NO. 3-96-0039
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
VENETTA KAY JOHNSON, ) Appeal from the Circuit Court
Individually and as Special ) of the 10th Judicial Circuit,
Administrator of the Estate ) Peoria County, Illinois
of Charles E. Johnson, )
Deceased )
)
Plaintiff-Appellant, )
Cross-Appellee, )
v. ) No. 93-L-544
OWENS-CORNING FIBERGLASS )
CORPORATION, et al., )
Defendants, )
and )
E.D.BULLARD COMPANY, et al., )
) Honorable
Defendants-Appellees, ) John A. Barra,
Cross-Appellants. ) Judge Presiding
PRESIDING JUSTICE BRESLIN delivered the opinion of the court:
Venetta Johnson, individually and as Special Administrator of
the Estate of Charles Johnson, filed a multi-count complaint
against numerous defendants asserting that Charles had contracted
lung cancer from exposure to their asbestos-containing products.
The trial court granted summary judgment to all defendants on the
question of whether Charles' death was caused by exposure to
asbestos. We hold that summary judgment was improper on the issue
of medical causation because expert opinions based on hypothetical
questions in combination with the testimony of co-employees gave
rise to a triable question of fact. We also hold that the Lohrmann
"frequency, regularity and proximity" test for asbestos product
exposure applies at the summary judgment stage. Additionally we
hold that summary judgment was improper as to defendants A.P. Green
and Sager Glove Company because a triable question remained as to
whether their products caused or contributed to Charles' lung
cancer. We thus affirm in part, reverse in part and remand.
BACKGROUND
Charles Johnson worked in the wire mill at Keystone Steel &
Wire Company in Bartonville, Illinois almost continuously from 1955
until 1991, when he was diagnosed with lung cancer. He died on
October 10 of that year. During the years preceding his death,
Charles regularly smoked cigarettes.
The parties generated a substantial amount of discovery.
Doctors Jeremiah Crabb, Daniel Parr and Revathi Swaminathan were
among the physicians deposed in anticipation of trial. Dr. Parr
was Charles' family physician. He testified that, assuming Charles
had habitually smoked cigarettes and was occupationally exposed to
asbestos, both factors would be implicated as causes of Charles'
lung cancer. Dr. Jeremiah Crabb, a pulmonologist, testified that
in his opinion, assuming there had been occupational exposure in
addition to cigarette usage, both factors could be implicated as
"co-carcinogens." Dr. Revathi Swaminathan, an oncologist,
testified in her deposition that she had insufficient factual data
to state with a reasonable degree of medical certainty whether
asbestos played any role in causing Charles' cancer. However, Dr.
Swaminathan also stated that, assuming that there was exposure to
asbestos, such exposure would be a contributing factor in causing
Charles' lung cancer. In addition, Dr. Swaminathan signed an
affidavit which was attached to plaintiff's response to defendants'
motions for summary judgment. Therein Dr. Swaminathan stated that,
in her opinion, occupational exposure to asbestos was a cause of
Charles' lung cancer and lung cancer was the cause of his death.
In addition to testimony from physicians, the parties deposed
several of Charles' co-employees from the Keystone plant. The
employees testified about the various products used in the plant,
and some employees testified as to when and where products were
used with relation to Charles.
Because the facts in this case are involved and complex, we
will make references to specific parties and any additional
relevant facts in the appropriate portion of the discussion below.
We note, however, as the parties have pointed out, that the trial
court made an error in its order when it stated that Charles worked
in the steel mill. We acknowledge the error and review this case
de novo knowing that Charles was employed in the wire mill.
Most of the defendants moved for summary judgment following
discovery, arguing that no material issue of fact existed
concerning medical causation. The defendants asserted that
plaintiff could not put forth evidence demonstrating that Charles'
death resulted from exposure to asbestos products rather than his
smoking habits. Additionally, certain defendants moved for summary
judgment on the basis that no issue of material fact existed
concerning whether Charles had been exposed to their products. On
December 8, 1995, the trial court entered an order granting summary
judgment to all defendants. The court concluded that the evidence
was insufficient to maintain an action for an injury caused by
exposure to asbestos dust. Furthermore, the court granted several
defendants summary judgment on the additional basis of insufficient
evidence of product exposure. The plaintiff appeals the court's
order granting summary judgment and defendant E.D. Bullard cross-
appeals the trial court's decision not to award it summary judgment
on the issue of successor liability as well as medical causation.
SUMMARY JUDGMENT
It cannot be said too often that summary judgment is a remedy
which should be granted with caution. It should only be granted
when the pleadings, depositions, admissions and affidavits show
that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-
1005(c) (West 1994); Carruthers v. B.C. Christopher & Co., 57 Ill.
2d 376, 313 N.E.2d 457 (1974). This Court's review of an order
granting summary judgment is de novo. Andrews v. Cramer, 256 Ill.
App. 3d 766, 629 N.E.2d 133 (1993).
CAUSATION
In an asbestos case based upon negligence or strict products
liability, it is essential that plaintiff prove that the
defendant's asbestos was the "cause-in-fact" of the injury.
Causation evidence may be direct or circumstantial; the latter type
must justify an inference of probability rather than possibility.
Naden v. Celotex Corp., 190 Ill. App. 3d 410, 546 N.E.2d 766
(1989). However, the plaintiff has two burdens with respect to
causation-in-fact. First, the plaintiff must prove medical
causation -- that asbestos was a cause of the injury. Second,
plaintiff must show that the defendants' asbestos was a cause of
the decedent's injuries. Thacker v. UNR Industries, 151 Ill. 2d
343, 603 N.E.2d 449 (1992). In this case, both of the plaintiff's
burdens are at issue.
1. Medical Causation
We are first concerned with whether there is sufficient
evidence in the record for the plaintiff to meet her burden of
proving that asbestos exposure caused or contributed to Charles'
lung cancer. The defendants contend that the record demonstrates
that the ultimate cause of death was Charles' smoking habit, not
any exposure to asbestos, and that no evidence was put forth to
suggest Charles died from exposure to asbestos. We disagree.
Several physicians testified on behalf of the plaintiff. Dr.
Parr and Dr. Crabb testified that, assuming Charles was
occupationally exposed to asbestos, such exposure would be
"implicated" as a cause of the cancer. Additionally, Dr.
Swaminathan provided an affidavit in which she concluded, based on
information given to her, that if Charles was occupationally
exposed to asbestos, the exposure would be a cause of Charles' lung
cancer. Defendants argue that Swaminathan's affidavit should not
be given any weight because it conflicts with her deposition
testimony. Here the defendants rely on Vesey v. Chicago Housing
Authority, 145 Ill. 2d 404, 583 N.E.2d 538 (1991) (nonmovant cannot
use an affidavit to contradict prior deposition testimony to place
material facts in issue). However, the statement in her deposition
that she retained her affidavit opinion prevents Vesey's
application in this instance.
Additionally, several Keystone employees who worked in the
wire mill during the periods Charles worked there testified that
asbestos products were being used. For example, William
Hendershott testified that asbestos gloves and asbestos-containing
foil were used, as well as a product called Therm-O-Flake. James
Todd testified that asbestos gloves were used. Donald Fessner
testified that asbestos pipe insulation was used. James Murphy
testified that a substantial number of asbestos-containing products
were used at the Keystone plant.
The testimony of the three physicians presented evidence that,
if there were occupational exposure, a jury could conclude that it
played a part in causing the lung cancer. Now it is true that
this testimony, standing alone, would not be sufficient to avoid
summary judgment. See Joiner v. General Electric Co., 864 F. Supp.
1310 (N.D. GA. 1994) (expert opinion of cause of plaintiff's lung
cancer barred because expert made unfounded assumption that
plaintiff was exposed to certain carcinogenic materials). However,
when viewed in conjunction with the employees' testimony regarding
Charles' occupational exposure to asbestos, (see Schultz v. Keene
Corp., 729 F. Supp. 609 (N.D. Ill. 1990) (plaintiff can demonstrate
exposure to particular products through testimony of co-workers)),
a question arises as to whether asbestos played a role in causing
the lung cancer. Therefore, we hold that an issue of fact
concerning medical causation had been presented which precluded
summary judgment. We thus reverse the trial court's ruling on this
issue.
2. Product Identification / Asbestos Exposure
The next issue is whether the evidence presented a triable
issue of fact as to whether Charles' lung cancer was caused by
exposure to certain defendants' products.
It is essential to plaintiff's case that she establish that
Charles was exposed to an injury-causing, asbestos-containing
product which was manufactured or supplied by a particular
defendant. Estate of Henderson v. W.R. Grace Company, 185 Ill.
App. 3d 523, 541 N.E.2d 805 (1989). We must first determine what
test should be employed at the summary judgment stage to ascertain
whether plaintiff has met her burden with respect to product
exposure.
Plaintiff maintains that she does not carry any burden on
summary judgment. Rather, she insists that it is the defendants'
burden to establish their right to judgment as a matter of law,
even in the absence of any evidentiary matter filed by plaintiff in
opposition to the motion for summary judgment. While the
defendants do not deny that they must establish their right to
judgment as a matter of law, they contend that in order for the
plaintiff to defeat a motion for summary judgment, the plaintiff
must show exposure to a particular defendant's product.
In Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th
Cir. 1986), a case involving alleged asbestos exposure in a
shipyard, the court fashioned a rule which is referred to as the
"frequency, regularity and proximity" test. This test was
specifically adopted by our Supreme Court in Thacker, 151 Ill. 2d
at 359, 603 N.E.2d at 457. It requires that a plaintiff "show that
the injured worker was exposed to the defendant's asbestos through
proof that (1) he regularly worked in an area where the defendants
asbestos was frequently used and (2) the injured worker did, in
fact, work sufficiently close to this area so as to come into
contact with the defendant's product." Thacker, 151 Ill. 2d at
359, 603 N.E.2d at 457.
Plaintiff, however, correctly points out that the Court in
Thacker did not apply this test at the summary judgment stage. The
test was applied following a verdict when the issue concerned
whether a directed verdict or judgment notwithstanding the verdict
was mandated. Plaintiff argues that it would be improper to apply
the "frequency, regularity and proximity" test at the summary
judgment stage. However, we find Lohrmann to be instructive on
this point.
In Lohrmann, the court considered, among other things, a
district court's award of directed verdicts to three manufacturers
of asbestos products which were used in the plaintiff's workplace.
At the close of the plaintiff's case, the trial court directed a
verdict in favor of the defendants, ruling that insufficient
evidence had been presented to show causation between the use of
the products and the plaintiff's asbestosis. On appeal, the
plaintiff urged the court to adopt a rule which would allow a
plaintiff to present the issue of causation to a jury so long as he
could present any evidence that he was present at the workplace at
the same time as a defendant's asbestos-containing product. The
court rejected this argument, concluding it would be contrary to
the law of substantial causation, especially when considering the
size of the plaintiff's workplace. Lohrmann, 782 F.2d at 1162.
The court then looked to the district court's application of
the "frequency, regularity and proximity" test employed by the
district judge at the summary judgment stage. The court concluded,
in dicta, that such an application of the test would have a de
minimus effect because it simply requires a plaintiff to prove more
than minimum contact. It reasoned that such a requirement would be
reasonable considering the length of time needed for asbestosis to
develop. Without proof of such exposure, a reasonable inference of
substantial causation cannot be made. Lohrmann, 782 F.2d at 1162-
63. We agree.
To allow plaintiff to present her case to the jury based on
mere allegations would be inconsistent with the requirement of some
proof that the defendant's conduct caused the injury. See
Restatement (Second) of Torts § 431, Comment (a) (1965). Unless
there is sufficient evidence for the jury to reasonably conclude
that the defendant's conduct was a cause of the plaintiff's injury,
plaintiff cannot present the question of causation to the jury.
Thacker, 151 Ill. 2d at 355, 603 N.E.2d at 455; see Blackston v.
Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir. 1985);
Schultz v. Keene Corp., 729 F. Supp. 609 (N.D. Ill. 1990) (by
showing that plaintiff worked "with or in close proximity" to
defendants asbestos product plaintiff can overcome motion for
summary judgment). Plaintiff, therefore, has the burden of proving
more than just minimal contact with defendants asbestos product.
We do not think this is too heavy a burden for plaintiff to bear.
Such a result balances the plaintiff's difficulties in proving
product exposure with the defendant's right to be free from
liability based upon speculation and guesswork. See Thacker, 151
Ill. 2d at 359, 603 N.E.2d at 457.
Therefore, we hold that in order to survive a motion for
summary judgment on the issue of exposure to a defendant's asbestos
product, the plaintiff must put forth some evidence tending to show
that (1) the decedent regularly worked in an area where the
defendant's asbestos was frequently used and (2) the decedent
worked close enough to this area to come into contact with the
defendant's product.
Several of the defendants were granted summary judgment in
this case because the trial court found that there was no triable
issue of fact as to whether Charles was exposed to their products.
We will discuss the proffered evidence concerning each defendant
individually.
A. Zoltek Corporation
Zoltek president, Zsolst Rumy, testified in his deposition
that Zoltek sold asbestos products to Keystone. This testimony is
supported by invoices, as well as the deposition testimony of
Charles Brown, who purchased products for Keystone during at least
some of the years Charles worked there.
Zoltek's summary judgment motion, however, included no
supporting affidavits or other evidence. The plaintiff argues that
the failure to attach supporting affidavits and documents permits
her to overcome a motion for summary judgment on the basis of her
well-pleaded facts. She is in error, however, as the court may
look to the entire record to determine whether a triable issue of
fact does indeed exist. Carruthers v. B.C. Christopher & Co., 57
Ill. 2d 376, 313 N.E.2d 457 (1974). Moreover, defendant can obtain
summary judgment by simply establishing that plaintiff cannot prove
a necessary element of her case. See Zimmer v. Celotex Corp., 192
Ill. App. 3d 1088, 549 N.E.2d 881 (1989) (citing Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)).
In the present case there is no evidence indicating where in
the Keystone plant the Zoltek products were used. Without such
evidence, plaintiff cannot establish even a minimum level of
contact and thus cannot meet the Thacker standard. Therefore,
summary judgment was appropriate as to Zoltek.
B. A.P. Green Industries, Inc.
The plaintiff produced the deposition testimony of William
Hendershott, a brick mason who worked for Keystone for many of the
same years as Charles. Hendershott testified that he often used a
product called Thermo-O-Flake from 1959 until it was renamed and
the asbestos was removed from the product in the 1980s. Therm-O-
Flake was an A.P. Green product that contained asbestos.
Hendershott testified that when he used the product he would mix it
in a concrete type mixer and clouds of dust would rise. Moreover,
Hendershott testified that other employees could be exposed to the
dust if they were passing through the area.
A.P. Green argues that insufficient evidence was put forth
regarding the particular asbestos-containing product used, the area
in which it was used, and the regularity of Charles' employment
within a zone reached by the fiber drift. We disagree.
Hendershott's deposition testimony described how long he used
the materials and the fact that he used Therm-O-Flake with
regularity. He also testified that its use created dust in the
very mill where Charles was employed. Anyone who walked through
Hendershott's area would be exposed to the dust, and countless
others would be exposed to the particles drifting throughout the
mill. We think that a triable issue of fact exists as to whether
Charles was sufficiently exposed to Therm-O-Flake to find
causation. See Thacker, 151 Ill. 2d at 364-65, 603 N.E.2d at 459
(decedent was in sufficient proximity to asbestos due to fiber
drift even though product was processed in different part of
plant). Therefore we reverse the trial court's judgment granting
A.P. Green summary judgment.
C. Sager Glove Company
Keystone purchased 200 pairs of asbestos gloves from Sager.
Keystone's purchase order for the gloves states in longhand, "WM
Welding, Galv, Pat, + others." The plaintiff claims that this
statement establishes that the gloves were used in the welding,
galvanizing, and patenting departments of the wire mill where
Charles worked. Further, William Hendershott and James Todd
testified that the employees in the mill regularly used gloves
similar to those sold by Sager. Although we do not think an
inference can be drawn from the purchase order alone, when viewed
in combination with the testimony of these employees, we think a
triable issue of fact exists as to whether the gloves caused or
contributed to Charles' cancer. A jury could reasonably infer that
Charles came into contact with Sager's gloves on a regular basis.
Therefore, the decision granting Sager summary judgment is
reversed.
D. Garlock, Inc.
In an answer to an interrogatory, plaintiff stated that James
Riggenbaugh and Denny Brown could testify that Charles was exposed
to Garlock's asbestos containing products, such as Garlock
galvanizing pads and Garlock Packings. James Riggenbaugh was not
deposed and we have found no testimony or affidavit of Denny Brown
in the record, but there is a Charles Brown who was deposed.
Charles Brown testified however, that he did not know where any
Garlock products may have been used at Keystone.
Plaintiff argues that her interrogatory answer precludes
summary judgment. However, Garlock correctly points out that the
answer would be inadmissible at trial and may not be considered at
the summary judgment stage. See Abel v. General Motors Corp., 155
Ill. App. 3d 208, 507 N.E.2d 1369 (1987). Plaintiff's answer to
the interrogatory is clearly inadmissible hearsay. Therefore, the
answer is not evidence which could defeat Garlock's motion for
summary judgment, and the trial court properly granted Garlock's
motion.
E. A & M Insulation Company
Evidence against A & M consists of records which establish
that it sold transite, an asbestos-containing product, to Keystone.
Although the documents reveal that transite was sold to the wire
mill between 1967 and 1971, this evidence does not support an
inference that the wire mill used it in a manner which would cause
asbestos exposure to Charles. Without evidence that Charles
regularly worked in close proximity to the product, or that the
product emitted a dust of some type, plaintiff cannot succeed
against A & M Insulation. Since there was no evidence to suggest
any dust was created or that the product was frequently and
regularly used in Charles' proximity, summary judgment in A & M's
favor was appropriate.
F. Kaiser Aluminum & Chemical Corporation
Plaintiff relies on the deposition testimony of several
employees who established that Kaiser firebrick was used at
Keystone. One employee testified that he had observed Charles
handling Kaiser firebrick. However, Kaiser provided an affidavit
of William Boyd, a Kaiser employee who claimed to have personal
knowledge of the composition of Kaiser products, wherein Boyd
stated that Kaiser's firebrick did not contain asbestos. Plaintiff
did not put forth evidence to contest this affidavit. Therefore,
because there is no evidence that Kaiser firebrick contained
asbestos or caused asbestos exposure at Keystone, summary judgment
was properly awarded to Kaiser.
G. Dresser Industries, Inc.
The evidence against Dresser consists of two affidavits. The
first affidavit was not drafted for this case. It was originally
filed in a previous case titled Costa v. Armstrong World
Industries, (Peoria County Circuit Court No. 88 L 239) by Ken
Mayberry, a Keystone employee. Mayberry stated in his affidavit
that he worked at Keystone from 1952 until 1988. He stated further
that several Harbison-Walker (a Dresser subsidiary) products were
sent to Keystone and that they were used in areas where the
decedent in Costa worked. Nothing in the record, however,
indicates that Nick Costa worked in the same area as Charles.
Additionally, Mayberry began working at Keystone earlier than
Charles, and there is no evidence suggesting when Costa worked
there.
The second affidavit was from Nichol Jameson, a Harbison-
Walker employee. Jameson's affidavit, however, merely reflects
that Dresser sold more products to Keystone than those originally
identified by Dresser. Neither affidavit sheds any light on
potential asbestos exposure to Charles. Hence, summary judgment
was properly awarded to Dresser.
SUCCESSOR LIABILITY
Finally, E.D. Bullard argues that it is wrongfully being sued
for the acts of a predecessor in interest and that the trial court
should have granted summary judgment in its favor on this basis as
well. Bullard purchased the assets and liabilities of Standard
Industrial Products Company of Illinois (Standard) in 1979.
Thereafter, Bullard operated under the name of Standard Industrial
Products Company.
Bullard claims that the plaintiff is attempting to hold it
liable for Standard's actions prior to the 1979 purchase and that
this is inappropriate under the doctrine of successor liability.
Plaintiff insists, however, that she is not attempting to hold
Bullard liable for Standard's actions, but instead is attempting to
hold it liable for its own post-purchase actions. We agree.
As plaintiff readily concedes, she may not seek damages from
Bullard for Standard's actions prior to the 1979 sale. Hoppa v.
Schermerhorn, 295 Ill. App. 3d 61, 630 N.E.2d 1042 (1994). However,
she may assert a cause of action for any post-purchase asbestos
exposure. Therefore, summary judgment was properly denied to
Bullard. Any concern Bullard may have about jury confusion over
this issue may be avoided by filing the appropriate pre-trial
motions to limit the evidence to post-1979 occurrences.
For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed in part, reversed in part and remanded
for further proceedings consistent with this opinion.
Affirmed in part, reversed in part and remanded.
LYTTON and McCUSKEY, JJ., concur.