McKinney v. Hobart Bros. Co.

Decision Date05 September 2018
Docket NumberNOS. 4-17-0333,S. 4-17-0333
Parties Charles MCKINNEY, Plaintiff-Appellee, v. HOBART BROTHERS COMPANY, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Jeffrey S. Hebrank and Meghan C. Kane, of HeplerBroom LLC, of Edwardsville, and Michael T. Reagan, of Ottawa, for appellant.

Chip Corwin and James Wylder, of Wylder Corwin Kelly, LLP, of Bloomington, for appellee.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Charles McKinney, has mesothelioma

, a disease he contracted by inhaling asbestos fibers. He brought an action against defendant, Hobart Brothers Company, for failing to warn him of the dangerousness of asbestos-containing welding rods that defendant had manufactured and to which plaintiff came in close proximity for eight months in the early 1960s. A jury returned a verdict against defendant and in his favor. Defendant appeals, arguing that the trial court should have granted its motion for judgment notwithstanding the verdict.

¶ 2 For all that appears in the record, the industry to which defendant belonged had no knowledge in the 1960s that welding rods could release asbestos fibers. Defendant could not have owed plaintiff a duty to warn of a hazard of which defendant and the industry were unaware. Because of the lack of duty, the trial court should have granted defendant's motion for judgment notwithstanding the verdict. Another reason why the court should have granted the motion was that the record contains no evidence that the welding rods were a substantial cause of plaintiff's mesothelioma

. Therefore, we reverse the trial court's judgment.

¶ 3 I. BACKGROUND

¶ 4 A. The Counts Against Defendant

¶ 5 On February 21, 2012, plaintiff brought this lawsuit against various defendants who are not parties to this appeal. He alleged that insulation and brakes the defendants had manufactured, distributed, or supplied had released asbestos fibers and had caused him to contract mesothelioma

. Initially, defendant was not a party to this lawsuit.

¶ 6 On April 25, 2013, in two counts that plaintiff added to his complaint with the trial court's permission, he alleged that defendant, too, had caused his mesothelioma

by willfully and wantonly, or at least negligently, failing to warn of the dangerousness of its product. Although, in these counts against defendant, plaintiff did not identify the allegedly dangerous product, it soon became evident that he meant Hobart 6010 welding stick electrodes, which defendant had manufactured for use in shielded metal arc welding.

¶ 7 B. A Brief Description of Defendant's Welding Rods

¶ 8 Defendant manufactures welding rods, which, when introduced into an electrical arc, make the molten material necessary to bind two pieces of base metal together. The welding rods are made up of two parts: the steel core and the surrounding flux. Thirty years ago, the flux of defendant's "6010" rods contained chrysotile asbestos, a type of asbestos that can cause mesothelioma

many years after one inhales it.

¶ 9 C. DuPont's Testimony

¶ 10 Defendant's retained expert was John DuPont, a professor of materials science and engineering. The substance of his testimony was as follows.

¶ 11 The purpose of the flux was to protect the weld when it was still in a liquid state and to keep it clean. Keeping the molten weld clean was important because liquids could dissolve gases, which would weaken the weld. The flux burned up in the electrical arc and, in so doing, pushed the atmospheric gases out of the way, forming "a protective blanket of an inner atmosphere over the liquid pool." This was where the chrysotile asbestos in the flux served a purpose. The chrysotile asbestos was about 13% water, and as the water was released when the asbestos burned, the steam served as an "arc force," providing "deep penetration" toward the molten weld.

¶ 12 DuPont opined that, for two reasons, it was "physically impossible" for respirable asbestos fibers to have escaped from defendant's welding rods.

¶ 13 First, the asbestos fibers were encapsulated. They were chemically bound to, and completely covered by, the sodium silicate in the flux. Even if particles broke off the flux when the welding rods were removed from a box, inserted into a Stinger (an electrode holder), or stepped on, they would be particles of sodium silicate encapsulating asbestos—and none of these particles would be small enough to inhale.

¶ 14 Second, the welding arc reached a temperature of 10,000 degrees Fahrenheit, and the welding pool was at least 2700 degrees Fahrenheit. Because asbestos burned at 1500 degrees Fahrenheit, no asbestos could have been released from the welding fume.

¶ 15 D. Frank's Testimony

¶ 16 Arthur L. Frank, a physician and professor of occupational health, was plaintiff's retained expert. Because Frank, by his own admission, was not a materials scientist, industrial hygienist, engineer, or mineralogist and had never performed, nor was qualified to perform, any fiber testing on welding rods, defendant disputed Frank's qualifications to opine on the capability of defendant's welding rods to release respirable asbestos fibers. The trial court, however, found Frank to be sufficiently qualified and admitted his evidence deposition.

¶ 17 In his evidence deposition, Frank gave an overview of literature from the 1940s onward that warned of the health hazards of asbestos. He believed that, for two reasons, defendant's welding rods were capable of giving off respirable, cancer-causing asbestos fibers. First, in his decades of experience with asbestos, Frank had never known of an asbestos-containing product that, if "properly manipulated," would not give off asbestos fibers. Second, Frank testified: "There's the work of Dr. Dement with fibers being released from welding rods."

¶ 18 Frank expressed the following opinion:

"[T]o the extent that [plaintiff] worked with Hobart 6010 asbestos-containing rods or that co-workers were using them, having had prior experience with them, knowing that they give up asbestos fibers, that the exposures that he had to asbestos from those rods would have[,] in my opinion[,] been a substantial contributing cause to his mesothelioma

."

¶ 19 Frank conceded that the fume would have had no asbestos in it. He testified, however:

"I'm not aware of any product that contained asbestos that[,] if manipulated[,] could not give off asbestos fibers. So[,] you run from what's called [‘]friable[’] materials that can be easily crushed by hand and release dust, so some insulation materials were like that, or a bag of raw asbestos would certainly be considered friable. But then[,] at the other end, you have asbestos cement pipe. You would think that a cement pipe would keep fibers in place. But if you saw or cut or bevel the edges of that pipe, you will give off fibers, so anything in between is possible."
¶ 20 E. Plaintiff's Impeachment of Hensley and the Admission of the Impeaching Material as Substantive Evidence

¶ 21 Timothy Hensley was defendant's corporate representative. Plaintiff's attorney cross-examined Hensley about reports by a research scientist, Steven Compton, and other nontestifying third-party experts regarding their fiber testing of welding rods—even though Hensley had never mentioned these reports on direct examination. (We will follow plaintiff's lead by calling these third-party reports "the Compton studies," even though, strictly speaking, they were not all by Compton.) Defendant's attorney objected on the ground of hearsay and a lack of foundation. In response to the objection, plaintiff's attorney assured the trial court that he was merely impeaching Hensley and that, "[a]s far as the studies actually going to the jury, they won't." The court overruled the objection, and plaintiff's attorney continued cross-examining Hensley on the Compton studies.

¶ 22 On redirect examination, defendant's attorney questioned Hensley in more detail about the Compton studies, with the intention of exposing their flaws and unreliability. During his redirect examination, he displayed pages from the Compton studies on a large screen, an "Elmo," so the jury could follow along.

¶ 23 Because defendant's attorney had displayed or "published" the Compton studies to the jury on redirect examination, the trial court agreed with plaintiff's attorney that they should be admitted in evidence and should be included in the jury folder, which went back to the jury during its deliberations.

¶ 24 F. Plaintiff's Testimony

¶ 25 For eight months in 1962 and 1963, plaintiff worked at Portable Elevator, in Bloomington, Illinois. For seven of those eight months, his job was spot-welding, using an acetylene torch and bronze brazing rods. In addition to employing torch welders, such as plaintiff, Portable Elevator employed stick or arc welders, who used Hobart 6010 welding rods—all of which contained asbestos before 1979.

¶ 26 Plaintiff worked on the second floor, and the stick welders worked on a grated mezzanine, above, which was accessed by an open, wooden stairway. The stick welders' used welding rods—the stubs—would fall through the grated mezzanine floor, onto the second floor, where defendant worked. The workplace was dirty.

¶ 27 Each day at work, plaintiff took two 15-minute breaks in the break room, which was upstairs, on the mezzanine. To get to the break room, he had to climb the steps and walk by the stick welders, over the mezzanine floor littered with stubs. The break room had no door. It was just an open space, with a picnic table, where workers could sit.

¶ 28 When walking by the stick welders, defendant saw boxes of welding rods. The boxes had "HOBART" and "6010" on them. He did not know, at the time, that the welding rods contained asbestos.

¶ 29 G. Plaintiff's Exposure to Asbestos as a Mechanic

¶ 30 For over 40 years, plaintiff was an automobile mechanic, and, in that occupation, he worked on brakes that contained...

To continue reading

Request your trial
2 cases
  • Daniels v. Arvinmeritor, Inc.
    • United States
    • United States Appellate Court of Illinois
    • 19 Diciembre 2019
    ...jury instruction No. 6 on the state of the art. John Crane maintains that the recent case of McKinney v. Hobart Brothers Co. , 2018 IL App (4th) 170333, 430 Ill.Dec. 940, 127 N.E.3d 176, explains that in an asbestos case the existence of a duty to warn depends on whether, at the time of the......
  • Krumwiede v. Tremco, Inc.
    • United States
    • United States Appellate Court of Illinois
    • 21 Enero 2020
    ...the subject was based on unsubstantiated speculation. Tremco cites this court's recent decision in McKinney v. Hobart Brothers Co. , 2018 IL App (4th) 170333, 430 Ill.Dec. 940, 127 N.E.3d 176, to support its argument.¶ 56 In McKinney , the plaintiff alleged he developed mesothelioma after i......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT