Dunham v. Honeywell Int'l, Inc.
| Decision Date | 26 June 2013 |
| Docket Number | NO. 4-12-0608,4-12-0608 |
| Citation | 2013 IL App (4th) 120608 |
| Court | United States Appellate Court of Illinois |
| Parties | LARRY DUNHAM and MARY VENTURINI DUNHAM, Plaintiffs-Appellants, v. HONEYWELL INTERNATIONAL, INC. Defendant-Appellee, and OWENS-ILLINOIS, INC.; PNUEMO ABEX CORPORATION; PNEUMO ABEX, LLC; METROPOLITAN LIFE INSURANCE COMPANY; RAPID-AMERICAN CORPORATION; JOHN CRANE, INC.; MINE SAFETY APPLIANCES COMPANY; and SPRINKMAN SONS CORPORATION, Defendants. |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of McLean County No. 08L158
Honorable Scott Drazewski, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
¶ 1 Held: The appellate court affirmed in part and reversed in part, concluding the trial court (1) erred by granting defendant judgment notwithstanding the verdict on plaintiff's negligence claim but (2) properly granted defendant judgment notwithstanding the verdict on plaintiff's civil conspiracy claim.
¶ 2 Following a trial, in November 2010, a jury returned a verdict against defendant, Honeywell International, Inc. (Honeywell), on the negligence and civil conspiracy claims of plaintiff, Larry Dunham. The jury awarded Dunham $0 in compensatory damages and $700,000 in punitive damages.
¶ 3 Both parties filed posttrial motions, agreeing because the jury awarded punitivedamages but not compensatory damages, the jury's verdict could not stand. The parties disputed the appropriate form of posttrial relief, however. Honeywell requested the trial court grant judgment notwithstanding the verdict (judgment n.o.v.) for Honeywell or, in the alternative, grant a new trial. For his part, Dunham argued the court should grant him judgment n.o.v. or grant a new trial either solely on the issue of damages or, in the alternative, on all issues. Following a June 2012 hearing, the court granted Honeywell's motion and denied Dunham's motion, entering judgment n.o.v. for Honeywell on both the negligence and conspiracy claims.
¶ 4 Dunham appeals, arguing the trial court erred by granting Honeywell judgment n.o.v. on Dunham's negligence and conspiracy claims and denying Dunham's posttrial motion.
¶ 5 We affirm in part and reverse in part.
¶ 7 In October 2008, Dunham filed a complaint against Honeywell, the successor to the Bendix Corporation (Bendix); Owens-Illinois, Inc. (Owens-Illinois); Pneumo Abex Corporation; Pneumo Abex, LLC; and Metropolitan Life Insurance Company, alleging he developed mesothelioma as a result of asbestos exposure during his career as a firefighter. Dunham's complaint as to Honeywell, who is the only defendant in this appeal, included counts of negligence and civil conspiracy. Specifically, Dunham's negligence claim asserted Honeywell knew exposure to asbestos dust caused mesothelioma but, despite that knowledge, Honeywell failed to warn about the dangers of asbestos exposure or provide instruction as to safe handling methods, thereby proximately causing Dunham's mesothelioma. Dunham's conspiracy claim alleged Honeywell, along with the other named corporations, agreed to (1) falsely assert it was safe for people to be exposed to asbestos and (2) withhold information about the harmful effectsof asbestos.
¶ 9 A jury trial commenced in October 2010 on the allegations against Honeywell and Owens-Illinois, at which the parties presented the following evidence.
¶ 11 Larry Dunham testified in 1974, he started working as a firefighter for the Springfield Fire Department, a position he held for the next 30 years. During his first three years of employment, Dunham was stationed at Firehouse No. One, a two-story building consisting of living quarters on the top floor and a shop and rigs on the bottom floor. The firefighters worked 24-hour shifts, living and sleeping upstairs and sliding down firepoles to the lower level when an alarm sounded.
¶ 12 According to Dunham, the station house serviced fire engines, staff cars, a pickup truck, and a couple of dump trucks. As part of his duties, Dunham cleaned the shop on his weekday shifts, sweeping the "dust, debris, [and] papers" and taking out the trash. Dunham also entered the shop at times to obtain tools and to "kill time" with Bob Babiak, a mechanic that worked on the vehicles' brakes.
¶ 13 In the late 1970s or early 1980s, the shop moved to another location. Dunham still visited the shop "daily" to complete such tasks as filling out paperwork, replacing tools, and fueling and repairing the rigs. Depending on the nature of the repair, Dunham would sometimes "stay with the rig" while the mechanics worked on it. Dunham remembered occasions that he stayed with the rig for the entire day. The shop's location also served as a training facility, andDunham frequently passed through the shop to attend training sessions.
¶ 14 Mark Venegonia started working as a master mechanic for the Springfield Fire Department in 1986. Venegonia testified he and the other mechanics performed brake work on the trucks at least once a month and performed brake work on the cars "most all the time." The mechanics used Bendix and Raybestos brakes more frequently than other brands of brakes because "[t]hey were the best." Venegonia did not recall seeing warnings against lung cancer or disease on the packaging of Bendix or Raybestos brakes, nor did Venegonia remember a Bendix or Raybestos employee coming to the shop to tell employees the brake dust contained asbestos and could cause lung cancer. Venegonia was not sure the Bendix brakes they used at the garage contained asbestos.
¶ 15 Venegonia testified when he serviced the brakes, dust "would fall out of the drum" and accumulate in the brakes' shoes, hardware, and axle. Babiak, who worked at the station before Venegonia, "always" used an air hose to clean the drums. Venegonia, on the other hand, used a rag to wipe the brakes, throwing the rags in a bin afterward. Liquid brake cleaner did not yet exist.
¶ 16 When the mechanics were performing brake work, the firefighters, including Dunham, continued to enter and move about the shop. Venegonia estimated Dunham visited the shop about once every two weeks from 1986 until the early 2000s, although Venegonia did not recall seeing Dunham "actually coming in the garage when the brake work was being done." Venegonia denied having a "specific recollection of any particular day," remembering only that brake work was repeatedly performed at the shop and Dunham repeatedly visited the shop.
¶ 17 Kevin Pierce testified he worked as a delivery person for Brake & ClutchExchange from about 1975 to 1978, and he recalled delivering Raybestos Grey Rock brakes to the Springfield Fire Department. Pierce was not asked, nor did he testify, whether Brake & Clutch delivered Bendix brakes to the fire department.
¶ 18 Dunham entered into evidence a June 1986 United States Environmental Protection Agency publication entitled "Guidance for Preventing Asbestos Disease Among Auto Mechanics." According to the publication, millions of asbestos fibers are released during brake and clutch servicing. Using a compressed air hose to clean drum brakes can release up to 16 million asbestos fibers in the cubic meter of air around a mechanic's face, and millions of asbestos fibers can be released from drum brakes by wiping the brakes with a rag and brush. Asbestos fibers released from brake work can be scattered throughout a garage and can linger "around a garage long after a brake job is done and can be breathed in by everyone inside a garage." According to the publication, although lowering exposure lowers risk, "there is no known level of exposure to asbestos below which health effects do not occur." Asbestos can be carried on work clothing, and mesothelioma, which can be caused by "very low exposures to asbestos," was known to have occurred among brake mechanics, their wives, and their children.
¶ 19 Constance Hanna, Honeywell's corporate director of health services, testified the amount of asbestos a person can be exposed to before developing a disease varies. Hanna acknowledged the Occupational Safety and Health Administration (OSHA) placed an asbestos exposure limit at 0.1 fibers per cubic centimeter, but even at that level of exposure, people may still develop lung cancer and mesothelioma. Hanna could not provide a level below which all people can be exposed without someone becoming sick. She acknowledged a person does not have to work hands-on with an asbestos-containing product to develop asbestos disease, butrather, a person may be exposed as a bystander.
¶ 20 Although Hanna assumed mesothelioma was idiopathic, meaning doctors are unable to pinpoint the cause of the disease, she also testified she did not know of anything other than asbestos that could cause mesothelioma. Hanna reiterated she was not a cancer specialist or mesothelioma expert.
¶ 21 David Garabrant, who is board-certified in internal medicine, occupational medicine, and preventive medicine, testified as an expert witness on behalf of Honeywell. In 2004, Garabrant and his colleagues published a meta-analysis investigating whether people who do motor vehicle and brake repair work are at an increased risk for mesothelioma. Before trial, Garabrant reviewed (1) Dunham's medical records; (2) various depositions; (3) various expert reports from both the plaintiff and defense sides; (4) an "exposure notebook" containing such legal documents as the complaint and the answers to interrogatories; (5) Dunham's chest X-ray report, ultrasound reports, computer topography (CT) scan, and pathology reports; and (6) Dunham's employment records. Based on his review, Garabrant opined, to a reasonable degree of medical certainty, that Dunham's exposure to brake dust did...
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