Much to the defense bar’s dismay, in late 2019, the First District Appellate Court affirmed and upheld a $4.6 million verdict against John Crane Inc. in Daniels v. John Crane, Inc., 2019 IL App (1st) 190170.
In that case, the decedent’s estate filed suit, alleging that the decedent developed pleural mesothelioma due to asbestos exposure. The decedent worked as a union pipefitter from 1957 to 1985. Prior to his death, the decedent testified to significant asbestos exposure from valves and gaskets, including gaskets manufactured by John Crane.
At trial, plaintiff's expert, Dr. Jerrold Abraham, testified that the decedent's asbestos exposure through his work with John Crane products was a substantial contributing factor in his development of mesothelioma. Dr. Abraham did not quantify the decedent's exposure through John Crane products, and he testified that exposure to all types of asbestos fibers can cause mesothelioma. Moreover, according to Dr. Abraham, while mesothelioma is a dose-response disease – meaning the more exposure an individual has the more likely they are to contract the disease – once someone sustains an asbestos-related disease, it does not matter whether they have had a high or low exposure to asbestos. Dr. Abraham conceded that all of the decedent’s exposures, including through friable insulation, were substantial contributing factors to the development of his illness. Essentially, Dr. Abraham opined that if the decedent was exposed to asbestos through John Crane products, such exposure was a substantial factor to the development of his illness, regardless of the dose of the exposure or the dose of the decedent’s exposures through other sources.
Plaintiff also presented William Ewing, a Certified Industrial Hygienist. Ewing testified that the decedent was exposed to asbestos by using picks, chisels, and hammers to remove John Crane packing, and by using brushes and sanders to dislodge or reshape John Crane gaskets. Ewing quantified the duration of the decedent’s exposure (1957 to 1985) and his alleged dosage amount (.05 to 1 fibers per cubic centimeter when removing and installing gaskets; .05 to 2 fibers per cubic centimeter when removing packing).
At the close of evidence, during the jury instruction conference, the plaintiff presented the standard Illinois Pattern Jury Instruction for proximate causation. John Crane objected and presented its own instruction regarding proximate cause. John Crane argued that the jury instruction should have included language requiring the jury to find that John Crane’s products were a “substantial factor” in the development of the decedent’s illness in order for proximate cause to exist. John Crane further submitted an instruction defining substantial factor as if, absent John Crane’s conduct, the injury would not have occurred. John Crane further also submitted a “state of the art” instruction, which would have required the plaintiff to prove that John Crane and those in the asbestos products manufacturing industry knew of the alleged dangerous nature of John Crane’s packing and gaskets. John Crane argued that such knowledge was required to establish a duty to warn. The trial court rejected these instructions submitted by John Crane.
Ultimately, a Cook County jury found for the plaintiff and entered a $6 million verdict. The trial court reduced the verdict to $4.8 million to account for pre-trial settlements.
In a posttrial motion, John Crane argued that Dr. Abraham should not have been allowed to testify because he essentially testified that the decedent’s cumulative dose (or "each and every exposure") to all asbestos products caused his injuries. In other words, John Crane claimed that Dr. Abraham failed to differentiate the decedent’s exposure through John Crane products from his exposure through other sources. In addition to arguing that the court erred in rejecting the previously discussed jury instructions, John Crane also argued that the trial court erred by failing to properly analyze settlements the plaintiff entered into with certain defendants. The trial court denied John Crane’s motion.
On appeal, the First District first determined that the trial court properly allowed Dr. Abraham to testify. The court determined that Dr. Abraham did not testify that even a “de minimis” exposure to asbestos can cause illness. Rather, the court characterized Dr. Abraham’s testimony as emphasizing the importance of understanding the dose of asbestos fibers to which a person was exposed when determining causation. Moreover, the court believed the plaintiff established the dose of the decedent’s exposure through William Ewing’s testimony, who quantified the decedent’s exposure range and opined that the dosage level exceeded the background rate of asbestos exposure one would experience from the ambient environment. Overall, the court concluded that Dr. Abraham’s testimony provided the background knowledge the jury required to interpret Ewing’s opinions regarding the dose of the decedent’s asbestos exposure through John Crane products.
John Crane also argued that the trial court erred in excluding proposed jury instructions that included language regarding Illinois' substantial factor causation test. On this point, John Crane appeared to argue that the jury should have been instructed on the Illinois frequency, regularity, and proximity causation standard used in asbestos cases. The court found that the Illinois pattern instructions on causation (which do not use the terms substantial factor or frequency, regularity, proximity) sufficiently instructed the jury. The court also determined that using these terms in instructions would have improperly suggested that the plaintiff had to prove a specific dosage amount, when, under Illinois law, a plaintiff need only prove that exposure by a defendant was legally significant. The appellate court seemed to take the position that the frequency, regularity, proximity test is relevant when the court is making a legal determination on whether or not the plaintiff has met her burden of proof in an asbestos case, but the jury should not be given instructions using this language because it suggests that the plaintiff must quantify her exposure levels.
As to John Crane’s proposed “state of the art” jury instruction, John Crane argued that the jury should have been instructed that the plaintiff was required to prove either that John Crane specifically knew of the hazards of asbestos or, if not, that members of John Crane's industry had such knowledge. The court rejected this argument because there was evidence in the case that John Crane itself had knowledge regarding the dangers of asbestos when the decedent used its products. Moreover, the court believed that John Crane’s proposed instruction would have required the jury to find both that John Crane and those in its industry knew of the dangerous nature of John Crane’s products. According to the court, industry knowledge can be used to support a failure to warn claim, but it is not necessary evidence. Rather, the defendant's knowledge is at issue in such a claim.
Finally, the court rejected John Crane's argument that certain settled defendants should have appeared on the jury form and that the court should have compelled the plaintiff to disclose the amounts of certain pre-trial settlements. The court reasoned that it is well settled Illinois law that a party defendant cannot include former co-defendants or non-parties on the verdict form. As to the settlement amount issue, John Crane argued that the trial court erred in finding that the plaintiff reached good faith settlements with certain defendants without requiring the parties to disclose the settlement amounts. In rejecting this argument, the court determined that the trial court had sufficient evidence – including the plaintiff’s theory of liability, that plaintiff sought in excess of $50,000, and that John Crane was asserting a sole proximate cause defense – to make its good faith findings without the need to determine the amounts of the settlements.
Overall, while there have been recent positive rulings favoring defendants from the First District and the Circuit Court of Cook County in asbestos litigation, those rulings have largely been limited to the issue of personal jurisdiction. Unfortunately for defendants, the court’s opinion in this case is largely consistent with the trial court’s rulings on these issues. However, a possible silver lining is that defendants might be able to rely on this opinion to argue that, at trial, plaintiffs cannot simply argue that all exposures to asbestos cause or contribute to the development of mesothelioma, but rather, must present some evidence establishing the dosage level of a plaintiff’s asbestos exposure.
City of St. Louis falls to 5th on the Judicial Hellhole list with Madison and St. Clair Counties, Illinois close behind ranking 7th.February 12, 2020 | Laura Beasley and Meghan Kane
Thanks to “junk science,” the “Show-Me-Your-Lawsuit” state remains within the top 10 of judicial hellholes throughout the country. St. Louis is home to the largest talc verdict to date thanks to a July 2018 City of St. Louis verdict awarding $550 million in actual damages and $4.14 billion in punitive damages to a group of 22 plaintiffs. Not only are there forum shopping concerns with regards to the talc litigation, there is concern that St. Louis City judges allow plaintiffs’ lawyers to introduce “junk science” as evidence. Specifically, plaintiffs’ experts have been allowed to tell jurors that talcum powder causes ovarian cancer, even though research is mixed and biased as to increased risk, if any, with the use of talcum powder. Nonetheless, the City of St. Louis continues to allow this “junk science” to be heard in their courtrooms, which can result in big verdicts.
The Missouri legislature, however, has taken steps toward addressing the plaintiff-friendly forum, resulting in the City of St. Louis seeing a decline from 4th to 5th in the judicial hellhole rankings this year. But it has a long way to go, as do Madison and St. Clair Counties in Illinois.
In Madison and St. Clair Counties, the plaintiffs’ bar continues to push pro-plaintiff agendas. For example, pro-plaintiff legislation eliminating the statute of repose for asbestos-related occupational disease has been passed, along with legislation which essentially eliminates the power of special interrogatories. The ATRF Report also puts the blame for these judicial hellholes on the Illinois Supreme Court.
The American Tort Reform Foundation (“ATRF”) Report attributes “no-injury” lawsuits as overburdening Illinois businesses, and the Illinois Supreme Court helped open those floodgates when it issued its decision in Rosenbach v. Six Flags Entertainment, 2019 IL 123186. In Rosenbach, the court found that the plaintiff need not have suffered actual harm to maintain and win a lawsuit filed under the Illinois Biometric Information Privacy Act (“BIPA”), 740 Ill. Comp. Stat. 14 (2008). Since this decision, the ATRF Report indicates that more than 250 lawsuits have been filed with BIPA at the forefront of the issues in those suits, making businesses vulnerable to massive potential liability in the State of Illinois.
Moreover, according to the ATRF Report, Madison and St. Clair Counties continue to remain the preferred jurisdiction in the United States for plaintiffs’ lawyers to file asbestos lawsuits. The Report further notes that the Gori Law Firm (formerly known as Gori, Julian & Associates, P.C.), “one of the top asbestos filers in the nation,” was able to “stack” [sic] the deck higher when Barry Julian, co-founding partner of Gori Julian, was appointed to the Madison County bench in January 2019. The ATRF Report claims the “plaintiff-friendly reputation, low evidentiary standards, and judges’ willingness to allow meritless claims to survive” make Madison and St. Clair Counties a flocking ground for asbestos litigation.
Until the legislature in both Missouri and Illinois decide to create meaningful reforms, these three counties are likely to continue to rank high on ATRF Report’s Judicial Hellholes list.
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In, Doe v. Alexian Brothers Behavioral Health Hosp., 2019 IL App (1st) 180955, plaintiff filed suit for emotional injuries after a former hospital employee mailed the plaintiff a harassing letter that contained vile, personal statements related to private information in the plaintiff’s mental health records. She alleged that – before it fired the employee – the hospital failed to properly train the employee, supervise the employee, and monitor the employee’s use of records, which was more than the minimum necessary to complete her assigned billing tasks. The hospital denied the woman’s allegations, saying the former employee was solely responsible for the injuries.
At trial, the defense submitted to the jury a special interrogatory asking if the former employee was the “sole proximate cause of the plaintiff’s injuries” which they answered in the affirmative. The initial jury awarded was $1 million in damages in favor of the plaintiff. After the verdict, the court determined that the verdict was inconsistent with the jury’s answer to the special interrogatory and, therefore, entered judgment for the hospital. Under the new rules, the court can now direct the jury to further consider its answers and verdict if the general verdict and special interrogatory answer are inconsistent. If the jury cannot reconcile them, the court shall order a new trial. Further, the court could have chosen to not even allow the defense to submit a special interrogatory.
On appeal, the plaintiff argued that the special interrogatory was improper because the case was not about sole proximate cause. The plaintiff also argued that the special interrogatory was ambiguous and confusing. The plaintiff noted that the trial court refused a jury instruction on the issue of sole proximate cause and did not specifically define the term sole proximate cause.
The appellate court found that the general verdict was unquestionably inconsistent with the special interrogatory answer. However, the special interrogatory was confusing and ambiguous in the context of all of the jury instructions. The appellate court ordered a new trial.
Under the new rule, 735 ILCS 5/2-1108, Doe may not have been appealed. As of January 2020, the new law amends the code of Civil Procedure and gives trial court judges the discretion to grant requests for special interrogatories. Previously, if a jury’s answer to a special interrogatory question conflicted with its general verdict, as was the case in Doe, then the special finding would supersede the verdict. Although the new law does not eliminate special interrogatories entirely it gives the court the discretion to grant the request for them and it gives attorneys the right to explain to the jurors what may result if the general verdict is inconsistent with any special finding which will likely make it for jurors to understand fundamental legal questions presented in certain negligence and causation cases.
Special interrogatories were an important tool that helped juries decided the facts necessary to support a verdict. They were especially useful in places where there are holes in the jury instructions. Where in the absence of a special interrogatory, the jury is not going to be properly instructed on the legal issues it’s supposed to address. The Doe case is a perfect example of a hole in the jury instructions where the use of a special interrogatory could be used to assist the jury in rendering fault. The special interrogatory on sole proximate cause enabled the Hospital to get the jury to consider whose conduct solely caused plaintiff’s injuries. Although the appellate court determined the special interrogatories confusing and ambiguous, one can see how important it was for the jury to determine who was solely at fault for the verdict rendered.
It is too early to tell whether special interrogatories will become obsolete, but it is clear that the power behind them is now minimized.
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Attorneys: Laura Beasley
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