCULLOUGH delivered the court: opinion Plaintiff, Sally Nolan, Louise as administratrix of the estate of her husband, (decedent), Clarence Nolan sued numerous manufacturers of asbestos-containing products, including defendant, Weil-McLain. Her complaint alleged responsible the manufacturers were for decedent’s injuries trial, and later death. Before all manufacturers but defendant settled A jury against defendant, or were dismissed. returned a verdict $2,368,000. awarding plaintiff (1) appeals, arguing
Defendant by the trial court erred exclud- (2) ing exposures asbestos; evidence of decedent’s other the trial by give court erred refusing contributory-negligence instruction defendant; by offered by remarks made counsel dur- ing closing argument prejudicial require were so as to a new trial. We affirm. we note trial
Initially, 58-page containing court issued a order evidence, meticulously findings, detailed recitation of conclu- only necessary understanding sions. We recite those facts for an appeal. issues to resolved 2001, 1, complications
Decedent died on October from mesothe- lioma, trial, lung an At asbestos-related disease. decedent’s video- played jury. began stated deposition recorded He he work- as a work in 1952 and continued apprentice plumber ing career, During his in 1990. until his retirement plumber-pipefitter installed, boilers manufactured repaired, and removed decedent contained components portion At boiler defendant. least warning label affixed seen a Decedent had never asbestos. did Decedent products concerning dangers asbestos. dangers not know of the of asbestos. his 1972. began approximately father in
Decedent’s son work with installed, 20 to 25 boilers They repaired, approximately and removed by defendant. manufactured claiming developed he filed a lawsuit
On March decedent asbestos-containing products. as a result of his asbestosis did in the Decedent not name defendant lawsuit. diagnosed Hensold, primary-care physician,
Dr. James decedent’s July Decedent died on October decedent with mesothelioma in 2001. Marks, Eugene expert pathologist, testified that all Dr. Further, way forms of cause mesothelioma. there is no asbestos during suffered many determine which of decedent develop Dr. Marks stated career caused decedent mesothelioma. period years. Further, latency mesothelioma has a to 40 more person greater developing to the the risk of me- exposed *3 opined exposure sothelioma. Dr. Marks that decedent’s to defendant’s asbestos-containing cause decedent was substantial Dr. Marks developing resulting mesothelioma and his death. identified as a separate asbestosis and distinct disease mesothelioma. Lemen, plaintiffs expert epidemiologist, Dr. Richard also testified all Dr. that forms of asbestos can cause mesothelioma. Lemen stated person exposed greater that the more asbestos a is the risk of developing related disease. Boelter, hygienist engineer,
Frederick industrial testified multiple for defendant. Boelter conducted tests on four of defendant’s boilers, single unit built in 1952 and three units approximately built (OSHA) Administration Safety after Occupational and Health dangers opined advised defendant of the of asbestos. Boelter that not exposure asbestos-containing products levels of defendant’s were significant and did not cause disease. related occupational Sawyer, preventive
Dr. Robert a consultant medicine, Although Sawyer Dr. testified testified for defendant. also exposed greater to the the risk of person that the more asbestos a disease, is a developing related he believed there threshold exposure may any that measurable effect absorbed before there Sawyer acknowledged indicating or risk. Dr. numerous studies 966
relationship exposure between increased and increased risk of disease. Conversely, epidemiological there is no evidence that exposures below permissible exposure posed current limits risk of developing me- sothelioma. Sawyer
Dr. did not that believe all forms of asbestos cause me- Dr. Sawyer sothelioma. finding referenced various studies no significant postprocessing risk of chrysotile causing asbestos mesothe- However, cross-examination, lioma. acknowledged on Dr. Sawyer he was certain type that the fiber used defendant’s asbestos- containing products chrysotile Further, asbestos. Dr. Sawyer many government agencies admitted chrysotile have found mesothelioma; can government no agency chrysotile has found does not cause Dr. Sawyer agreed mesothelioma. decedent died complications from mesothelioma and it was occupationally related.
At the close of testimony, the trial court stated: defendant,
“The believe, last item of evidencefor is an item judicial going you. notice that I’m to read to accept You should just testimony this as evidence if it were were [sic] open presented in court. judicial following:
The court takes notice of the 3, 1988, claiming [Decedent] filed a on March lawsuit that he developing calcificationas a result of pleural pleural [sic] asbestos-related disease and products. to asbestos-containing [Defendant] was not a defendant in named that lawsuit.” jury $2,368,000 returned a plaintiff, awarding verdict for her on damages which the trial court judgment. entered Defendant filed a timely motion, posttrial appeal which the court denied. This fol- lowed. argues
Defendant first erred by excluding trial court evidence decedent’s asbestos. The court barred evidence, such relying Spain Corning Fiberglass Corp., v. Owens (1999), App. 356, 304 Ill. 3d 710 528 v. Owens-Corning N.E.2d Kochan (1993), Fiberglass 3d Corp., App. 242 Ill. N.E.2d 683 Lipke App. v. Celotex 153 Ill. N.E.2d 1213 Corp., 3d We de Ill. Spain, App. review issue novo.
at 534. Shirley Spain, as administratrix of her deceased Spain, *4 estate, manufacturers, against filed suit husband’s several including Fiberglass Corporation, that Corning alleging the Owens asbestos-exposure responsible manufacturers were her husband’s injuries trial, resulting death. Prior to all defendants with the exception Corning Spain, of Owens settled or dismissed. 304 Ill. were 358, App. 3d N.E.2d at 531. at 710
967 present to limine to be allowed Corning moved in then Owens testimony concerning decedent’s videotaped deposition decedent’s Corning. Spain The Owens multiple exposures unrelated to Lipke, another pursuant admit this evidence court refused to party appellate In court held Lipke, asbestos-related decision. “ merely because negligence responsibility cannot avoid ‘guilty contributing the same negligence person guilty is another ” 1221, 509, quoting at N.E.2d 505 App. 153 Ill. 3d at injury.’ Lipke, 889, 884, 443 Inc., Ill. 3d App. 110 Equipment, Sears v. Kois Brothers (1982). fact that 214, that “the Lipke The court concluded N.E.2d 219 variety does not relieve used a of asbestos relevant.” of such injuries. for his Evidence liability 509, The court Spain N.E.2d at 1221. App. Ill. 3d at 505 Lipke, 153 exposures (Spain, other asbestos thus excluded evidence of decedent’s 535), upheld the N.E.2d at and this court App. 304 Ill. 3d at 710 364-65, at 710 N.E.2d at ruling (Spain, App. 304 Ill. 3d trial court’s 534-35). shaped our contrast, entirely
In
set of circumstances
different
Loyola University Chicago,
v.
supreme
decision in Leonardi
court’s
(1995).
Leonardi, plaintiffs,
as
168 Ill. 2d
principle “presumes (Emphasis in plaintiff’s injury.” at least a cause of the *5 968
original.) Leonardi,
93,
The Spain clearly recognized court the difference between the case before and Leonardi, it in presented noting: situation
“The
Lipke
inapplicable
Leonardi court found the
standard
cases,
medical[-]malpractice
change
did not
governing
but
the law
asbestos cases. Because asbestos-related diseases cannot be linked
particular defendant,
to one fiber
aor
long
Illinois courts have
recognized
difficulty
determining
specific
in
whether a
exposure caused or
person’s
contributed
asbestos-induced
Thus,
or
injury
death.
in proving proximate
to assist
cause, the supreme
adopted
regularity
court
the ‘frequency,
minimis,’
proximity,’
Industries,
or ‘de
[v.
test
Thacker UNR
(1992)].”
Inc.,
343, 359,
449,
Ill.
Spain,
151
2d
603
457
N.E.2d
304
364-65,
535,
Ill.
3d
App.
citing Kochan,
at
The case indisputably before us exposure involves asbestos rather malpractice. than medical test, plaintiff presumed
Once a satisfies the Thacker a proximate Thacker, to be cause of a decedent’s See injury. 360, 151 Ill. 2d at at requires 603 N.E.2d 457. Illinois law then trier of fact independently exposure evaluate whether the was a causing substantial factor injury, thereby making decedent’s evidence of other asbestos irrelevant. Defendant can rebut (1) the presumption by proving exposed decedent to its was (3) product, his exposure injury, was insufficient to cause its product contained too low an amount of asbestos to be hazardous. 365, Spain, App. 304 Ill. 3d at N.E.2d case, In this plaintiff presented evidence that decedent was exposed asbestos-containing products the exposure defendant’s injuries in causing resulting was a substantial factor decedent’s presented exposure death. was Defendant evidence decedent’s and, further, injury products insufficient It contained too low an amount asbestos to be hazardous. was evidence, testimony, weigh the credibility of this jury to assess Co., Slag Louis Products Durbin v. St. any conflicts. See and resolve (1990). The in this issue App. 206 Ill. if a presumption causation should be a is not whether there case asbestos- exposed to defendant’s a decedent was merely shows accept expert jury could whether reasonable containing products, but decedent’s cause of any exposure was a testimony that evidence on our review the injuries resulting death. Based exposed find trial, jury could decedent presented at reasonable and, asbestos-containing according expert to defendant’s decedent’s causing testimony, was a substantial factor *6 injuries resulting death. by refusing to the trial court erred similarly argues
Defendant in 1988 as lawsuit decedent filed discovery documents from the admit In the earlier exposures to asbestos. evidence of decedent’s other his as a result of lawsuit, developed claimed he asbestosis decedent did not name asbestos-containing products. Decedent discovery to introduce sought in the Defendant defendant lawsuit. of decedent’s presented in case as evidence documents the earlier discovery The court refused admit the other asbestos. documents, finding nothing deposition in decedent’s video-recorded discovery presented inconsistent with the documents instant case further, or and, expressly either in the earlier lawsuit “no admissions tacitly.” The court stated:
“Here, that the failure sought to create the inference [defendant impeached either his of decedent to list them in the 1988 lawsuit by an tacit omission. There credibility or constituted admission nothing responses or decedent’s which questions about the permitted would have that inference.” discovery agree. by refusing court did not err to admit the We The documents the earlier lawsuit as evidence of decedent’s exposures to asbestos. argues by refusing trial court erred
Defendant next defendant. give contributory-negligence by instruction offered of
“Contributory defined as a lack due care negligence is objective safety by reasonable[-]person an one’s own measured negligence is not the [Citation.] standard. The test such by others, safely completed frequency act has been with which the occurrence, plaintiff, used that whether at the time but person have used degree ordinarily care careful would which safety [Citation.] her like circumstances. for his or own under whether Ordinarily, jury’s responsibility it to consider [citation]; contributory negligence plaintiff’s amounted to actions question of contributory negligence jury. is one fact for the regarding [Citation.] plaintiffs contributory Instructions negligence proper are not testimony where there is no or other evidence from finding contributory which a negligence might [Cita be made. degree tion.] ‘The of evidence sufficient to contributory establish negligence must be determined from the facts of [Cita each case.’ party Each right jury clearly tion.] has the fairly have upon theory supported instructed each by the evidence. [Citation.] give jury Whether to instruction within the discretion of the court, circuit granted a new trial is where there has been a deprivation right McCarthy substantial of the to a fair trial.” v. Ku nicki, App. 972-73, 355 Ill. present case,
In the decedent testified that he worked as a plumber-pipefitter years, beginning for more than 38 in approximately During career, installed, decedent repaired, and removed boilers manufactured defendant. least portion At of the boiler components contained asbestos. Decedent had never a warning seen label affixed to defendant’s products concerning dangers did dangers asbestos. Decedent not know of of asbestos. Defendant did dangers testified it know and, approximately therefore, until place warnings did not on its products. The trial court noted decedent “would have worked around years [defendant’s boilers for 22 before even [defendant] was Although began affixing aware of hazard.” it testified warnings approximately on its defendant did not produce “direct evidence” of this initiative. court found insuf- finding contributory ficient evidence from which a negligence might *7 be made. The court did its by refusing give not abuse discretion to a contributory-negligence instruction offered defendant. next argues by plaintiffs
Defendant that remarks made counsel during closing argument prejudicial require were so as to a trial. new disagree. We
“Improper argument may be if argument a basis for reversal the prevented receiving such character as to have party the Myers Heritage Inc., 241, a fair trial.” v. Enterprises, App. 354 Ill. 3d (2004). 249-50, 604, N.E.2d party 820 612 “Whether a has been denied right requires trial, to fair trial the and consideration of entire court, the trial having unique position been in to make that determination, Myers, is afforded 354 Ill. at great App. discretion.” 3d 250, 820 612. N.E.2d at We review trial court’s determination for 250, an Ill. 3d at Myers, App. abuse of discretion. 354 820 N.E.2d 612. 1974, exceeding allow- approximately OSHA cited defendant
971 objection, Over defendant’s workplace. in the of asbestos able levels notice to establish use the citation allowed the trial court s closing During argument, defendant. of asbestos to hazards (1) killing they were in tell them that came to argued: “OSHA counsel *** them and showed workers,” came out and “OSHA their own argument as The court characterized they out of control.” were imagine that stating be difficult to that “it would “hyperbole,” *** jurors, or even change minds of to were sufficient comments decision-making.” substantially affect their excluded rebuttal, properly had although the trial court During asbestos, counsel plaintiffs evidence of decedent’s “mystery guy.” produce evidence of failed argued that defendant to an immediate close. brought The the rebuttal court during ‘party “[A] trial. object argument to the Defendant did not record and into the perceived on his hands and let errors cannot sit ” jtrial post[ time in a motion.’ complain of errors for the first those 72, Co., 82, Ill. 626 App. 3d v. Illinois Central R.R. 255 Taluzek Gulf Authority, (1993), quoting Chicago Pharr v. Transit N.E.2d object 509, 515, Failure to App. Ill. opponent’s argument in is considered waiver alleged errors Taluzek, objection. App. 255 Ill. 3d at 626 N.E.2d at Moreover, nothing so our review of these remarks reveals Therefore, defendant deprive defendant of a fair trial. prejudicial closing objection during its counsel’s comments waived argument and rebuttal. stated, judgment. court’s
For the affirm the trial reasons we Affirmed.
MYERSCOUGH, J., concurs. STEIGMANN, dissenting:
JUSTICE I my colleagues difficult is a case to which important This follow,I given thought. conclude we have a lot of For reasons Accordingly, respect- judgment. affirm trial court’s should not fully dissent. regularity, adopted “frequency, in supreme court Thacker proximity proving proximate cause test” to assist However, never held supreme court has
fiber-drift asbestos cases. apply do generally govern negligence rules that cases cases, appropriate appropriate cases. This is one of those case present the sole- permitted should have been *8 rulings barred proximate-cause defense. Because the trial court’s doing so, defendant from this court should reverse remand a trial. new THE
I. SOLE-PROXIMATE-CAUSE DEFENSE In Ward v. K mart Corp., 136 Ill. 2d (1990), supreme the court wrote that “[t]he essential elements of cause of action based on negligence may common[-]law be stated briefly as follows: the duty existence of a by owed the defendant plaintiff, duty, a breach of that injury proximately and an caused Leonardi, that breach.” In supreme explained court further proximate-cause requirement as follows: action,
“In negligence proving bears the burden of only duty duty, breach of but also that proxi- defendant mately plaintiff’s injury. caused [Citations.] The element of *** proximate cause is an element of plaintiff’s Obviously, case. if there is negates causation, evidence that a defendant should However, it. granting show privilege going defendant forward, called production, also the burden of way the law in no shifts to the proof. defendant the burden of [Citations.] * * i’fi
***
argue
[P]laintiffs
proximate
that
the sole
cause defense
jury’s
distracts a
simple
attention from the
issue whether a
caused, wholly
named
partly,
injury.
We
disagree.
proximate
merely
The sole
cause defense
focuses the at
***
properly
tention of
jury
plaintiffs duty
instructed
on the
prove
that
the defendant’s conduct was a
plaintiffs injury.” (Emphasis in original.) Leonardi, 168
Ill.
at
93-94,
II. USE OF THE SOLE-PROXIMATE-CAUSE DEFENSE
IN THIS CASE Because applicability Leonardi did not limit of the sole- proximate-cause defense, it should be available in appropriate asbestos I cases. that phrase “appropriate advisedly use asbestos cases” because recognize Spain prohibit both Kochan could be viewed as ing a defendant in an raising asbestos-fiber-drift case from a sole- proximate-cause However, case, defense. this case is not fiber-drift generis. Thus, can in deciding which be viewed sui this issues presents, definitively case this court need not should not resolve all, how, if sole-proximate-cause defense can used a fiber- drift case. one, like undisputed cases where evidence exists of direct asbestos-containing
contact between the decedent and product, negate by showing the defendant should be able to causation asbestos-containing the decedent’s *9 product to the defendant’s exposure his extensive and or fibers was insignificant, negligible as by the trier of fact could be viewed to exposure the extensive compared particularly when circumstances, the trier of Under such asbestos-containing products. the decedent’s permitted to decide whether fact should be the sole constitutes asbestos-containing products the other injury. cause of decedent’s section 431 of the in for this can be found
Support principle (Second) thereto, which a and b Torts and Comments Restatement of provide as follows: Legal Cause
“What Constitutes another legal is a cause harm to negligent The conduct actor’s if
(a) harm, bringing in about the a factor his conduct is substantial (b) liability relieving from rule the actor there is no of law in negligence resulted the in which his has because of the manner harm.
Comment: in and cause the Distinction between substantial cause
a. harm, it philosophic legal In a of another’s sense. order cause occurred had the actor enough is that the harm would not have not 432(2), necessary, § negligent. not as in Except been stated negligence must also be a but it is not of itself The sufficient. plaintiffs harm. The word bringing factor in the substantial about that the defendant’s conduct ‘substantial’ used denote the fact as lead reasonable men producing has an effect in the harm to such sense, in cause, using popular that in the regard it as a word in responsibility, rather than always which there lurks the idea sense,’ every ‘philosophic which includes one the the so-called any happening not great without which would number events the a in so-called Each these events is have occurred. ’ sense, insignificant yet many them is so ‘philosophic the effect of ordinary them as causes. that no mind would think of is whether the many question In the before the court b. cases of the other’s harm —that negligence actor’s was in fact the cause is, whether it was the any producing it had in it—or whether effect cause, testimony making it clear that it the result some other other, the not due the one or the and that harm is must be case, the question, a the whether combined effects of both. such distinguished negligence has substantial defendant’s harm, does merely bringing in about the negligible effect testimony clearly proves that the harm is from arise if the Indeed, negligence. cause other than the testimony actor’s that, often makes it if effect, clear defendant’s conduct had the effect was only permits substantial. It is where evidence finding reasonable that conduct had some effect question whether the was substantial rather than effect added.) negligible becomes important.” (Emphases Restatement (Second) a, b, § of Torts Comments at 428-29 Section 431 and recognize Comments a and b possibility may case arise in which the may defendant’s conduct have had some harm, in causing totality but when viewed effect case, of all the evidence a reasonable trier of fact could find that effect defendant’s conduct “negligible” or “insignificant.” This is the standard that the trial court should applied have to the circumstances this case.
III. QUESTIONS HYPOTHETICAL problem with the majority’s resolution of this case becomes apparent hypothetical when two questions argument asked oral *10 first, are considered. In all the of the evidence is the same as that (or presented presented) case, offered be in except this that the beyond any injured record also shows doubt that the worked only once in his on asbestos-containing life product of the I plaintiffs defendant. asked if change counsel this one in the facts present the case would be permit sufficient to the in hypothetical this to introduce evidence of plaintiffs deceased other exposures to products. responded asbestos He no.
In hypothetical, the second again the facts are the as in same this case that the except injured plaintiff was not on someone who worked a containing boiler janitor asbestos but instead was a in a school where a boiler in manufactured defendant was installed the basement. As- any janitor’s sume beyond only the record shows doubt that the asbestos-containing product to defendant’s occurred when she was in in janitor’s during the office the basement at various times single day being a on which repaired. the boiler was Assume further (1) janitor years the was married for 30 ato man who worked during plant in in marriage the entire course of their like the one Thacker, constantly where raw asbestos and asbestos fibers were (2) air, present according testimony in the in expert an offer proof, asbestos fibers have the present would been on cloth- husband’s ing that he wore home from work. I asked counsel whether under these permitted circumstances defendant would be to introduce exposures evidence of these other to asbestos to account for deceased when, later, plaintiff’s years mesothelioma she sues this defendant. again His no. answer was in these extreme even responses that my opinion, counsel’s evidence to introduce
cases, permitted defendant would still majority’s entirely with consistent why that decision in this and one further indication decision case wrong. continue, could, course, with hypothetical questions
These than the last with involving contacts even more remote next one any asbestos as plaintiffs exposure regard to the issue (1) or Examples would be teachers result of defendant’s conduct. (2) school; in the same workers upper students on the floors school, parents, like cafeteria; school occasional visitors (4) postal worker or other repair; three the boiler weeks after office on a few oc- delivery had to be at the school person who occasion Perhaps examples further could even repair. casions after the boiler people include the street from the school. who resided across in either the above Barring sole-proximate-cause defense injured plaintiffs in contact hypothetical questions, or cases where the remote, the defendant’s is even more defies product with Yet, logic finding principled basis and common sense. have trouble barred in upon which I could conclude that such evidence should be holds) (as any hypo- in these majority this case but not barred theticals.
IV THE RULE IN OTHER JURISDICTIONS it, had To this have help court understand issues before we fol- the benefit of amici briefs. One of those amici several writes lowing support position of defendant’s in case: Lipke only virtually [r]ule exists in Illinois. In all courts
“[T]he aware, juries routinely we which are resolve issues hearing after all the evidenceof a cause exposure history. asbestos cases are cases outside of reported We unaware of excluding ground confuse Illinois such evidence that it would jury.” (Emphasis original.) *11 jurisdictions The amici brief then lists several decisions of a throughout nation that have concluded that evidence the the though was admissible even plaintiffs other asbestos as the of as to the defendant were facts those cases were not favorable facts in case. AC&S, 176-77, Asner, 344 Md.
One case is Inc. v. such (the (1996), Appeals Maryland A.2d 260-61 in which the Court of state) factually following the in a case highest court of that wrote similar to this one: a may negligible effect of
“A
based on the
factual defense
be
negligible
product, or on the
exposure
claimant’s
to the defendant’s
effect of the
of
asbestos content
product,
defendant’s
or both. In
such a
degree
case the
of
exposure
]party’s product
non[
the extent of the asbestos content
]party’s product
non[
may
be
demonstrating
non[ ]substantial
relevant to
the
of
nature
the
exposure to,
of,
or
product.
content
defendant’s
But,
ordinarily
a defendant would
generate
jury
not
on
issue
lack
of
only by
substantial factor
showing
dangerousness
causation
Iparty’s product
non[
exposed.
to which the claimant was
Ordinarily a defendant
up
would have to
follow
evidence of
exposure to
products
Jparties
non[
tending
with evidence
prove that the
product
defendant’s
not unreasonably danger-
was
ous or
not
was
a substantial causal factor. Under
circum-
these
proposition
stances the
product
not a
may
substantial cause
probable by
made more
tending
evidence
prove
by
that the
disease
products
claimant’s
was caused
See,
one or
Jparties.
e.g.,
Bros.,
non[
more
Becker v. Baron
138 N.J.
(1994) (whether
processed chrysotile
Such evidence presented to the trial court in this includ- ing tending prove “evidence that the claimant’s disease was caused by Becker, Jparties.” non[ one more inAs cited above, presented defendant contends that it “substantial evidence (i) that: its asbestos, boilers contained chrysotile amphibole and not (ii) asbestos; that, recent scientific studies have concluded unlike amphibole asbestos, chrysotile asbestos does not cause mesothelioma. *** experts acknowledge ongoing Even own that there is an chrysotile scientific capable debate to whether asbestos is caus- ing mesothelioma.” argue
Defendants also as follows: putting type “[EJven contained in [defendant’s] aside boilers, low [decedent] dose asbestos that received from his large enough [defendant’s] boilers was allegedly [Decedent] mesothelioma. on defen- [of worked 20-25 *** 30-year testing dant’s] performed boilers over career. possible [defendant’s] boilers showed that the lifetime asbestos dose person 30-year period to a who installed 600 boilers over a many just walking times lower than the ‘lifetime dose that we have *** Moreover, breathing around asbestos that is in the air.’ even chrysotile experts testified that the dose delivered by amphibole asbestos is lower than the dose delivered asbestos.” *12 83 C County DuPage, v. No. Corp. In Warner/Elektra/Atlantic 1991), district then-federal Ill. March. slip op. at_(N.D. (in following a nonasbestos Rovner wrote Judge liana Diamond context) causes of of alternative excluding evidence about how position: in an untenable injuries decedent’s leaves sole demonstrating they bear the burden “Plaintiffs concede that injury, proximate of their negligencewas a cause [defendant’s] that its evidence that conduct may [defendant] counter with and that But any injury plaintiffs. proximate not a cause of was vacuum, no tried in a with have the issue would may conduct also have been reference to the other actors whose injury. plaintiffs’ In the trial scenario proximate cause of it not argue jury was [defendant] could propose, injured plaintiffs, but could not [events] for the which responsible Thus, jury’s question suggest responsible. who natural —‘If result would be you, not who?’—would be left unanswered. That untenable.” agree Judge analysis.
I Rovner’s with only
I in Illinois earlier referred to defendant’s contention that in this would evidence of the other asbestos case be precluded. support plaintiff nor of the amici Neither contention, expect I them to do if it disputed have which would true, I Il- troubling. Although not it find it Accepting were correct. as entirely procedure linois is free to its rule and establish own courts, encountering Illinois rule apply evidence to that exists important only precludes seemingly Illinois that evidence with major should—at a consequences category for a certain of defendants give Having us reflect. judges pause Illinois reason to minimum — so, singular longer done I am now our Illinois rule is convinced that no (assuming was), justified it ever believe that Illinois should now follow our preclude sister states this evidence.
V CONCLUSION thoughtful court in its extraordinarily trial made clear it scholarly posttrial quite memo motion that was denying law, Yet, unhappy doing given so. the current state of Illinois the court appellate felt itself bound to follow those decisions of court if the to be In this point even trial court believed them erroneous. However, disregard regard, the trial was correct. we are free court them, distinguish erroneous court or appellate decisions Restatement, I Citing the case section conclude we may be. and Kochan. distinguish Lipke, Spain, can—and this case from should— remand trial at which the trial court We should reverse and for new permitted would be to exercise its regarding whether, discretion Restatement, consistent with section 431 defendant should be permitted pursue sole-proximate-cause its defense presenting jury with evidence of the decedent’s asbestos exposures. *13 THE ILLINOIS, PEOPLE OF THE Plaintiff-Appellee, STATE OF v. WELCH, Reginal Welch, Defendant-Appellant.
REGINALD a/k/a
Fifth District No. 5 — 03—0681 Opinion filed December