Healy v. Owens-Illinois, Inc.

833 N.E.2d 906, 359 Ill. App. 3d 186, 295 Ill. Dec. 700
CourtAppellate Court of Illinois
DecidedJuly 15, 2005
Docket1-03-3054
StatusPublished
Cited by13 cases

This text of 833 N.E.2d 906 (Healy v. Owens-Illinois, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Healy v. Owens-Illinois, Inc., 833 N.E.2d 906, 359 Ill. App. 3d 186, 295 Ill. Dec. 700 (Ill. Ct. App. 2005).

Opinion

JUSTICE GALLAGHER

delivered the opinion of the court:

This appeal arises from the circuit court’s entry of summary judgment in favor of defendant corporations Owens-Illinois, Inc., Commonwealth Edison Company, Union Carbide Corporation and Union Carbide Polyolefins Development Company, Inc. (hereinafter referred to as defendants), on plaintiffs complaint alleging that Francis Healy’s personal injuries arose from asbestosis caused by exposure to asbestos fibers. The circuit court held that plaintiffs lawsuit was barred by the two-year statute of limitations for personal injury claims (735 ILCS 5/13—202 (West 2000)) because, as a matter of law, Healy was on notice of his injury in January 1999, more than two years before he filed his claim. Because we find that the record does not reveal a genuine issue of material fact as to whether Healy knew or reasonably should have known of his asbestos-related injury more than two years before his complaint was filed, we affirm the circuit court’s grant of summary judgment to defendants.

The following undisputed facts are taken from the pleadings, interrogatories and deposition testimony in the record. Healy was born in 1935. Healy’s father and his brother, John, were asbestos workers. Healy stated that when he was a child, it was customary for people to bathe only once a week and for family members to share the same bed. Healy said his family followed those routines, sharing a bed with his father or brother. Healy said his father regularly came home from his asbestos job with dust-covered clothing. Healy’s father died in 1962, and Healy lived in the family home until 1971.

Healy was employed as an asbestos worker alongside his father in 1952 and 1953. From 1957 to 1998, Healy worked as a Chicago police officer, and from 1960 to 1965, he also worked part-time at his uncle’s asbestos company.

John Healy contracted asbestosis, which prompted a lawsuit and an appeal similar to this proceeding (which will be addressed later in our analysis). 1 Healy’s cousin, Marguerite Ryan Kiley, who lived with the Healy family from 1941 to 1955, was diagnosed with an asbestos-related medical condition in 1996.

In December 1998, Healy’s physician, Dr. Michael Ramsey, ordered chest X rays as part of a general physical. Those X rays displayed cloudiness in Healy’s lungs, and the written X-ray report noted that Healy’s results suggested “the presence of pulmonary fibrosis” and that the condition of his lungs was “seen in patients with asbestosis.” The radiology report concluded with the inquiry, “Does this patient have an asbestos exposure history?” No evidence was offered that Healy was shown a copy of the December 1998 reports.

Dr. Ramsey referred Healy to Dr. J. Peter Szidon, a pulmonologist, who examined Healy on January 5, 1999. Healy said he told Dr. Szidon of his father and brother’s work history and his own exposure to asbestos and told the doctor that his brother was being treated for asbestosis. Healy said he and Dr. Szidon had “very general discussions” about asbestos exposure. Healy said that at that time, he believed that asbestos could cause lung disease. According to a letter written by Dr. Szidon on January 11, 1999, Healy told him that his father died of asbestosis and emphysema.

A letter from Dr. Szidon addressed to Dr. Ramsey and another physician regarding the January 5, 1999, examination noted Healy’s symptoms and the history of asbestos exposure of Healy and his family. Dr. Szidon concluded with the following paragraph:

“It seems that this gentleman has asbestosis. Confirmation will be sought by obtaining a CT-scan of his chest. We will review him again in the clinic next week, after the results CT-scans [sic] are available and provide you with follow up.”

Dr. Szidon said that letter was not relayed to Healy.

On January 11, 1999, Dr. Szidon saw Healy again and that meeting was chronicled in a second letter to Dr. Ramsey. Healy received a copy of that letter, which states in relevant part:

“We met with Mr. Healy on January 11, 1999, to discuss the results of his CT-scan. The CT-scan shows extensive pulmonary fibrosis, predominately [sic] in both lung bases. *** It appears that the diagnosis, of asbestosis has been supported, on clinical and radiographic criteria. Since there is an apparent relative paucity of exposure by history, I am less than fully convinced. An alternative diagnosis, idiopathfic] pulmonary fibrosis[,] is possible. 2
We discussed with [Healy] the following items: ‘asbestosis, ’ as a diagnostic label in view of the mildness of lung involvement, as evidenced by a TLC [Total Lung Capacity] of 73% of predicted. *** The discussion centered primarily on describing the high[ ] risk of lung cancer. The patient had a [sz'c] exposure to asbestos, coupled with a significant smoking history.” (Emphasis added.)

Dr. Szidon said that during one of the January 1999 meetings, he told Healy there was no question he had been exposed to asbestos because the pleural plaque in his lungs was the “near signature” of such exposure.

Regarding his remark in the January 11, 1999, letter that the “diagnosis of asbestosis has been supported,” Dr. Szidon stated in 2002:

“This should be interpreted to mean that I did not make the diagnosis of asbestosis. An alternative diagnosis [of] idiopathic fibrosis is possible, I should have said is also possible. So at that point I was ambivalent and uncertain and I recall very clearly that I transmitted that uncertainty to Mr. Healy. I did not make a diagnosis.”

As to his discussion with Healy chronicled in the letter, Dr. Szidon later stated:

“I wasn’t certain that asbestosis was present because I was dealing with a positive exposure and with a normal lung function and I didn’t want to put a label that was unwarranted. *** My recollection is that we discussed the certainty of his asbestos exposure. There was absolutely no question that he had, had been exposed. The evidence was there, there were plaques and there was his history.”

Healy stated that Dr. Szidon told him in January 1999 that his family history and exposure to asbestos was not sufficient to cause lung damage. At that point, Healy thought his doctors did not believe he had asbestosis.

In late 2000 and early 2001, Healy began experiencing shortness of breath and consulted another doctor, who admitted him to the cardiology unit of Rush-Presbyterian Hospital. In May 2001, Healy was examined by Dr. David Cugell, who is recognized in the field of asbestos-related diseases, and Dr. Cugell determined that Healy had advanced end-stage asbestosis. Dr. Cugell testified that Healy’s direct asbestos exposure and his exposure from his family household were substantial contributing factors to Healy’s condition.

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833 N.E.2d 906, 359 Ill. App. 3d 186, 295 Ill. Dec. 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/healy-v-owens-illinois-inc-illappct-2005.