Berry v. American Standard, Inc.

Opinion

NO. 5-06-0621 N O T IC E

Decision filed 05/19/08. The text of IN THE this dec ision m ay b e changed or

corrected prior to the filing of a APPELLATE COURT OF ILLINOIS P e t i ti o n for Re hea ring or the

disposition of the same. FIFTH DISTRICT ___________________________________________________________________________

LINNIE KATHRYN BERRY, on Her ) Appeal from the Own Behalf and as Personal Representative ) Circuit Court of of the Estate of Howard L. Berry, Deceased, ) Crawford County. ) Plaintiff-Appellant, ) ) v. ) No. 04-L-1 ) AMERICAN STANDARD, INC., ) AMERICAN WATER WORKS SERVICE ) COMPANY, INC., ARKLA INDUSTRIES, ) INC., GARLOCK SEALING ) TECHNOLOGIES, LLC, G.W. ) BERKHEIMER COMPANY, INC., ) INDUSTRIAL CONTRACTORS, INC., JOHN ) CRANE, INC., LENNOX INDUSTRIES, ) INC., MARATHON OIL COMPANY, ) SEALING EQUIPMENT PRODUCTS ) COMPANY, UNION CARBIDE ) CORPORATION, and THE WHIRLPOOL ) CORPORATION, ) Honorable Kimbara G. Harrell and ) Honorable Stephen G. Sawyer, Defendants-Appellees. ) Judges, presiding. __________________________________________________________________________

JUSTICE WELCH delivered the opinion of the court:

On January 2, 2004, Howard and Linnie Kathryn Berry filed in the circuit court of

Crawford County a complaint against 47 defendants, seeking damages resulting from

Howard Berry's exposure to asbestos on various job sites. Howard Berry had been diagnosed

with terminal mesothelioma on September 23, 2003, with a life expectancy of between 8 and

18 months.

On January 21, 2004, the plaintiffs' counsel served upon the defendants a notice that

Howard's evidence deposition would be taken on February 25, 2004. The defendants

1 objected and requested that a discovery deposition take place first. Accordingly, Howard's

discovery deposition was scheduled for March 16, 2004. Due to Howard's long employment

history and the number of defendants seeking to question him, the discovery deposition was

extended by agreement to March 22, 2004. Again, questioning could not be completed, and

the parties could not agree to another extension. Accordingly, in May 2004, the defendants

filed motions with the court to extend the discovery deposition. These motions were heard

on May 12, 2004, and the court granted the defendants 4 additional days within the following

30 days in which to take Howard's discovery deposition. Howard's evidence deposition was

to be taken within seven days of the receipt of expedited transcripts of the completed

discovery deposition.

On May 21, 2004, the plaintiffs filed a motion for a protective order and/or an order

limiting the time allotted for the continuation of Howard's discovery deposition. Attached

to the motion was the affidavit of Howard's physician stating that Howard could endure no

more than three hours a day of testimony for a total of no more than seven hours, which

would include the evidence deposition. The evidence deposition was expected to take no

more than 3½ hours. The motion came on for a hearing on May 28, 2004. The motion was

denied and the previous order allowing additional time for the discovery deposition stood.

We note that at this hearing, the plaintiff asked if the videotaped discovery deposition might

be used as an evidence deposition in the event Howard Berry did not survive long enough

to complete an evidence deposition. The defendants objected to that use of the discovery

deposition, and the circuit court ruled that it would not allow the discovery deposition to be

used as an evidence deposition.

Howard appeared for further discovery deposition on June 9 and 10, 2004. While all

of the attorneys present completed their questioning of Howard, some attorneys who had

chosen to participate via telephone conference were unable to question Howard due to

2 problems with the conference call. Howard's evidence deposition had been scheduled for

July 6, 2004. Because some of the defendants had not completed the discovery deposition

on June 10, they filed motions to quash the evidence deposition and continue the discovery

deposition for the additional time already allowed by the court. These motions were heard

on July 16, 2004, and the circuit court allowed additional time for the discovery deposition.

The discovery deposition resumed and was completed on July 28, 2004. Shortly

thereafter, Howard Berry was hospitalized and he died on August 23, 2004. His evidence

deposition was never taken. On October 6, 2004, Howard’s wife, Linnie Kathryn Berry, was

substituted as the personal representative of the estate of Howard Berry, deceased.

Anticipating that the plaintiff might seek to use Howard's videotaped discovery

deposition as evidence, the defendants filed motions to bar the use of the discovery

deposition on the ground that Supreme Court Rule 212(a)(5) bars that use where the

deponent is a party to the action. 210 Ill. 2d R. 212(a)(5). Subsequently, the plaintiff moved

to use the discovery deposition as evidence at the trial, and she responded to the defendants'

motions to bar its use. The matter was heard before the court on M ay 18, 2005, and the court

found that Supreme Court Rule 212(a)(5) bars the use of a party's discovery deposition as

evidence at a trial and that a deceased plaintiff/deponent remains a party through his estate

for purposes of this rule. In an order entered June 1, 2005, the court ruled that Howard

Berry's deposition had been taken for the purpose of discovery and that pursuant to Supreme

Court Rule 212(a)(5), if a deponent or the estate of a deceased deponent is a party to the

proceeding, the discovery deposition of that deponent cannot be used as an evidence

deposition. The circuit court barred the plaintiff from using Howard Berry's discovery

deposition as an evidence deposition at the trial.

Thereafter, the defendants filed motions for a summary judgment in their favor on the

basis that without Howard Berry's testimony, the plaintiff would be unable to prove her case.

3 These motions were granted by the circuit court. The plaintiff now appeals the circuit court's

ruling barring the use of Howard Berry's discovery deposition as evidence at a trial.

To the extent the resolution of the issues presented depends on our construction of

Supreme Court Rule 212, we apply a de novo standard of review. In re Estate of Rennick,

181 Ill. 2d 395, 401 (1998). When interpreting a supreme court rule, courts apply the same

principles of construction that apply to a statute. In re Estate of Rennick, 181 Ill. 2d at 404.

Thus, the goal of this court in interpreting a supreme court rule is to ascertain and give effect

to the intent of the drafters of the rule. In re Estate of Rennick, 181 Ill. 2d at 404. The most

reliable indicator of intent is the language used, which should be given its plain and ordinary

meaning. In re Estate of Rennick, 181 Ill. 2d at 405. Where language is clear and

unambiguous, this court must apply the language used without further aids to construction.

In re Estate of Rennick, 181 Ill. 2d at 405.

Illinois has long recognized a sharp distinction between depositions taken for the

purpose of discovery and those taken for use as evidence at a trial. The purpose of a

discovery deposition is to explore the facts of the case, and for this reason wide latitude is

given in the scope and manner of questioning. In re Estate of Rennick, 181 Ill. 2d 395, 401

(1998). Discovery depositions are used to obtain information, to commit witnesses to

particular stories, and to obtain admissions from opposing parties. Slatten v. City of Chicago,

12 Ill. App. 3d 808, 813 (1973). Their admissibility in evidence is limited. Slatten, 12 Ill.

App. 3d at 813. " 'Knowing in advance that a deposition is for discovery only and hence of

limited availability, counsel ordinarily do not urge technical objections, and the taking of the

deposition proceeds informally and expeditiously.' " Slatten, 12 Ill. App. 3d at 813 (quoting

Cleary's Handbook of Illinois Evidence §1.5, at 8 (2d ed. 1963)). Discovery depositions are

not permitted to be used at a trial even if the deponent is unavailable, because that use would

inhibit free discovery by requiring time-consuming evidentiary objections at every discovery

4 deposition. See In re Estate of Rennick, 181 Ill. 2d at 403. In contrast, an evidence

deposition is generally used for the purpose of preserving testimony for trial, and questioning

is therefore limited by the rules of evidence. In re Estate of Rennick, 181 Ill. 2d at 401.

Only rarely may any portion of a discovery deposition be used at a trial. Those

instances are set forth in Supreme Court Rule 212(a), which governs the use of discovery

depositions:

"(a) *** Discovery depositions taken under the provisions of this rule may be

used only:

(1) for the purpose of impeaching the testimony of the deponent as a

witness ***;

(2) as an admission made by a party or by an officer or agent of a party

***;

(3) if otherwise admissible as an exception to the hearsay rule;

(4) for any purpose for which an affidavit may be used; or

(5) upon reasonable notice to all parties, as evidence at trial or hearing

against a party who appeared at the deposition or was given proper notice

thereof, if the court finds that the deponent is neither a controlled expert

witness nor a party, the deponent's evidence deposition has not been taken, and

the deponent is unable to attend or testify because of death or infirmity, and if

the court, based on its sound discretion, further finds such evidence at trial or

hearing will do substantial justice between or among the parties." (Emphasis

added.) 210 Ill. 2d R. 212(a).

The circuit court in the case at bar found that Howard Berry's discovery deposition was not

admissible as evidence under section 212(a)(5) because Howard Berry and his estate as

represented by Linnie Kathryn Berry were parties to the action.

5 The plaintiff argues that the circuit court erred in determining that, despite his death,

the deponent Howard Berry was still a party to the proceeding through the personal

representative of his estate. The plaintiff argues that Howard Berry was no longer a party to

the litigation after his death and that therefore the proscription of Rule 212(a)(5) against the

evidentiary use of a party's discovery deposition does not apply. Relying on Powers v.

Kelley, 83 Ill. App. 2d 289 (1967), the plaintiff argues that the status of a deponent is to be

determined as of the time of the trial and not at the time the deposition was taken. We find

Powers to be inapposite to the case at bar, in that the status to which it refers is the

availability of the deponent to testify at a trial, not his status as a party, and it involves an

evidence deposition, not a discovery deposition. In any event, the plaintiff cites no case in

support of her argument that Howard Berry is no longer a party to the litigation through the

personal representative of his estate. Howard was clearly a party at the time his discovery

deposition was taken.

While no case directly addresses the precise question presented here, we hold that the

circuit court did not err in determining that Howard Berry, the deponent, remains a party to

this litigation, through the personal representative of his estate, for purposes of Supreme

Court Rule 212, and that a discovery deposition may not be used in place of live testimony

upon the death of a party/deponent.

We note initially that Supreme Court Rule 212(d) explicitly provides that a

substitution of parties does not affect the right to use depositions previously taken. 210 Ill.

2d R. 212(d). From this we conclude that where the discovery deposition could not have

been used as evidence prior to a substitution of parties, it cannot be so used after a

substitution of parties. That is the case here.

Furthermore, in In re Estate of Rennick, 181 Ill. 2d 395 (1998), the Illinois Supreme

Court held that a deceased party/deponent remains a party to the action through the

6 substituted personal representative of his estate for purposes of Supreme Court Rule

212(a)(2), which allows the use of a discovery deposition at a trial "as an admission made

by a party" (134 Ill. 2d R. 212(a)(2)). The supreme court ruled that admissions of the

deceased party/deponent could be used as evidence at a trial against that deponent's

substituted estate. By doing so, the supreme court implicitly held that a deceased

party/deponent remains a party to the action even after his death, through the personal

representative of his estate.

We see no reason the same rule should not apply with equal force to Supreme Court

Rule 212(a)(5), which bars the use of a party's discovery deposition as evidence at a trial.

A deceased party/deponent remains a party to the action through the substituted personal

representative of his estate so that Rule 212(a)(5) bars the use of a discovery deposition of

the deceased party/deponent as evidence at a trial. We recently so held in Longstreet v.

Cottrell, Inc., 374 Ill. App. 3d 549, 553 (2007), where we held that Rule 212(a)(5) "very

clearly, and without qualification, excludes the use of a deceased party's discovery

deposition."

Our construction of Rule 212(a)(5) is consistent with the distinction between

discovery and evidence depositions underlying Rule 212 and the almost complete prohibition

against the use of a party's discovery deposition as evidence at a trial. To allow the

evidentiary use of a party's discovery deposition upon that party's death would effectively

abrogate the provisions of Rule 212(a)(5), which bars the use of a party's discovery

deposition at a trial. A different construction would turn every discovery deposition of a

party into an evidence deposition because the parties would know that, in the event of the

party/deponent's death, the deposition might be admissible as evidence at the trial. That

result would be contrary to the intent of the drafters of the rule, which was to maintain a

sharp distinction between discovery and evidence depositions. Accordingly, we find that the

7 circuit court did not err in holding that Howard Berry remained a party to the action through

the personal representative of his estate for purposes of Supreme Court Rule 212(a)(5) and

that under Rule 212(a)(5) the discovery deposition of Howard Berry may not be used as

evidence at a trial.

The plaintiff also argues on appeal that the prejudice to the plaintiff in not admitting

Howard's deposition testimony outweighs any prejudice to the defendants in allowing its use

and that therefore the circuit court erred in barring the use of the discovery deposition as

evidence. We note, however, that Supreme Court Rule 212(a)(5) vests no discretion in the

circuit court to allow the use of a discovery deposition as evidence where the deponent was

a controlled expert witness or a party to the action. If the deponent is not a party or

controlled expert witness, then the circuit court may, upon proper notice and in its discretion,

allow the use of a discovery deposition as evidence if the deponent cannot testify because of

death or infirmity and if the court determines that its use will do substantial justice between

or among the parties.

Strict compliance with supreme court rules is generally required. Village of Lake Villa

v. Stokovich, 211 Ill. 2d 106, 116 (2004). The rules are not mere suggestions but have the

force of law, and the presumption is that they will be obeyed and enforced as written. Bright

v. Dicke, 166 Ill. 2d 204, 210 (1995). The plain and ordinary language of Supreme Court

Rule 212(a)(5) gives no discretion to the circuit court to allow the evidentiary use of the

discovery deposition of a party. Because the circuit court correctly concluded that Howard

Berry remained a party to the action, it did not err in failing to exercise discretion it did not

have to allow the use of Howard Berry's discovery deposition as evidence at a trial.

Nevertheless, the plaintiff points to two Illinois cases in which discovery depositions

of a party were allowed into evidence at the trial. In re Estate of Ragen, 96 Ill. App. 3d 1035

(1981), was an action for the admission into probate of a will codicil. The circuit court

8 allowed into evidence the discovery deposition of Virginia Ragen, a coexecutor of the estate

and a party to the litigation. Her deposition had been taken in Florida after the court was

advised that her health prevented her from traveling to Illinois for the trial. The appellant

complained that he had not received proper notice that the deposition would be used for

evidence, in that it had been noticed as a discovery deposition. The appellate court held that

the parties and the court were aware that the deponent would not be traveling to Illinois for

the trial, and the trial judge had informed the parties prior to the taking of the deposition that

he would consider the possibility of its use at the trial. In re Estate of Ragen, 96 Ill. App. 3d

at 1046. At the beginning of the deposition, the respondents' counsel stated that it was

intended to be evidentiary. The court found that the appellant had actual notice that the

deposition could be admitted as evidence at the trial and that its use as evidence did not

prejudice the appellant. In re Estate of Ragen, 96 Ill. App. 3d at 1046. Accordingly, the

appellate court held that the circuit court had not circumvented the supreme court rules on

discovery. In re Estate of Ragen, 96 Ill. App. 3d at 1046.

In Flack v. McClure, 206 Ill. App. 3d 976, 981 (1990), an action for specific

performance on a house sale, the defendant died just four days before the trial was to begin.

His codefendant and wife was appointed the special administrator of his estate for the

purpose of the trial. The appellant objected to use of the decedent's deposition as evidence

at the trial, claiming she had not received notice prior to it having been taken that it would

be so used. The notice of the deposition had indicated that it would be used for both

discovery and evidence, and this dual purpose was stated at the beginning of the deposition.

The trial court found that proper notice of the dual purpose had been given and that the

appellant had not objected. The appellant had known of the dual purpose and proceeded on

the deposition accordingly. The court found that the supreme court rules on discovery had

been complied with. The appellate court affirmed.

9 The plaintiff now argues on appeal that, just as in In re Estate of Ragen and Flack, the

defendants in the case at bar were on actual notice that Howard's discovery deposition could

be used as evidence at a trial in the event of Howard's death. She argues that the defendants

were all aware of Howard's medical condition, that his expected life span was short, and that

he might not survive until a trial. Nevertheless, she argues, the defendants dragged on

Howard's discovery deposition, taxing his strength and making it impossible for him to give

an evidence deposition. She also argues that the defendants were in control of the discovery

deposition and asked only the questions they wanted to ask. Accordingly, she contends, any

prejudice to the defendants from using Howard's discovery deposition as evidence is

minimized.

Contrary to the plaintiff's argument, the record on appeal demonstrates that the

defendants were not on notice that Howard's discovery deposition might be used as evidence

at a trial. Throughout the proceedings below, the plaintiff always insisted that an evidence

deposition would be taken at the conclusion of the discovery deposition. On the sole

occasion when the plaintiff mentioned the possibility of using the discovery deposition as

evidence, the defendants objected and the circuit court indicated that it would not allow that

use of the discovery deposition. Accordingly, unlike In re Estate of Ragen and Flack,

Howard's discovery deposition was never intended or understood to be a dual-purpose or

evidence deposition. The deposition was understood and intended to be for discovery only,

and all the parties proceeded with that understanding. The plaintiff cannot now claim that

it was intended for a dual purpose or for evidence.

Finally, the plaintiff argues that Howard's discovery deposition should be allowed into

evidence under Supreme Court Rule 212(a)(3) (210 Ill. 2d R. 212(a)(3)) as an exception to

the hearsay rule, because it was a "dying declaration." This argument was presented to the

circuit court in a motion to reconsider the court's previous order barring the use of the

10 discovery deposition. The circuit court denied the motion to reconsider. The circuit court's

determination of whether a particular statement constitutes a dying declaration will not be

reversed on appeal unless its findings are palpably contrary to the manifest weight of the

evidence. People v. Webb, 125 Ill. App. 3d 924, 934 (1984).

We affirm the circuit court's determination that Howard Berry's discovery deposition

is not admissible as an exception to the hearsay rule for dying declarations. Even if we were

to find that the dying-declaration exception to the hearsay rule would allow a party's

discovery deposition to be used as evidence at a trial, Howard Berry's discovery deposition

does not qualify as a dying declaration for two reasons: the exception has never been

recognized in a civil case, and Howard Berry was not, at the time his deposition was given,

under the belief that his death was "imminent."

A dying declaration is a statement of fact made by a victim relating to the cause and

circumstances of a homicide. People v. Georgakapoulos, 303 Ill. App. 3d 1001, 1008

(1999). A dying declaration is admissible as an exception to the hearsay rule because it

possesses a guarantee of trustworthiness in the assumption that the belief of impending death

excludes the possibility of fabrication by the declarant. Georgakapoulos, 303 Ill. App. 3d

at 1008. The requirements for admitting a dying declaration into evidence are as follows: (1)

the declaration pertains to the cause or circumstances of the homicide, (2) the declarant must

believe that death is imminent, and (3) the declarant must possess mental faculties sufficient

to give an accurate statement about the circumstances of the homicide. Georgakapoulos, 303

Ill. App. 3d at 1009.

In Illinois, the exception has never been applied in a civil case. In Marshall v.

Chicago & Great Eastern Ry. Co., 48 Ill. 475, 480 (1868), the supreme court stated, "[I]n no

case, save that of a public prosecution for a felonious homicide, can dying declarations of the

party killed be received in evidence," and "In civil cases they are not admissible." No

11 reported Illinois case has applied the exception in a civil case, and we will not be the first to

do so here.

In any event, the plaintiff has failed to show that Howard Berry believed his death was

"imminent" at the time he gave his discovery deposition. Belief in the imminence of death

may be shown by the declarant's own statements or from circumstantial evidence, such as the

nature of the wounds or statements made in his presence. Georgakapoulos, 303 Ill. App. 3d

at 1009. The party seeking to admit a dying declaration into evidence must show that, at the

time it was made, the declarant possessed " 'the fixed belief and moral conviction that death

is impending and certain to follow almost immediately, without opportunity for repentance

and in the absence of all hope of avoidance, when he has despaired of life and looks to death

as inevitable and at hand.' " People v. Webb, 125 Ill. App. 3d 924, 934 (1984) (quoting

People v. Tilley, 406 Ill. 398, 403 (1950)).

"The principle upon which dying declarations are admitted is[] that they are made in

a condition so solemn and awful as to preclude the supposition that the party could

have been influenced by malice, revenge[,] or any conceivable motive to misrepresent

and when every inducement was to speak the truth. It is not enough that he shall have

thought he would never recover, but the declaration must be made under the belief of

almost immediate dissolution." People v. Cassesse, 251 Ill. 422, 425-26 (1911).

While at the time Howard Berry gave his discovery deposition he knew that he had

been diagnosed with a terminal illness, he did not believe that his death was "imminent" in

the sense that it was "impending and certain to follow almost immediately." While Howard

knew that his death was inevitable, as do we all, he did not know that it was "at hand." The

assumptions regarding veracity that support the dying-declaration exception to the hearsay

rule simply do not apply to Howard's discovery deposition. The circuit court's refusal to

recognize Howard's deposition as a dying declaration admissible as evidence under Supreme

12 Court Rule 212(a)(3) as an exception to the hearsay rule was not contrary to the manifest

weight of the evidence.

Finally, the plaintiff argues that if we reverse the circuit court's order barring the

evidentiary use of Howard's discovery deposition, we must also reverse the summary

judgments entered in favor of the defendants. In light of our affirmance of the circuit court's

order barring the evidentiary use of Howard's discovery deposition, we need not address this

issue.

One of the defendants, Industrial Contractors, Inc., has challenged our jurisdiction to

hear this appeal with respect to it, arguing that the plaintiff's notice of appeal was untimely

with respect to the summary judgment entered in its favor. A summary judgment in favor

of Industrial Contractors, Inc., was entered on April 19, 2006. This defendant sought a

finding under Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)) that there was no just reason

for delaying the enforcement or appeal of the judgment, but the judgment recited only that

there was "no just reason for delay." In a previous order entered August 28, 2006, this court

found that this language was insufficient to confer appellate jurisdiction under Supreme

Court Rule 304(a). Accordingly, we held that any appeal from the summary judgment was

premature.

Nevertheless, this defendant argues that the plaintiff's notice of appeal was untimely

because it was not filed within 30 days of the entry of the summary judgment in its favor.

Without a Rule 304(a) finding, a final order disposing of fewer than all the claims is not an

appealable order and does not become appealable until all of the claims are resolved. Marsh

v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 464 (1990). Because the

plaintiff's notice of appeal was filed within 30 days of the final order resolving all the claims

of all the defendants, this appeal is timely.

For the foregoing reasons, the order of the circuit court of Crawford County barring

13 the evidentiary use of Howard Berry's discovery deposition is affirmed, and the summary

judgments entered in favor of the defendants are also affirmed.

Affirmed.

JUSTICE CHAPM AN, specially concurring:

I write separately to say that while I believe that the result is correct under the law, I

also believe that the justice system failed. Mr. Berry had a very limited life expectancy as

a result of his mesothelioma–a fact testified to by his physician and known by all, due to the

very nature of this disease. This case required an expedited and equitably enforced discovery

schedule or a dual-purpose deposition as provided by Supreme Court Rule 202 (166 Ill. 2d

R. 202) so that the plaintiff's testimony could have been preserved. That did not occur. The

plaintiff first noticed his evidence deposition on February 25, 2004. At the time of his death,

six months later, his evidence deposition had still not taken place. Through a series of

motion-related delays and rulings of the trial court, Mr. Berry was denied his "day in court."

I find that regrettable.

JUSTICE WEXSTTEN joins in this special concurrence.

14 NO. 5-06-0621

IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________________

LINNIE KATHRYN BERRY, on Her ) Appeal from the Own Behalf and as Personal Representative ) Circuit Court of of the Estate of Howard L. Berry, Deceased, ) Crawford County. ) Plaintiff-Appellant, ) ) v. ) No. 04-L-1 ) AMERICAN STANDARD, INC., ) AMERICAN WATER WORKS SERVICE ) COMPANY, INC., ARKLA INDUSTRIES, ) INC., GARLOCK SEALING ) TECHNOLOGIES, LLC, G.W. ) BERKHEIMER COMPANY, INC., ) INDUSTRIAL CONTRACTORS, INC., JOHN ) CRANE, INC., LENNOX INDUSTRIES, ) INC., MARATHON OIL COMPANY, ) SEALING EQUIPMENT PRODUCTS ) COMPANY, UNION CARBIDE ) CORPORATION, and THE WHIRLPOOL ) CORPORATION, ) Honorable Kimbara G. Harrell and ) Honorable Stephen G. Sawyer, Defendants-Appellees. ) Judges, presiding. ___________________________________________________________________________________

Opinion Filed: May 19, 2008 ___________________________________________________________________________________

Justices: Honorable Thomas M. Welch, J.

Honorable Melissa A. Chapman, J., and Honorable James M. Wexstten, J., Specially Concurring ___________________________________________________________________________________

Attorneys W. Russell Sipes, Todd Barnes, Linda George, Kathleen A. Musgrave, James S. for Bolen, Vincent Green, George & Sipes, 151 N. Delaware, Suite 1700, Appellant Indianapolis, IN 46204 (attorneys pro hac vice)

Paul E. Wieck, Bennett, Schroeder & Wieck, 517 Locust Street, P.O. Box 98, Marshall, IL 62441-0098 ___________________________________________________________________________________ Attorneys Carolyn M. Husmann, Brenda G. Baum, Anne B. Schmidt, Eric D. Rosser, James R. for Grabowski, Sean Sheehan, Hepler, Broom, MacDonald, Hebrank, True & Noce, LLC, Appellees 103 W. Vandalia Street, Suite 300, P.O. Box 510, Edwardsville, IL 62025-0510; Peter J. Sacopulos, Michael J. Sacopulos, Gus Sacopulos (admitted pro hac vice), Sacopulos, Johnson & Sacopulos, 676 Ohio Street, Terre Haute, IN 47807 (attorneys for Marathon Oil Co.)

Douglas B. King (admitted pro hac vice), Dayna L. Switzer, Jamie Young, Wooden & McLaughlin, LLP, 211 North Pennsylvania Street, One Indiana Square, Suite 1800, Indianapolis, IN 46204-4208 (attorneys for Industrial Contractors, Inc.)

C. Raymond Bell, Daniel G. Donahue, Carla C. Storm, Foley & Mansfield, PLLP, 1001 Highlands Plaza Drive W., Suite 400, St. Louis, MO 63110; Susan E. Mehringer, Lewis & W agner, LLP, 501 Indiana Ave., Suite 200, Indianapolis, IN 46204; Gregory C. Ray, Craig & Craig, 1807 Broadway Ave., P.O. Box 689, Mattoon, IL 61938-0689 (attorneys for The Whirlpool Corporation)

Craig L. Unrath, Heyl, Royster, Voelker & Allen, Bank One Building, Suite 600, 124 S. W. Adams Street, Peoria, IL 61602; Robert H. Shultz, Kent L. Plotner, Peter Maginot, Robert Marcus, Douglas Heise, Philip M. Eisele, Timothy Graham, Heyl, Royster, Voelker & Allen, Mark Twain Plaza II, Suite 100, 103 W . Vandalia Street, P.O. Box 467, Edwardsville, IL 62025-0467 (attorneys for Lennox Industries, Inc., and Union Carbide Corp. - NO BRIEFS FILED)

Dennis F. Cantrell, Katherine L. Shelby, Denise Wade Chavis, Karl L. Mulvaney, Jessica K.T. Ohlson, Daniel Gerritzen, Bingham McHale LLP, 2700 Market Tower, 10 West Market Street, Indianapolis, IN 46204-4900 (attorneys admitted pro hac vice for G.W. Berkheimer Co., Inc. - NO BRIEF FILED)

Paul W. Doerscheln, Jeffrey Rogers, Undray Wilks, McGuire Woods, LLP, 77 W. Wacker Drive, Suite 4100, Chicago, IL 60601-1815; Lonnie Johnson, M allor, Clendening, Grodner & Bohrer, 511 Woodscrest Drive, Bloomington, IN 47407 (attorneys for American Standard, Inc. - NO BRIEF FILED)

Matthew J. Fischer, Schiff, Hardin, LLP, 6600 Sears Tower, 233 South Wacker Drive, Chicago, IL 60606 (attorney for Arkla Industries, Inc. - NO BRIEF FILED)

Michael A. Pollard, Baker & McKenzie, LLP, 130 East Randolph Drive, Suite 3500, Chicago, IL 60601; Daniel O'Connell, Jackie Miller, Edward M. Burns, Sean Fergus, O'Connell & Associates, 645 Tollgate Road, Suite 220, Elgin, IL 60123 (attorneys for John Crane, Inc. and Sealing Equipment Products Company - NO BRIEFS FILED)

William Mahoney, Paul E. Wojcicki, Jason L. Kennedy, Jonathan Lively, Edward McCambridge, James Williams, Keith Hays, Allison Scott, Segal, McCambridge, Singer & Mahoney, Ltd., One IBM Plaza, 330 North Wabash Avenue, Suite 200, Chicago, IL 60611 (attorneys for American Water Works Service Company, Inc. and Garlock Sealing Technologies, LLC) ___________________________________________________________________________________