$5.4 Million Asbestos Verdict Reversed for Failure to Prove Substantial Factor in IllinoisJanuary 23, 2020 – Article
On January 21, 2020, the Illinois Appellate Court reversed a $5.4 million jury verdict holding that the trial court should have granted defendant’s motion for judgment notwithstanding the verdict.
Plaintiff, Jeff Krumwiede, sued a tape and caulk manufacturer, alleged that his father, Willard Krumwiede, died at the age of 81 of pleural mesothelioma he developed as a result of his occupational exposures to asbestos during his career as a window glazier. Several coworkers had testified that Decedent had used Tremco tape and caulk throughout his career. In October 2017, a McLean County jury awarded plaintiff $5 million dollars and was denied judgment notwithstanding the verdict. The defendant tape and caulk manufacturer appealed.
The Fourth District Appellate Court reversed the verdict, holding that Plaintiff had failed to provide evidence sufficient to satisfy Illinois’ substantial factor test to prove causation. Specifically, while the Court found that the record showed decedent worked in close proximity with defendant’s products on a regular and frequent basis, they held it did not necessarily follow from such evidence that he also had frequent, regular, and proximate contact with respirable asbestos fibers from those products. The Court noted that there was an absence of evidence in the record to show under what circumstances defendant’s products released respirable asbestos fibers such that they could be “actually inhaled” by decedent. Further, the Court noted that Plaintiff’s expert, Dr. Arthur Frank, had offered almost no testimony or opinions regarding decedent’s exposure to asbestos fibers from defendant’s products, testifying only that in his experience similar products “can” release fibers under some unknown set of circumstances and in some unknown quantity or concentration. Additionally, when presented with a hypothetical question regarding decedent’s work as a glazier with asbestos-containing products, Dr. Frank opined only “[t]hat [decedent’s] exposures to asbestos would have caused him to develop the mesothelioma that he had that caused his death.” The Court found noticeably absent from his testimony any opinion that exposure to asbestos from defendant’s products was a “substantial” factor in decedent’s development of his disease, particularly when compared to his exposure to asbestos from other sources.
In addition, there were some incidental findings that may have an impact on Illinois asbestos litigation. First, the Court found that Dr. Frank’s “cumulative exposure” testimony is not the equivalent of the “each and every exposure” theory, therefore, it was not contrary to Illinois law and substantial factor causation.
Second, the Court specifically found that Plaintiffs are not required to quantify the number of asbestos fibers to which decedent was exposed to prove causation. Rather, plaintiffs must show more than de minimis exposure, by presenting evidence establishing that the activities engaged in by the injured party when working with a defendant’s products caused the release of respirable asbestos fibers or that the products released asbestos fibers in such amounts that the injured party had more than de minimis, casual, or “minimum” contact with asbestos from the defendant’s products.