WESTLAW © 2020 Thomson Reuters. No claim to original U.S ... · 1/22/2020 · Attorneys and Law Firms Attorneys for Appellant: Brad A. Elward, Christopher P. Larson, and Cathy A

JEFF KRUMWIEDE, Special Administrator of the Estate of..., --- N.E.3d ---- (2020)

2020 IL App (4th) 180434

2020 IL App (4th) 180434

NOTICE: THIS OPINION HAS NOTBEEN RELEASED FOR PUBLICATIONIN THE PERMANENT LAW REPORTS.UNTIL RELEASED, IT IS SUBJECT TOREVISION OR WITHDRAWAL.

Appellate Court of Illinois, FourthDistrict.

JEFF KRUMWIEDE, SpecialAdministrator of the Estate of WillardKrumwiede, Deceased, and RUTHKRUMWIEDE, Individually,

Plaintiffs-Appellees,v.

TREMCO, INC., Defendant-Appellant.

NO. 4-18-0434

January 21, 2020

Appeal from the Circuit Court of McLeanCounty No. 13L79

Honorable Rebecca S. Foley, JudgePresiding.

Attorneys and Law Firms

Attorneys for Appellant: Brad A. Elward,Christopher P. Larson, and Cathy A.Molchin, of Heyl, Royster, Voelker & Allen,of Peoria, and Michael T. Reagan, ofOttawa, for appellant.

Attorneys for Appellees: Chip Corwin andJames Wylder, of Wylder Corwin Kelly,LLP, of Bloomington, for appellees.

OPINION

JUSTICE HARRIS delivered the judgmentof the court, with opinion.

*1 ¶ 1 Plaintiffs—Jeff Krumwiede, thespecial administrator of the estate ofdecedent Willard Krumwiede, and RuthKrumwiede, decedent's wife—brought acause of action against defendant—Tremco,Inc. (Tremco)—raising wrongful death,survival, and loss of consortium claims.They alleged that, while working as awindow glazier, decedent usedasbestos-containing products manufacturedby Tremco, which caused decedent todevelop mesothelioma and resulted in hisdeath. Following a trial, the jury found infavor of plaintiffs. Tremco appeals, arguingit is entitled to a judgment notwithstandingthe verdict (judgment n.o.v.) or a new trial.Alternatively, it argues it is entitled to asetoff for amounts paid in prior settlementswith other defendants. We reverse.

¶ 2 I. BACKGROUND¶ 3 In April 2013, plaintiffs filed theircomplaint against Tremco and more than 50other defendants, alleging defendantsmanufactured and sold asbestos-containingproducts that decedent used or was exposedto while working as a window glazier.Plaintiffs alleged that defendants' productsgave off dust, decedent was exposed to thatdust, and decedent contracted mesotheliomaas a result of his exposure. Plaintiffs asserted

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that before manufacturing the products atissue, defendants knew or should haveknown "that exposure to asbestos causedpulmonary fibrosis and malignancies." Theyalleged that defendants were negligentbecause defendants

"a) failed to warn that exposure toasbestos fibers caused serious disease anddeath;

b) failed to warn that exposure toasbestos fibers caused pulmonaryfibrosis;

c) failed to warn that exposure to asbestosfibers caused malignancies;

d) failed to provide instruction as to safemethods, if any existed, of handling andprocessing asbestos containing products."

Plaintiffs further asserted that decedent diedon September 26, 2012, and that defendants'negligence was a proximate cause of hisinjury and death.

¶ 4 In October 2017, the trial courtconducted a jury trial. At the time of trial,Tremco remained the sole defendant in thecase, and it is the only defendant at issue onappeal. With respect to Tremco, plaintiffscomplained of decedent's exposure to twoasbestos-containing products, "440 Tape"and "Mono caulk." Both products weremanufactured using chrysotile-type asbestosfibers.

¶ 5 Evidence showed decedent worked as awindow glazier, installing glass into woodor aluminum frames, from approximatelythe mid-1950s until his retirement in the

early 1990s. On September 26, 2012,decedent passed away at the age of 81. Anautopsy showed he had "malignantmesothelioma consistent with industrialexposure of asbestos." Asbestos fibers were"identified within the lungs,microscopically."

¶ 6 Plaintiffs presented the testimony of twoof decedent's coworkers, Dennis Schultzand Richard Darr. Both men worked aswindow glaziers with decedent in the 1960sand 1970s and testified that they frequentlyused Tremco's Mono caulk and 440 Tape.Schultz asserted those products were used"[j]ust about every day" in their line ofwork. On a large job, he would use hundredsof tubes of Mono caulk and hundreds of feetof 440 Tape. He acknowledged usingproducts from manufacturers other thanTremco but asserted that Tremco's productswere the "most specked [sic] product[s] outthere by architects." Darr described the 440Tape as the "primary tape" that he anddecedent used.

*2 ¶ 7 The 440 Tape arrived at job sitespackaged in a cardboard box with multiplerolls of tape per box. The tape was describedas "tacky," and Darr testified it would stickto his hands. The 440 Tape had to be cutwhen applied to a window. Tremco's Monocaulk was applied with a caulking gun. Italso arrived in boxes with multiple tubes ofcaulk in each box. Schultz testified that on afour by five window, he would use a quarterto half a tube of caulk. Workers used theirfingers to "smooth * * * off' the caulk andrazors to "scrape" it. The Mono caulk wouldget on rags and the workers' clothing andhands.

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2020 IL App (4th) 180434

¶ 8 Schultz denied observing any visible

dust when cutting the 440 Tape or using the

Mono caulk. While working with decedent,

they worked in locations where insulators

were present and wrapping pipes in their

vicinity or general area. Schultz did not

know if the insulators created any dust. Darrtestified that he never saw any visible dustcoming off of the Mono caulk or whencutting the 440 Tape. However, there were

times when he and decedent had to remove

the Mono caulk that had dried using a chisel.He stated they "could have run up some[visible] dust once in a while" but he did not

remember.

¶ 9 Schultz testified that in the years he anddecedent used Tremco's 440 Tape andMono caulk, he did not see "anything on theproduct[s] indicating that asbestos was oneof the ingredients." He also did not recallever receiving any information from Tremcothat asbestos was harmful and that it couldcause asbestosis, lung cancer, ormesothelioma. Darr testified he did not payattention to what Tremco's products weremade of and never saw information on thepackaging indicating the products containedmaterials that were harmful or could causelung disease. He first learned Tremco'sproducts contained asbestos in the 1990s.

¶ 10 Plaintiffs called Steven Milano,Tremco's corporate representative withrespect to asbestos litigation, as an adversewitness. Beginning in 1995, Milano workedon and off for Tremco as a staff chemist. InMarch 2016, he began working as Tremco's

director of research and development forconstruction, sealants, and waterproofing.

Milano testified he reviewed more than

14,000 pages of documents concerning

Tremco's historical use of asbestos as wellas the testimony of its previous corporate

representatives on the subject. He agreed hewas "the most knowledgeable person"regarding the subject of Tremco's

asbestos-containing products.

¶ 11 According to Milano, "all asbestoscontaining formulas" were removed fromTremco's product offerings before he beganworking for Tremco in 1995. In 2006,Tremco's legal counsel asked Milano to

"mix up a batch of caulk" and "a batch oftape." The tape was 440 Tape but the caulkwas not Mono caulk. Milano was providedwith formulas to be used for the caulk andtape that were from Tremco's "formulationrecords" from 1974 to 1982. Milano alsoreceived raw asbestos to use in theformulas. He testified that he understood hewas remanufacturing products with oldformulas so that they could be tested "for thepurposes of litigation." Milano made therequested products, and they were "shipped*** off to a lab called EPI." According toMilano, the EPI testing was done "to showand demonstrate that no detectible [sic]asbestos fibers [were] released from"Tremco's products.

12 Milano identified the Tremco facilitieswhere asbestos-containing products weremanufactured, including its Kinsman,Toronto, Barberville, and Columbusfacilities. He agreed that such facilities used"raw bags" of asbestos. Milano testified that"Tremco's understanding of asbestos relatedhazards developed with the onset of [theOccupational Safety and HealthAdministration (OSHA) regulations on

asbestos] in the early '70s and progressed

from there." More specifically, he agreed

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2020 IL App (4th) 180434

that Tremco knew about potential hazardsassociated with raw asbestos fiber in 1971.He also testified that Tremco had knowledgethat asbestos could be harmful in "[t]he late'60s to early '70s."

*3 ¶ 13 According to Milano, Tremco beganmaking "efforts at the onset of OSHA tostart trying to find alternatives to asbestos in[its] products." In 1974, it had a goal ofbecoming asbestos-free. Tremco did notsucceed in its goal until 15 to 20 years later.

¶ 14 Milano identified internalcorrespondence from Tremco and otherdocuments describing the condition ofTremco's Kinsman facility, where Tremcomanufactured roofing materials. Thosedocuments were admitted into evidence andshowed that in November 1971, a Tremcoemployee described Tremco's Kinsmanfacility as being "grossly negligent" in areassubject to OSHA regulations. One problemidentified in the correspondence involvedthe use of asbestos as a "sweepingcompound." In June 1974, violations werenoted in the area of "asbestos usage" andasbestos handling at the plant was describedas "poor." In January 1973, air samples fromTremco's Kinsman facility were aboverecommended limits. Additionally, anOSHA inspection in December 1974 foundvarious violations, including Tremco'sfailure to post caution signs at entrances tothe asbestos area and to "ensure that allplaces of employment be maintained free ofaccumulations of asbestos fibers if withtheir dispensing there would be an excessiveconcentration."

¶ 15 Milano agreed that Tremco was anIllinois employer and should have known

about the Illinois Workers' OccupationalDiseases Act. Plaintiff submitted portions ofthat act as an exhibit and Milanoacknowledged that, in March 1936, itreferenced employer liability in cases ofasbestosis, a nonmalignant disease causedby asbestos. He further testified thatTremco's headquarters was in Ohio andacknowledged that Ohio had regulations in1947 regarding acceptable limits regardingexposure to asbestos in an employmentsetting. Milano agreed that given the Ohioregulations, "Tremco would have knownthat there was potential harm withasbestos." He acknowledged that "Tremcoknew in the '40s asbestos could beharmful."

¶ 16 Milano further identified a brochureproduced and distributed by Tremco in1987, entitled "WHY WAIT?" The brochurenoted that the Environmental ProtectionAgency (EPA) proposed a rule to bancertain asbestos products and to phase outthe use of asbestos over the next 10 years. Italso stated that the EPA had concluded that" 'no level of exposure is without risk.' "According to Milano, the "WHY WAIT?"brochure came out of Tremco's roofingdivision. Further, to his knowledge,decedent was never an employee of Tremcoand did not work at any of its manufacturingfacilities.

¶ 17 Plaintiffs next presented the testimonyof Dr. Arthur Frank, their retained medicalexpert. Dr. Frank testified he was aboard-certified physician in both internaland occupational medicine, held a Ph.D. inbiomedical sciences on the subject ofasbestos and how it affects respiratorytissue, and had performed asbestos-related


JEFF KRUMWIEDE, Special Administrator of the Estate of..., --- N.E.3d --- (2020)

2020 IL App (4th) 180434

research since 1968. He describedmesothelioma as a cancer of the pleura, orlining of the lung, and other similar tissues.In the United States, mesothelioma "isvirtually only caused *** by exposure toasbestos."

¶ 18 According to Dr. Frank, in "modernhistory," information regarding the healthhazards of asbestos went back to the late1890s. There were articles on the subject inthe early 1900s, and the term asbestosis wascoined in 1924. In 1942, the head ofoccupational cancer studies at the NationalCancer Institute reported that he consideredasbestos to be a cause of lung cancer. Dr.Frank testified that asbestosis, lung cancer,and mesothelioma could all be fatal diseasesand he had never seen a "cured case ofmesothelioma."

*4 ¶ 19 Dr. Frank identified "six fibers thatcollectively are called aibestos." Hedescribed the fibers as "extremely small"and stated that all of them caused disease.Dr. Frank acknowledged that someindividuals were of the opinion thatchrysotile asbestos fibers, unlike other fibertypes, could not cause mesothelioma.However, he disagreed, stating there was"[r]eally nothing that supports" suchopinions and that all of the governmentagencies in this country "recognize that allfiber types, including chrysotile, causemesothelioma." Dr. Frank testified thatseeing "what fibers are in the lung" is not away of determining what asbestos fibers aperson inhaled. He noted that the differenttypes of fibers stayed in the lung fordifferent amounts of time. Crocidolite andamosite fibers "take up residence in thelung, and they tend to stay there" and have a

half-life of two to three years. Alternatively,for chrysotile fibers, "the average half-life isabout 90 days." The fact that a fiber leavesthe lung does not mean that it leaves thebody. Dr. Frank stated that chrysotile fibersare "the fiber that most readily gets out tothe pleura" where mesothelioma occurs.

¶ 20 Dr. Frank stated that there is no knownsafe level of exposure to asbestos. Becauseasbestos is a naturally occurring mineral,"we all have some exposure" (i.e.,"background" or "ambient" exposure).When questioned by plaintiffs' counselregarding how regularly and frequently aperson must be exposed to asbestos todevelop mesothelioma, Dr. Frank testifiedthat "it's not something that requires many,many years or constant ongoing exposure."He stated as follows:

"Again, one time will do it. So there's noset frequency. Obviously it's a verysimple principle. We call it thedose-response relationship. The moreyou're exposed, the greater the dose, themore likely you are to get disease.

So someone who's exposed for a weekhas a certain risk. For a year, their riskwould be higher, assuming the samelevels. And then, you know, if they workfor four decades or two decades orwhatever, the risk is going to be evenhigher because the exposure was higherover time."

Dr. Frank asserted that there was noscientific way to determine which exposureto asbestos caused a person to develop adisease, stating: "It is the cumulativeexposure, the totality of the exposure that we

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2020 IL App (4th) 180434

say that causes the disease."

¶ 21 Regarding the ability ofasbestos-containing products to releaseasbestos fibers, Dr. Frank testified asfollows:

"I've been doing this work a long time,and there's not a single product I've evercome across that has not had the capacityto give up fibers when worked with. Imean, you think of something likeasbestos cement pipe. You would think,well, you know, a piece of cement, it'snot going to give up fibers.

But if you cut it, drill it, bevel it, youknow, work with it the way pipe isworked with, even there, asbestos fiberswill come out. And when the water flowsthrough it, because it's often used forwater system piping, it pulls out asbestosfibers even out of something like cement.So there isn't a product that doesn't havethe ability to give up asbestos."

Dr. Frank maintained that even encapsulatedasbestos products can give off respirablefibers. The following colloquy occurredbetween Dr. Frank and plaintiffs' counsel:

"Q. Doctor, in the course of your—of thelast 40 years of doing this, have any of thecases you've looked at involved rubber orbutyl tape or—or a caulking for windowsor doors?

A. Yes *** they have.

Q. Can those products give off asbestos?

A. Yes, they can."

¶ 22 Dr. Frank stated that decedent'smedical record showed "that he developed amalignant pleural mesothelioma." He opinedthat mesothelioma was his cause of death.Additionally, the asbestos fibers that werefound in decedent's lung indicated that he"had significant prior exposure to asbestos."

¶ 23 Plaintiffs' counsel asked Dr. Frank toassume that decedent worked as a windowglazier, using "caulk daily during [his]career" and, during the 1960s and 1970s,using "asbestos-containing tape." Based onsuch facts, Dr. Frank opined decedent's"exposures to asbestos would have causedhim to develop the mesothelioma that he hadthat caused his death." He testified thatwhen a person is exposed to respirableasbestos fibers in their work, that exposureis "above background." Dr. Frank furtheropined "that all of the exposures that[decedent] had from any and all products ofany and all fiber type would havecontributed to his developing hismesothelioma." He stated that the overalltotality of what a person is exposed to, thecumulative dose, is what is implicated inmesothelioma.

*5 ¶ 24 On cross-examination, Dr. Franktestified that background levels of asbestoswere "many orders of magnitude less thanwhat's legally allowed in the workplace."When discussing exposure to asbestos ascausative of disease, it was his view that"[i]es all the exposures together that giveyou the cumulative exposure." Dr. Frankalso stated that the cumulative exposure"may come from multiple sources."

¶ 25 He explained that respirable fibersmeant "fibers that can actually get down into


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2020 IL App (4th) 180434

the lung." He testified some fibers were toobig and "won't get down there." Dr. Frankagreed that "the testing and thedetermination of the extent to whichmeasurable asbestos fibers are releasedduring the manipulation of any particularproduct" was "not the kind of work that" heperformed. Rather, that kind of work wasperformed by industrial hygienists,mineralogists, engineers, or geologists.Further, he agreed that such testing wouldhelp determine the "dose," or how muchasbestos entered the body, from anyparticular product. The following colloquythen occurred between Tremco's counseland Dr. Frank:

"Q. And as I understand your generalopinion, it is that any and every exposureover background constitutes a substantialcontributing factor in thedevelopment—development ofasbestos-related disease, and that includesas it specifically relates to [decedent's]mesothelioma. Do I understand thatcorrectly?

A. All of the exposures that he had to anyand all products with any and all fibertypes contributed to his disease. I can't sithere and tell you what his relativeexposure was to product A, B, C, D, E, orF. I can just say whatever can bedocumented that he was exposed to, theywould all be part of his cumulativeexposure.

* * *

Q. Is it your opinion then that each andevery fiber above background is part ofthe overall contribution to someone's

cumulative exposure?

A. No, that is not my opinion. My opinionis that it is the cumulative exposure, all ofthe fibers together, that give someonedisease.

* * *

Q. Well, let me ask you this. Isn't it youropinion that in terms of exposure that iscausative it's either zero or it'ssubstantial; there's no such thing as notsubstantial?

A. There is no such thing as an amount ofexposure that doesn't contribute to one'scumulative exposure. It goes back to thatcigarette example. Either you have to saythat one cigarette is insubstantial or thatthey were all substantial because theymade up collectively the cumulativeexposure."

Dr. Frank testified that "some exposures aremore and some are less, but you can't leaveany of them out. So it's either zero or itcontributed."

¶ 26 Plaintiffs also presented the testimonyof Dr. John Migas, a board-certifiedphysician in the areas of internal medicineand oncology, who treated decedent duringhis lifetime for colon cancer. Dr. Migasdescribed his treatment of decedent, whichincluded six months of chemotherapy. Hestated that, in September 2011, decedent'scolon cancer appeared to be in completeremission.

27 Dr. Migas described the medicaltreatment decedent received immediately

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2020 IL App (4th) 180434

prior to his death in September 2012 andabout the relationship between asbestos andmesothelioma. He stated that asbestos cancause mesothelioma. According to histraining, there are multiple asbestos fibersand all of the fibers could causemesothelioma. Dr. Migas stated he had seenapproximately 50 cases of mesotheliomaduring his career and all of them hadhistories involving exposure to asbestos.Some of his patients had long-standingexposures as a result of the patient'semployment. The shortest case of exposure"was a weekend exposure." Dr. Migastestified that some of his patients also hadbeen exposed to asbestos from more thanone place. He stated that "it appears that themore asbestos that you take in per timeelement seems to be consistent with a higherrisk."

*6 ¶ 28 Plaintiffs' counsel asked Dr. Migasto assume that decedent worked as awindow glazier from 1956 until 1991; fromthe 1950s to the 1980s he worked daily withasbestos-containing tapes and caulk; and heworked around other "construction trades"performing their duties, including insulators.Based on those facts, Dr. Migas opined that"if there is asbestos containing [sic] and hehad mesothelioma, I think that those couldall be implicated as a risk that could havepotentially caused mesothelioma." Whenusing the word "risk," he meant thatsomething was "more likely than not acontributor."

¶ 29 On cross-examination, Dr. Migasagreed that he treated decedent only inconnection with his diagnosis of coloncancer and not for anything related tomesothelioma. He did not hold himself out

as an expert in the field of asbestosmedicine and had not done any research inthat area. Dr. Migas also agreed that iftesting on an asbestos-containing productresulted in no release of detectablerespirable fibers, then the product would notbe a risk factor for an asbestos-relateddisease.

¶ 30 After plaintiffs rested, Tremco movedfor a directed verdict, arguing plaintiffsfailed to meet their burden of establishingthat decedent was exposed to asbestos fibersfrom its products or that exposure toasbestos fibers from its products was asubstantial factor in causing decedent'smesothelioma. In response, plaintiffs' citedDr. Frank's testimony that "all productsrelease fibers," that he was familiar withbutyl tapes and caulking, and that suchproducts "release fibers." The trial courtdenied the motion.

¶ 31 As part of its case, Tremco presentedthe testimony of Dr. Michael Graham, aforensic pathologist. Dr. Graham revieweddecedent's medical records, depositionsfrom decedent's coworkers, and microscopicslides from decedent's tissues. He notedvarious medical issues that decedent had,including colon cancer in 2010, heartdisease, and malignant mesothelioma. Dr.Graham testified that decedent's autopsyestablished the presence of mesothelioma. It"also established the presence of anincreased amount of asbestos andspecifically amosite asbestos in [decedent's]lung tissue and no increase in any othertype."

¶ 32 Dr. Graham opined that "the primarycause" of decedent's death was his



2020 IL App (4th) 180434

malignant mesothelioma and that his heartdisease was also "involved." He stated thereare two major groups of asbestos—theserpentine group, which is thechrysotile-type of asbestos fibers, and theamphibole group, which included amositeand crocidolite asbestos fibers. Dr. Grahamopined that amphibole asbestos causedmalignant mesotheliomas in humans. Withrespect to decedent, the autopsy showed that"[t]he only fibers that were found in anabnormal concentration in more thananybody just walking around * * * wereamosite fibers." According to Dr. Graham,amphiboles could "stick around" in tissuefor decades, having more time to dodamage. Dr. Graham acknowledged thatthere was "some controversy" regarding therelationship between exposure to chrysotileasbestos fibers and mesothelioma. Heopined that heavy prolonged exposure tocontaminated chrysotile fibers could causepleural mesotheliomas.

¶ 33 According to Dr. Graham, decedent'smesothelioma was due to amosite fibers. Hetestified decedent may have been exposed toamosite asbestos from working aroundpipefitters and insulators in the sixties whoworked with thermal insulation. Dr. Grahamalso opined that decedent's work withTremco's products "had nothing to do" withhis development of mesothelioma.

*7 ¶ 34 On cross-examination, Dr. Grahamacknowledged that he was not a "researcherin the area of asbestos or asbestos disease."He testified he occasionally made adiagnosis of asbestos-related diseases, buthe did not treat patients with such diseases.Dr. Graham agreed "that the majority of ***asbestos fibers that get to the pleura are

short chrysotile fibers." He opined thatTremco's products "wouldn't release anysignificant amount of fiber" and "certainlynot enough" to cause an asbestos-relateddisease. Dr. Graham acknowledged variouspublished journals, articles, and studies thatset forth the conclusion that chrysotile fiberswere mesothelioma-producing fibers.

1135 Tremco also presented the testimony ofDr. William Longo. Dr. Longo stated he hada doctorate in materials science andengineering. He was the president ofMaterials Analytical Services (MAS), acompany that provided consulting andlaboratory analysis services. Dr. Longostated MAS was certified to do EPA workfor the analysis of asbestos and certified bythe American Industrial HygieneAssociation to perform fiber counting byoptical and transmission electronmicroscopy. Since 1998, MAS "processedand analyzed" approximately 400,000 to450,000 asbestos samples, both bulk and airsamples.

¶ 36 At Tremco's request, MAS studied theMono caulk and 440 Tape. Tremco providedthe products, and Dr. Longo was personallyinvolved in the testing and analysis of thoseproducts. He stated that both opticalmicroscopes, also referred to as phasecontrast microscopy (PCM) analysis, andtransmission electron microscopes wereused by MAS to analyze asbestos samplesfrom Tremco's products. Opticalmicroscopes were used in protocolsspecified by OSHA and could "magnify upto about 2000 times" or 3000 to 4000 timeswith computer enhancement. Alternatively,a transmission electron microscope, or TEManalysis, was mandated by the EPA to test



2020 IL App (4th) 180434

air samples for schools and was morepowerful. Dr. Longo stated an electronmicroscope "can magnify up to one to twoto [three] million times."

¶ 37 Dr. Longo testified a bulk sampleanalysis of Tremco's 440 Tape was done todetermine asbestos content of the product.From that analysis, it was determined thatthe 440 Tape contained chrysotile asbestosand that the percentage of asbestos in thetape was approximately 22%. A bulk sampleanalysis of the Mono caulk showed that italso contained chrysotile asbestos fibers andthat the amount of asbestos in the caulk was0.3 to 0.5%. Although MAS did not performa full analytical analysis of the productssubmitted for testing, both products had thesame properties as their historicalspecifications.

38 Dr. Longo next described conductingwork practice studies on both of Tremco'sproducts. He stated a work practice studyinvolved performing work activities or"worst case scenario" activities to determineif a product would release measurableamounts of respirable asbestos fibers. Withrespect to Tremco's 440 Tape, Dr. Longotestified that the product he analyzed wasmade in 2006 by Milano for testingpurposes. The work practice studyperformed on the 440 Tape involvedhandling the tape and cutting the tape 70times over a 10-minute period. Air sampleswere taken from six inches from the mouthand nose of the person performing the test,as well as seven to eight feet away from thework activity. Dr. Longo testified they alsostudied the clothing of the individualperforming the testing. Results of the airsample analysis on the 440 Tape showed

that "the amount of asbestos fibers in the airfor an occupational exposure was too lowfor [MAS] to detect." Dr. Longo testified asfollows:

"The amount of—the amount of asbestosfibers in the air for an occupationalexposure was too low for us to detect itwith our technique so we came up withzero amount of asbestos fibers for ouranalysis, and that was both PCM andtransmission electron microscopy.

*8 So we have a certain detection limit,meaning I can only analyze so far, and Ican only go to that amount that is ourdetection limit detecting 1 fiber. If it isbelow that concentration, we can't detectit. So it was below our ability to analyzeand to detect the asbestos so we wouldsay that it was below our detection limit."

¶ 39 Regarding the Mono caulk, Dr. Longotestified that MAS received a sample thatwas estimated to have been manufactured inthe early 1980s and not "in its original form,meaning you couldn't stick that cartridge ina caulking gun and actually caulk somethingwith it because it had hardened." He alsotestified that the caulk sample "had beenalready analyzed once by another lab" andhad "an actual hole or flap cut out of the—itwas in a cardboard tube where the samplehad been taken." Dr. Longo then testified asfollows regarding the work practice studyperformed on the caulk:

"So we thought about it and determinedthat the worst case scenario for a potentialexposure for a glazier, in my opinion, iscoming back later and removing thematerial, such as the window broke and

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you have to replace it.

The initial application of the material, it'sin a—if you've all seen caulk, it's in avery tacky, sticky form and that typicallydoesn't release asbestos fibers, they're allwrapped up into the—I think of flypaper,they're all stuck in there.

So what we did was * * * we took theTremco cartridge and we cut the sectionof cardboard off to expose, say, a halfbarrel of the hardened caulk and took anelectric drill with a brass grinder andactually ground off an eighth inch of thetop of the barrel of the caulk."

According to Dr. Longo, testing alsoinvolved cutting strips of the caulking off,putting it into an oven at 230 degreesFahrenheit for 24 hours to harden it, andthen grinding it off with a drill and a wirebrush. Dr. Longo stated that, like with the440 Tape, air sample testing did not detect"any measurable amounts of asbestosfibers." Also, analysis of the clothing wornby the individuals testing both productsshowed "the amount of asbestoscontamination transmitted to the clothingwas below the detection limit of themethod."

40 Dr. Longo testified that Tremco'sproducts were thermoplastic materials,which always stayed "pliable" and had a"stickiness." Such materials were uniqueand did not behave the same way as otherasbestos-containing materials that releaseasbestos fibers when subjected to grinding.When asked whether Tremco's 440 Tapewould release measurable or detectablerespirable asbestos fibers if sawed, sanded,

cut, ground, or abraded, Dr. Longo opinedas follows:

"It would be my opinion that using thisproduct would not produce any significantexposure in an occupational setting. Ican't say that it doesn't release any fibers.It's sort of like any analytical technique.If somebody comes out and says that thismaterial will never release [one] fiber orany fibers, he's just making that up.

All you can say is I've measured it usingthe standard protocols that are used inindustrial hygiene situations foroccupational exposures and I cannotdetect any fibers."

Dr. Longo stated he had the same opinionwith respect to Tremco's Mono caulk.

¶ 41 On cross-examination, Dr. Longotestified that permissible exposure limitsunder OSHA were "based on the opticalmicroscope PCM counts." He stated "to becounted, an asbestos structure or fiber has tobe a certain length and a certain width. [It][h]as to be greater than 5 micrometers inlength and greater than about [0].2micrometers wide for the opticalmicroscopist to actually see the fiber." Dr.Longo also testified that the typicalindividual chrysotile fiber was not 0.2micrometers wide. For chrysotile fibers tobe observed on an "optical or PCMmicroscope," there would "have to be abundle of fibers." Dr. Longo agreed thatwhen chrysotile fibers are released in whathe would consider a significant amount,80% to 85% of the fibers "are smaller thanwhat allows them to [be] characterize[d] asan OSHA fiber." Further, a dust count using



2020 IL App (4th) 180434

the optical microscopy system and OSHAfiber definition or protocol would reflect"only a very small percentage of the actualchrysotile fibers that are in the air."

*9 ¶ 42 Dr. Longo agreed that he was not amedical doctor and did not give opinions onmedical causation for asbestos disease.Further, the question of how many or howfew respirable asbestos fibers put someoneat risk for disease was "not [his] area." Thepotential toxicity of asbestos fibers thatwere not observed under OSHA standardswith optical microscopy was also for othersto determine and not within his area ofexpertise.

¶ 43 When referencing "detection limits" inconnection with the testing MAS performed,Dr. Longo was referencing "OSHA fibersand concentration of OSHA fibers." Heagreed that the objective of the testing wasto use OSHA criteria for determining"whether or not there was any significantoccupational exposure." The followingcolloquy occurred between plaintiffs'counsel and Dr. Longo:

"Q. Okay. *** In other words, you're notsaying that [decedent] was exposed or notexposed to respirable asbestos fibers fromhis usage of Tremco products, you'resaying that based on your testing it wasnot a significant level of exposure; is thatcorrect?

A. That's correct. Nobody can say thatthere wasn't one or [two] fibers by chancethat got released, but there's no way todetect it. And in the method we usethere's no way to detect that.

In this particular case, this particularproduct using the OSHA protocols at—toour detection limit there was no exposure.Once you start going below our detectionlimit, certainly couldn't rule out a fiber ortwo, but nothing significant."

Dr. Longo testified that testing results forTremco's products were below OSHA's"level for what [it] deem[s] important." Onredirect examination, Dr. Longo clarifiedthat MAS's testing of Tremco's productsused a transmission electron microscope toidentify respirable asbestos fibers.

¶ 44 Ultimately, the jury returned a verdictin favor of plaintiffs and against Tremco. Itassessed damages totaling $5,063,324.52.

¶ 45 In March 2018, Tremco filed a posttrialmotion, seeking a judgment n.o.v. or a newtrial on all issues. It alternatively sought asetoff for amounts plaintiffs received fromother settlements. Following a hearing inJune 2018, the trial court denied Tremco'srequests for a judgment n.o.v. and a newtrial. However, "[a]s a result of set offs," itentered a modified judgment in favor ofplaintiffs and against Tremco in the amountof $3,272,083.31.

46 This appeal followed.

¶ 47 II. ANALYSIS

¶ 48 A. Judgment N.O.V.¶ 49 On appeal, Tremco first argues that it isentitled to a judgment n.o.v. It contendsplaintiffs failed to prove causation becausethey presented no competent or admissible


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evidence that Tremco's Mono caulk or 440Tape released respirable asbestos fibers.Tremco also argues that, assuming itsproducts did release respirable asbestosfibers, plaintiffs presented no competentevidence that decedent was exposed to thosefibers with " 'such frequency, regularity andproximity' " that they could be viewed as asubstantial factor in causing decedent'smesothelioma.

¶ 50 A motion for judgment n.o.v. raises thesame questions and is governed by the samerules of law as a motion for a directedverdict. Lawlor v. North American Corp. ofIllinois, 2012 IL 112530, ¶ 37, 983 N.E.2d414. Such motions present a question ofwhether "there is a total failure or lack ofevidence to prove any necessary element ofthe [plaintiffs] case." (Internal quotationmarks omitted.) Id "In ruling on a motionfor a judgment n.o.v., a court does not weighthe evidence, nor is it concerned with thecredibility of the witnesses; rather, it mayonly consider the evidence, and anyinferences therefrom, in the light mostfavorable to the party resisting the motion."Maple v. Gustafson, 151 Ill. 2d 445, 453,603 N.E.2d 508, 512 (1992). Ultimately,"[a] motion for judgment n.o.v. should begranted only when all of the evidence, whenviewed in its aspect most favorable to theopponent, so overwhelmingly favors [a]movant that no contrary verdict based onthat evidence could ever stand." (Internalquotation marks omitted.) Lawlor, 2012 IL112530, ¶ 37.

*10 ¶ 51 "When the trial court haserroneously denied a motion for judgmentn.o.v., we will reverse the verdict without aremand." Id On appeal, we apply a de novo

standard of review. Id.

¶ 52 In negligence actions such as this one, anecessary element of proof "is that thedefendant's asbestos was a 'cause' of thedecedent's injuries." Thacker v. UNRIndustries, Inc., 151 Ill. 2d 343, 354, 603N.E.2d 449, 455 (1992). "[C]ausationrequires proof of both 'cause in fact' andlegal cause.' " Id. A plaintiff may not "takethe causation question to the jury when thereis insufficient evidence for the jury toreasonably find that the defendant's conductwas a cause of the plaintiffs harm orinjury." Id at 355.

¶ 53 In asbestos cases, a plaintiff may prove"cause in fact" under the "substantial factor"test, whereby "the defendant's conduct issaid to be a cause of an event if it was amaterial element and a substantial factor inbringing the event about." Id at 354-55. InThacker, the supreme court adopted the "frequency, regularity and proximity' test asa means by which an asbestos plaintiff canprove more than minimum contact toestablish that a specific defendant's productwas a substantial factor in being a cause infact of a plaintiffs injury." Nolan v.Weil-McLain, 233 Ill. 2d 416, 432, 910N.E.2d 549, 558 (2009) (citing Thacker, 151Ill. 2d at 359). Under that test, the plaintiffmust show that the "injured worker wasexposed to the defendant's asbestos throughproof that (1) he regularly worked in an areawhere the defendant's asbestos wasfrequently used and (2) the injured workerdid, in fact, work sufficiently close to thisarea so as to come into contact with thedefendant's product." Thacker, 151 Ill. 2d at359.

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"In addition, by adopting the [frequency,regularity, and proximity test], Thackerthereby rejected the argument *** that solong as there is any evidence that theinjured worker was exposed to adefendant's asbestos-containing product,there is sufficient evidence of cause infact to allow the issue of legal causationto go to the jury." (Emphasis in original.)Nolan, 233 Ill. 2d at 434.

¶ 54 1. Release of Respirable AsbestosFibers55 Here, Tremco initially argues plaintiffs'

evidence was insufficient to show causationbecause plaintiffs presented no competent oradmissible evidence that Tremco's productsreleased respirable asbestos fibers. Itcontends that Dr. Frank's testimony on thesubject was based on unsubstantiatedspeculation. Tremco cites this court's recentdecision in McKinney v. Hobart BrothersCo., 2018 IL App (4th) 170333, 127 N.E.3d176, to support its argument.

¶ 56 In McKinney, the plaintiff alleged hedeveloped mesothelioma after inhalingasbestos fibers from the defendant'sasbestos-containing welding rods. Id. ¶ 1. Ajury returned a verdict in the plaintiff'sfavor, and the defendant appealed. Id. Onreview, this court reversed, finding thedefendant was entitled to a judgment n.o.v.on two alternative bases. Id. ¶¶74, 83.

¶ 57 In considering the issues presented forreview, we addressed challenges to thetestimony and opinions of the plaintiff'sretained expert, Dr. Frank—the same Dr.Frank who testified in the case at bar. In

McKinney, Dr. Frank opined that thedefendant's welding rods were capable ofgiving off respirable asbestos fibers. Id ¶17. As a basis for his opinion, Dr. Franktestified that "in his decades of experiencewith asbestos, [he] had never known of anasbestos-containing product that, ifproperly manipulated,' would not give offasbestos fibers." Id. Dr. Frank also relied on" 'the work of Dr. Dement with fibers beingreleased from welding rods.' " Id.

*11 ¶ 58 On appeal, the defendantcomplained that Dr. Frank's fiber-releasetestimony was inadmissible because " 'itwas not the product of a reliablemethodology.' " Id. ¶ 40. Initially, this courtagreed that Dr. Frank's opinions werespeculative to the extent that they werebased on never having seen anasbestos-containing product that did notrelease iiibkitoIS fiber. Id ¶ 44. Specifically,we stated as follows:

"We agree it would be 'sheer,unsubstantiated speculation' [citation] toconclude that, simply because otherasbestos-containing products, such ascement pipes, released respirable asbestosfibers when they were sawed, cut, orbeveled, [the] defendant's welding rodsreleased respirable asbestos fibers whenthey were jostled around in a packing box,dropped, or stepped on." Id (quotingWiedenbeck v. Searle, 385 Ill. App. 3d289, 293, 895 N.E.2d 1067, 1070 (2008)).

"While testimony grounded in expertanalysis of the known physical facts iswelcomed, conclusory opinions based onsheer, unsubstantiated speculation should beconsidered irrelevant." (Internal quotation



2020 IL App (4th) 180434

marks omitted.) Wiedenbeck, 385 Ill. App.3d at 293. However, because Dr. Frank alsorelied on a welding-rod study from anotherexpert, which the defendant did notchallenge, we concluded there was no abuseof discretion in the admission of histestimony. McKinney, 2018 IL App (4th)170333 11 45-47.

¶ 59 Here, Dr. Frank's testimony wasremarkably similar to his testimony inMcKinney. When addressing the ability ofasbestos-containing products to releaseasbestos fibers, Dr. Frank testified that"there's not a single product I've ever comeacross that has not had the capacity to giveup fibers when worked with." He gave as anexample "an asbestos cement pipe," whichwould release asbestos fibers when cut,drilled, beveled, or exposed to the flow ofwater. Dr. Frank concluded that "there isn'ta product that doesn't have the ability togive up asbestos."

¶ 60 We agree that, alone, such testimonywas unsubstantiated and speculative.However, like in McKinney, Dr. Frank alsoprovided another basis for his fiber-releaseopinion. On questioning by plaintiffs'counsel, Dr. Frank testified that in his 40years of experience, he "looked at" casesinvolving rubber or butyl tape or caulkingfor windows and doors and affirmed thatthey "can" give off asbestos fibers. BecauseDr. Frank's opinions were supported by hisexperience in working with asbestos andasbestos-containing products similar to theones at issue in this case, we disagree thathis fiber-release opinion was speculative orunsubstantiated.

¶ 61 On review, plaintiffs point to matters

outside of Dr. Frank's testimony that theyargue also support a finding that Tremco'sproducts were capable of releasing asbestosfibers. First, they note that Dr. Longo,Tremco's expert, testified he could not ruleout the possibility of fiber release fromTremco's products. In particular, he testifiedthat although his testing and analysis ofTremco's products did not detect respirableasbestos fibers, "[n]obody can say that therewasn't one or [two] fibers by chance that gotreleased." We agree with plaintiffs that suchtestimony supports an inference thatTremco's asbestos-containing productswere capable of releasing fibers.

62 Second, plaintiffs further argue that anadverse inference may be drawn fromTremco's failure to produce the results oftesting performed on its products by EPI in2006. They note that the jury in this casewas instructed pursuant to Illinois PatternJury Instructions, Civil, No. 5.01 (approvedJuly 18, 2014) (hereinafter IPI Civil No.5.01), which "informs the jury that it mayinfer that certain evidence would have beenadverse to a party where that evidence wasnot produced by the party and was withinthe party's control." Lakin v. Casey's RetailCo., 2018 IL App (5th) 170152, ¶ 50, 107N.E.3d 904. That instruction, also referred toas the "missing witness" or "missingevidence" instruction, specifically states asfollows:

*12 "If a party to this case has failed [tooffer evidence] [to produce a witness]within his power to produce, you mayinfer that the [evidence] [testimony of thewitness] would be adverse to that party ifyou believe each of the followingelements:


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1. The [evidence] [witness] was underthe control of the party and could havebeen produced by the exercise ofreasonable diligence.

2. The [evidence] [witness] was notequally available to an adverse party.

3. A reasonably prudent person underthe same or similar circumstanceswould have [offered the evidence][produced the witness] if he believed [itto be] [the testimony would be]favorable to him.

4. No reasonable excuse for the failurehas been shown." IPI Civil No. 5.01.

¶ 63 At trial, Milano testified that in 2006,he "mix[ed] up" batches of Tremco'sasbestos-containing 440 Tape and caulk(although not Mono caulk) at the request ofTremco's legal counsel and "shipped [theproducts] off to a lab called EPI" for testingto determine whether they released"detectible [sic] asbestos fibers." Althoughthe testing was done "for the purposes oflitigation," it was not done in connectionwith the present case. Ultimately, the 2006EPI test results were not submitted intoevidence in the underlying proceedings, andon appeal, Tremco does not challenge thetrial court's decision to instruct the jurypursuant to IPI Civil No. 5.01.

¶ 64 Plaintiffs assert that "since Tremcoconducted the [EPI testing] to determinefiber release from its tape and caulkproducts in preparation for litigation,Tremco's failure to produce the results attrial allowed the jury to infer the resultsshowed Tremco's products release quantities

of respirable asbestos fiber." Before thejury, plaintiffs framed the inference to bedrawn from the missing evidence in aslightly different way. During their rebuttalclosing argument, they pointed out that Dr.Longo's testing "detected *** no chrysotilefibers" and argued the jury could draw acontrary "inference" based on the missingEPI testing evidence. In other words, thejury could infer that the EPI testing showedthe release of chrysotile fibers fromTremco's products. On appeal, Tremco doesnot dispute the jury could have made thisinference and we will assume arguendo theinference was permissible. Accordingly,given Dr. Frank's testimony, Dr. Longo'sacknowledgment that he could not rule outfiber release, and the allowable adverseinference from the missing EPI testingevidence, we find there was sufficientevidence presented from which the jurycould determine that Tremco's 440 Tape andMono caulk were capable of releasingasbestos fibers.

¶ 65 2. Substantial Causation¶ 66 However, our determination that therecord contains sufficient evidence tosupport a fmding that Tremco's productswere capable of releasing asbestos fibersdoes not end our inquiry. As Tremco asserts,plaintiffs were also required to presentevidence to show that decedent was exposedto asbestos from Tremco's products with "such frequency, regularity and proximity' "that the asbestos from those products couldbe viewed as a substantial factor in causingdecedent's mesothelioma.

¶ 67 As stated, under the substantial factor



2020 IL App (4th) 180434

test, "the defendant's conduct is said to be acause of an event if it was a materialelement and a substantial factor in bringingthe event about." Thacker, 151 III. 2d at354-55. Further, the frequency, regularity,and proximity test has been adopted by thesupreme court "as a means by which anasbestos plaintiff can prove more thanminimum contact [with asbestos fibers] toestablish that a specific defendant's productwas a substantial factor in being a cause infact of a plaintiff's injury." Nolan, 233 Ill.2d at 432 (citing Thacker, 151 Ill. 2d at359).

*13 ¶ 68 In this case, even accepting thatTremco's 440 Tape and Mono caulk werecapable of releasing respirable asbestosfibers, the evidence was otherwise lackingwith respect to the element of substantialfactor causation. In particular, there is noevidence in the record showing when, andunder what circumstances, Tremco'sproducts released respirable asbestos fibers,whether circumstances causing the releaseof respirable asbestos fibers were the typethat would have been regularly encounteredby decedent when using Tremco's products,or whether the release of fibers fromTremco's products was anything more thanminimal.

¶ 69 On appeal, plaintiffs argue the evidencepresented satisfied the frequency, regularity,and proximity test because decedent workedwith Tremco's asbestos-containing products"virtually every working day over hiscareer." We agree that the record showsdecedent worked in close proximity withTremco's products on a regular and frequentbasis. However, it does not necessarilyfollow from such evidence that he also had

frequent, regular, and proximate contactwith respirable asbestos fibers from thoseproducts.

¶ 70 In Thacker, 151 Ill. 2d at 348-49, theplaintiff brought suit against the defendant,alleging her husband developed cancer anddied as a result of his exposure to rawasbestos while working in a plant thatprocessed the defendant's raw asbestos. Inaddressing the use of fiber drift evidence toestablish the proximity requirement of thefrequency, regularity, and proximity test, thesupreme court stated that the plaintiff couldnot "meet her burden of production unlessand until she [was] able to point to sufficientevidence tending to show that [thedefendant's raw] Manville asbestos wasactually inhaled by the decedent."(Emphasis added.) Id. at 364; see alsoWehmeier v. UNR Industries, Inc., 213 Ill.App. 3d 6, 31, 572 N.E.2d 320, 337 (1991)(acknowledging that the amount of evidenceneeded to establish the regularity andfrequency of exposure will differ from caseto case based on factors including "thetendency of *** asbestos products to releaseasbestos fibers into the air"); Junge v.Garlock, Inc., 629 A.2d 1027, 1029 (Pa.Super. Ct. 1993) (holding "that [anasbestos] plaintiff must present evidencethat he inhaled asbestos fibers shed by thespecific manufacturer's product"). TheThacker court further stated as follows:

"We agree *** that even though theplaintiff offered no evidence of where inthe plant Manville asbestos wasprocessed, the fact that Manvilleasbestos, once inside the plant,necessarily contributed to the dust in theplant air was sufficient to meet the


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proximity requirement, particularly inlight of (1) the friable and potent nature ofthe raw asbestos Manville shipped to theplant and (2) testimony, albeit slight,indicating that Manville asbestosnecessarily generated dust which becamepart of dust which circulated throughoutthe facility. In effect the appellate courtheld that, under the facts presented, thedecedent regularly worked in dangerousproximity to dust generated fromManville's asbestos even if it is assumedthat Manville's asbestos was initiallyprocessed in areas of the plant removedfrom where the plaintiff worked and thatthe jury could thereby reasonably infercausation. We agree with thisconclusion." (Emphasis in original andadded.) Thacker, 151 Ill. 2d at 364-65.

¶ 71 Here, there is an absence of evidence inthe record to show under whatcircumstances Tremco's products releasedrespirable asbestos fibers such that theycould be "actually inhaled" by decedent. Idat 364. Dr. Frank's testimony that, in hisexperience, similar products were capable ofgiving off fibers does nothing to explainhow such products must be handled ormanipulated before fibers are released. Inshort, without more, evidence that decedentwas exposed to Tremco's products does notequal evidence that he had frequent, regular,and proximate contact with respirableasbestos fibers from those products. In thiscase, we find it is speculative andconjectural to conclude from the evidencepresented that respirable asbestos fiberswere released from Tremco's products withany frequency or regularity while decedentworked in proximity to those products.

*14 ¶ 72 On appeal, plaintiffs also argue thatthey were not required to quantify thenumber of asbestos fibers to which decedentwas exposed to prove causation. We agree.Nevertheless, relevant asbestos caseauthority dictates that plaintiffs must showmore than a de minimis exposure todefendant's asbestos. See Nolan, 233 Ill. 2dat 432 (stating the "frequency, regularity andproximity" test was a means by which anasbestos plaintiff can prove more than"casual" or "minimum contact" with thedefendant's aslmtos); Lohrmann v.Pittsburgh Corning Corp., 782 F.2d 1156,1162 (4th Cir. 1986) (referring to thefrequency, regularity, and proximity test as"a de minimis rule since a plaintiff mustprove more than a casual or minimumcontact with the [asbestos] product"). In thisinstance, plaintiffs' evidence showed onlythat decedent came into frequent, regular,and proximate contact with Tremco'sproducts and that such products werecapable of releasing asbestos fibers.However, plaintiffs presented no evidenceestablishing that the activities engaged in bydecedent when working as a window glazierwith Tremco's products caused the releaseof respirable asbestos fibers or that theproducts released asbestos fibers in suchamounts that decedent had more than deminimis, casual, or "minimum" contact withasbestos from Tremco's products.

¶ 73 Finally, in addressing the issue ofcausation, the parties disagree as to whetherDr. Frank's causation opinion testimony iscontrary to Illinois law. Tremco argues Dr.Frank's opinions on causation are essentiallybased on an "each and every exposure"theory, wherein any exposure to asbestosfibers is a substantial factor in causing


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asbestos-related disease. To support itsargument, Tremco cites Krik v. Crane Co.,76 F. Supp. 3d 747, 749 (N.D. Ill. 2014), anasbestos personal injury case wherein thedefendants successfully sought to bar theplaintiff from presenting expert testimony,including testimony from Dr. Frank, that"each and every exposure to asbestosproducts results in injury to the person soexposed."

74 In Krik, the plaintiff's experts wereexpected to testify "that any exposure toasbestos, even the very first one, regardlessof dosage is sufficient to cause"asbestos-related disease. Id. at 752. Inparticular, it was expected that Dr. Frankwould testify that (1) " 'any exposure, eventhe first exposure' " would be considered asubstantial contributing factor and (2) "thefirst exposure, no matter how limited, wouldbe a substantial cause." Id. The court statedas follows:

"[The plaintiff] does not offer any experttestimony as to how much asbestosexposure he experienced and whether thatdosage of exposure was sufficient tocause his lung cancer. Rather, he reliesupon the 'Any Exposure' theory andargues that a single exposure to asbestosis enough and every additional exposurecontributed as well. The primary basis forthe 'Any Exposure' theory seems to bethat [the plaintiff's] experts cannot ruleout that a single dose of asbestos causesinjury. From this, they conclude that anyand all exposure to asbestos is necessarilyharmful. [Citation.] This is not anacceptable approach for a causationexpert to take." Id. at 752-53.

See also id. at 753 (citing arguments by theplaintiff's counsel " 'that the cumulativeexposure is the cause. So that's [what] Dr.Frank is saying, each exposure is [a]substantial contribution to the cumulativetotal.' ").

¶ 75 The Krik court noted that Illinoisapplied "the 'substantial contributing factor'test *** to the issue of asbestos injurycausation" (id. at 751), and stated asfollows:

"Indeed, the controlling case from theIllinois Supreme Court, Thacker,explicitly adopted the 'frequency,regularity, and proximity' causation testas the rule of law in Illinois,' from aFourth Circuit case entitled Lohrmann v.Pittsburgh Corning Corp., 782 F.2d 1156(4th Cir. 1986). [Citations.] Lohrmann'sholding, in turn, was based upon what theFourth Circuit termed a 'de minimis' rule,that 'a plaintiff must prove more than acasual or minimum contact with theproduct.' " (Emphasis omitted.) Id. at 753(quoting Lohrmann, 782 F.2d at 1162).

Accordingly, the court found that theplaintiff's argument in the case before it wasunavailing because it was based on thetheory "that a single exposure or a deminimis exposure satisfies the substantialcontributing factor test." Id. The court statedthat "it is not that de minimis exposure issufficient, but that more than de minimisexposure is required to prove causation." Id.

*15 ¶ 76 Plaintiffs respond on appeal byarguing that Dr. Frank's causation opinionin this case was not that "each and everyexposure" to asbestos was a substantial

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factor causing asbestos-related disease.Rather, they contend that Dr. Frank opinedthat a disease like decedent's mesothelioma"is caused by that person's total andcumulative exposure to asbestos" and that"it is scientifically impossible to separate outeach exposure and say exposure Acontributed to the person's total dose butexposure B did not." Further, they rely onRost v. Ford Motor Co., 151 A.3d 1032,1035 (Pa. 2016), a Pennsylvania SupremeCourt case that addressed both the "properapplication of the 'frequency, regularity, andproximity' criteria in asbestos productliability litigation" and expert opiniontestimony on causation from Dr. Frank.

77 In Rost, there had been a pretrial rulingby the trial court that precluded "any expertfrom offering testimony that 'each and everybreath' of asbestos may constitute anevidentiary basis for the jury to find that thedefendant's product was a substantial causeof mesothelioma." Id. at 1037. At trial, Dr.Frank provided testimony that mesotheliomawas a dose-response disease, with smallamounts of asbestos carrying small risks ofdeveloping the disease and larger amountscarrying larger risks. Id. at 1039. He alsotestified that the "causative agent" inmesothelioma was " 'the series ofexposures' " and stated that lain exposuresto asbestos contribute to the cumulativedose of asbestos, and the cumulative dosecauses mesothelioma." Id. Dr. Frank furthertestified regarding the plaintiffs specifichistory in that case, fmding that he had beenexposed to "potentially high amounts [ofasbestos] on a daily basis." Id. at 1040.Based on studies he reviewed, heapproximated the amount of chrysotile

asbestos fibers the plaintiff was exposed to

in his work. Id. at 1039-40.

¶ 78 Additionally, in response to ahypothetical question that detailed theplaintiffs exposure to asbestos, "Dr. Franktestified that it was his opinion * * * that [theplaintiffs] exposure to [the defendant's]products was a 'significant contributingcause to developing mesothelioma.' " Id. at1040. Finally, he opined that if theplaintiffs only exposures to asbestos wasfrom the defendant's products, thoseexposures alone " 'without any of the oneshe had later' " would have been enough tosay that asbestos from the defendant'sproducts was a significant contributingfactor to the plaintiffs mesothelioma. Id.

¶ 79 On review before the PennsylvaniaSupreme Court, the defendant challengedDr. Frank's opinions, arguing they werebased on an "each and every exposure" typeof theory. Id. at 1043. The court stated that"expert testimony based upon the notion thateach and every breath' of asbestos issubstantially causative of mesothelioma willnot suffice to create a jury question on theissue of substantial factor causation." Id. at1044. Instead, "to create a jury question, aplaintiff must adduce evidence that exposureto [the] defendant's asbestos-containingproduct was sufficiently 'frequent, regular,and proximate' to support a jury's findingthat [the] defendant's product wassubstantially causative of the disease." Id.Ultimately, it rejected the defendant'schallenge to Dr. Frank's testimony, statingas follows:

"We must agree with the [plaintiffs] that[the defendant] has confused or conflatedthe 'irrefutable scientific fact' that every



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exposure cumulatively contributes to the

total dose (which in turn increases the

likelihood of disease), with the legal

question under Pennsylvania law as to

whether particular exposures to asbestos

are 'substantial factors' in causing the

disease. It was certainly not this Court's

intention, [in prior decisions], to preclude

expert witnesses from informing juries

about certain fundamental scientific facts

necessary to a clear understanding of the

causation process for mesothelioma, even

if those facts do not themselves establish

legal (substantial factor) causation. In this

case, while Dr. Frank clearly testified that

every exposure to asbestos cumulatively

contributed to [the plaintiff's]

development of mesothelioma, he never

testified that every exposure to asbestoswas a 'substantial factor' in contracting

the disease.

*16 Instead, by way of, inter alia, the

lengthy hypothetical that detailed the

entirety of [the plaintiff s] exposure to[the defendant's] asbestos-containing ***products ***, Dr. Frank testified that [theplaintiffs] actual exposures to asbestos*** [from the defendant's products] was

substantially causative of his

mesothelioma." Id. at 1045-46.

The court further noted that Dr. Frank

provided testimony that was specific to the

plaintiffs history of exposure to asbestos

from the defendant's products, as well as his

history of exposure from other sources, andthat he "testified that the totality of [theplaintiffs] exposure to asbestos [from the

defendant's products], standing alone, was

sufficient to have caused [the plaintiff s]

mesothelioma, even if there had been no

other exposures." Id. at 1046.

80 In this case, Dr. Frank provided similar

testimony to the testimony he provided in

Rost regarding the "fundamental scientific

facts necessary to a clear understanding of

the causation process for mesothelioma." Id.

at 1045. He asserted that all asbestos fiber

types cause mesothelioma, that there was a

"dose-response" relationship between

exposure and development of the disease,

and that "cumulative exposure, the totality

of the exposure" is what "causes the

disease." Id. at 1039. Further, unlike in Krik,

he did not offer the opinion that every

exposure to asbestos was a substantial

causative factor in the person's development

of disease. When considering Dr. Frank's

testimony in total, it is clear that his opinion

was that each exposure to asbestoscontributed to a person's cumulativeexposure and that it was the cumulative

exposure that caused disease. Accordingly,

we do not fmd that Dr. Frank's testimony

was contrary to Illinois law and substantialfactor causation as argued by Tremco.

¶ 81 However, as noted in Rost, althoughtestimony regarding "certain fundamentalscientific facts" may be "necessary to a clearunderstanding of the causation process formesothelioma," those same facts do notthemselves necessarily establish substantial

factor causation. Id. at 1045. Unlike his

opinions in Rost, Dr. Frank's opinions inthis case fell short of demonstrating thatdecedent's exposure to asbestos fromTremco's products was a substantial factorin causing his mesothelioma. Specifically,Dr. Frank offered almost no testimony or

opinions regarding decedent's exposure to

asbestos fibers from Tremco's products,

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testifying only that in his experience similarproducts "can" release fibers under someunknown set of circumstances and in someunknown quantity or concentration.Additionally, when presented with ahypothetical question regarding decedent'swork as a glazier with asbestos-containingproducts, Dr. Frank opined only "[t]hat[decedent's] exposures to asbestos wouldhave caused him to develop themesothelioma that he had that caused hisdeath." Noticeably absent from histestimony was any opinion that exposure toasbestos from Tremco's products was a"substantial" factor in decedent'sdevelopment of his disease, particularlywhen compared to his exposure to asbestosfrom other sources.

¶ 82 Here, although we find that Dr. Frank's"cumulative exposure" testimony was notthe equivalent of the "each and everyexposure" theory, we also find that hisopinions failed to aid plaintiffs in meetingthe substantial factor test under Illinois law.Accordingly, due to the lack of evidenceshowing that decedent's exposure torespirable asbestos fibers from Tremco'sproducts on a frequent, regular, andproximate basis was a cause in fact inbringing about decedent's mesothelioma,Tremco is entitled to a judgment n.o.v.

¶ 83 3. Packaging Contamination*17 ¶ 84 We note that, on appeal, plaintiffsadditionally argue that the jury could havereasonably inferred that decedent wasexposed to raw asbestos fibers from theboxes in which Tremco's 440 Tape andMono caulk were packaged at its

manufacturing facilities. To support thiscontention, plaintiffs rely on testimony fromDr. Longo regarding packagingcontamination and evidence that Tremco'sKinsman facility was found to have "highlevels" of asbestos fibers in its "dustcounts." We disagree with plaintiffs'arguments on this point.

¶ 85 The record reflects that Tremco'sKinsman facility manufactured roofingmaterials and not the products at issue in thiscase. Thus, high levels of asbestos fibers inair samples from that facility is not evidencethat the packaging for Tremco's 440 Tapeand Mono caulk was contaminated duringthe manufacturing process at differentfacilities. Additionally, Dr. Longo'stestimony does not support plaintiffs' theoryof contamination. Dr. Longo stated he hadno knowledge of "housekeeping" within theTremco facilities that manufactured theproducts at issue, how raw asbestos wasstored by Tremco, or air samples fromTremco's manufacturing facilities. Dr.Longo further testified that he had not testedfor contamination and stated as follows: "butbased on the product itself and how it'smade, it's not clear to me how[contamination] would really happen to anydegree." Given the evidence presented,plaintiffs' assertion that decedent wasexposed to raw asbestos fibers fromTremco's manufacturing and packagingprocess is speculative and unsubstantiated.

¶ 86 B. Remaining Issues¶ 87 On appeal, Tremco raises several otherissues for review. However, given ourfmding that Tremco is entitled to a judgment

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2020 IL App (4th) 180434

n.o.v. based on the lack of evidence of Presiding Justice Steigmann and Justicesubstantial causation, we find it unnecessary Turner concurred in the judgment andto address those remaining issues. opinion.

1188 III. CONCLUSION¶ 89 For the reasons stated, we reverse thetrial court's judgment.

1190 Reversed.

All Citations

N.E.3d ----, 2020 IL App (4th) 180434,2020 WL 290648

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WESTLAW © 2020 Thomson Reuters. No claim to original U.S ... · 1/22/2020 · Attorneys and Law Firms Attorneys for Appellant: Brad A. Elward, Christopher P. Larson, and Cathy A