On January 31, 2019, the Illinois Supreme Court denied Plaintiff, Charles McKinney’s petition for leave to appeal the Fourth District Appellate Court’s finding that the trial court should have granted defendants’ motion for judgment notwithstanding the verdict and reversing a $4.6 million jury verdict.

Charles McKinney, a living 73 year old former auto mechanic, sued a welding rod manufacturer alleging that he developed mesothelioma as a result of his bystander exposure to asbestos from their welding rods while working at an elevator company for 8 months. A McLean County jury awarded plaintiff $4.6 million dollars and the welding rod manufacturer appealed.

The Fourth District Appellate Court reversed the verdict, holding that the welding rod manufacturer had no duty to warn “plaintiff of a hazard that, at the time, was unknown to the industry in which defendant belonged, namely, the ability of its welding rods to release encapsulated asbestos fibers if the welding rods were simply rubbed together or stepped on.” Significantly, the court notes that the duty is tied to the industry to which defendant belonged, not asbestos generally.

Additionally, the Court held that Plaintiff failed to prove that any asbestos released from defendant’s welding rods were a substantial factor in causing plaintiff’s mesothelioma entitling defendant to judgment notwithstanding the verdict. In its ruling, the Court, citing Thacker, 151 Ill. 2d at 354-55 (1992), held that “plaintiff had to prove he inhaled enough asbestos fibers from the welding rods that the welding rods were ‘a material element and a substantial factor in bringing *** about’ his mesothelioma.” The court went on further to state that “Plaintiff never presented any evidence that, but for the asbestos he breathed during his eight-month employment at Portable Elevator, he would not have contracted mesothelioma from the 40 years he spent as a car mechanic working on asbestos-containing brake lines” and “[h]e never presented any evidence that the asbestos he breathed at Portable Elevator was more than minimal.” They specifically noted that Plaintiff’s expert, Dr. Arthur Frank, could offer no opinion quantifying the amount of asbestos exposure plaintiff may have had from welding rods.

Finally, while not an issue raised in the appeal, the Court called into question Dr. Arthur Frank’s methodology for his opinion that the defendant’s welding rods released asbestos fibers, stating “[w]e agree it would be “sheer, unsubstantiated speculation” to conclude that, simply because other asbestos-containing products, such as cement pipes, released respirable asbestos fibers when they were sawed, cut or beveled, defendant’s welding rods released respirable asbestos fibers when they were jostled around in a packing box, dropped, or stepped on.”

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