Thacker v. UNR Industries, Inc., 72095

• Decision Date: 21 September 1992
• Docket Number: No. 72095,72095
• Citation: 177 Ill.Dec. 379,151 Ill.2d 343,603 N.E.2d 449
• Parties: , 177 Ill.Dec. 379, 61 USLW 2236, Prod.Liab.Rep. (CCH) P 13,290 Lois THACKER, Indiv. and as Adm'r of the Estate of Leslie Thacker, Deceased, Appellee, v. UNR INDUSTRIES, INC., et al. (Manville Corporation Asbestos Disease Compensation Fund, Appellant).
• Court: Illinois Supreme Court

Page 449

603 N.E.2d 449

151 Ill.2d 343, 177 Ill.Dec. 379, 61

USLW 2236,

Prod.Liab.Rep. (CCH) P 13,290

Lois THACKER, Indiv. and as Adm'r of the Estate of Leslie Thacker, Deceased, Appellee, v. UNR INDUSTRIES, INC., et al. (Manville Corporation Asbestos Disease Compensation Fund, Appellant).

No. 72095.

Supreme Court of Illinois.

Sept. 21, 1992.

Rehearing Denied Nov. 30, 1992.

Margaret S. Garvey, Freeborn & Peters, Chicago, for appellant.

Steven P. Sanders, Raymond R. Fournie and Thomas B. Weaver, Armstrong, Teasdale, Schlafly & Davis, St. Louis, Mo., for amicus curiae Owens-Corning Fiberglas.

Cooney and Conway, Chicago (Kathy Byrne, of counsel), for amicus curiae Illinois Trial Lawyers.

Justice CLARK delivered the opinion of the court:

On March 1, 1982, plaintiff, Lois Thacker, individually and as administrator of the estate of her deceased husband, brought suit in the circuit court of McLean County against Manville Corporation, Manville International Corporation, and others. Plaintiff sought damages for injuries to her decedent and for his death from cancer which she claimed he contracted while working at the Bloomington plant of Union Asbestos and Rubber Company (UNARCO).

Following a long delay resulting from the bankruptcy of the above-mentioned defendants and other related Manville entities, the Manville Personal Injury Settlement Trust (Trust) was created in the bankruptcy proceedings to assume the liabilities for asbestos-related personal injury claims against the Manville entities. The Trust was substituted as a party defendant for the Manville entities, and the case proceeded to a trial of the claims against the Trust. On August 24, 1989, following a jury trial, the circuit court entered judgment on jury verdicts in favor of plaintiff individually in the sum of $36,471.52 and as administrator in the sum of $244,359.19.

Although other claims in the case were pending at the time, the circuit court subsequently entered an order pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)), making the judgments on the plaintiff's verdicts appealable. Appeal was taken by the Manville Corporation Asbestos Disease Compensation Fund, successor to the Trust. For clarity sake we will refer to the Fund as defendant. Initially the appellate court reversed the circuit court, finding the defendant was entitled to judgment non obstante veredicto because plaintiff failed, as a matter of law, to prove asbestos sold by Manville entities was a proximate cause of the injury to, and death of, plaintiff's decedent. Plaintiff thereafter filed a petition for rehearing, which was allowed, and in a unanimous opinion the appellate court affirmed the circuit court, reversing its initial decision. (213 Ill.App.3d 38, 157 Ill.Dec. 272, 572 N.E.2d 341.) We granted defendant's leave to appeal (134 Ill.2d R. 315).

I

Most of the facts are not disputed and have been adequately set out by the appellate court opinion below. We repeat them here with slight modification only.

The decedent worked for UNARCO at its Bloomington plant from 1954 through 1962. All but the last three months of his tenure at the Bloomington plant were spent in the pipe-covering department, with the remainder spent in the plastics department. Testimony indicated that the plant consisted primarily of a large open area with a particularly high ceiling and no interior walls. One witness estimated the size of the facility as being 600 feet in length and 300 feet in width with a 95-foot-high ceiling.

The decedent died December 30, 1981, of lung cancer, but his death was hastened by the presence of asbestosis. He was a nonsmoker. After plaintiff's opening statement, defendant admitted that the decedent had died from exposure to asbestos. Further, defendant stipulated that the Manville entities knew in 1954 that asbestos fibers they were selling had caused asbestosis and cancer in people occupying employment similar to that of the decedent, but that no one from UNARCO or the Manville entities ever advised the employees at the Bloomington plant that breathing asbestos could be hazardous or that the risk of exposure could be reduced by taking appropriate safety precautions. Despite its admissions, the defendant argued to the jury that there was insufficient evidence to indicate that the decedent had been exposed to Manville asbestos and that nothing Manville did, therefore, could have been a proximate cause of the decedent's injuries.

During the decedent's tenure at the Bloomington plant, shipments of raw asbestos were ordered by UNARCO for use there. Plaintiff introduced evidence tending to show that the plant received at least 25 tons of asbestos from Manville entities in each of the years 1956, 1957 and 1958. Evidence also indicated that between 1950 and 1953, prior to the decedent's tenure at the plant, some 475 tons of raw asbestos had been ordered by the Bloomington plant from Manville entities. According to the plant manager, from 1956 to 1962, the plant received some 200 tons per month of asbestos from another manufacturer.

In a deposition taken before his death, decedent testified that his job included opening bags of asbestos of a kind not supplied by Manville. Moreover, he testified he did not recall seeing bags of asbestos of the type furnished by Manville either at his work station or elsewhere in the plant. The only witness who testified to seeing in the plant any bags of asbestos indicating that they came from Manville was Eugene Hastings. He testified that when Manville asbestos was handled it necessarily gave off dust. Hastings was only able to testify, however, that he saw the defendant's asbestos in the shipping and receiving area of the plant and not at decedent's work station.

The only medical testimony presented to the jury was that of the decedent's treating physician, Dr. Robert A. Conklin. He testified that the decedent was diagnosed as having both asbestosis and lung cancer. He also testified that when asbestos is handled, it releases microscopic fibers which float in the air and which may be inhaled into the lungs. With regard to the lung cancer, Dr. Conklin testified that the decedent's disease may have been caused by any one, or any group, of the fibers inhaled by the decedent. He also testified that the adverse effect of asbestos on the decedent's health was "cumulative."

The plaintiff submitted no evidence as to where the various departments in the UNARCO plant were located, where the decedent took his breaks or lunch, or whether he had any responsibilities away from his primary work sites. Testimony was introduced, however, indicating that asbestos of the same type as that supplied by Manville was used at the plant in various production areas. Also introduced was testimony from several UNARCO employees as to the high level of dust in the plant, and that dust in the plant freely circulated. Various UNARCO employees, including the decedent, testified that dust was continuously visible in the air of the plant when viewed in bright light. No expert testimony was admitted, however, with regard to the tendency of asbestos dust to drift in the air.

At the close of the trial the defendant submitted to the jury a special interrogatory asking, "Do you find that Leslie Thacker was exposed to asbestos fibers supplied by the Johns-Manville Corporations to the plant operated by UNARCO in Bloomington, Illinois, which proximately caused his disease and death?" The jury returned an affirmative answer to the special interrogatory along with its verdict for the plaintiff.

This appeal seeks to raise two distinct issues: (1) whether defendant was entitled to judgment n.o.v. because plaintiff failed to produce sufficient evidence of exposure to defendant's asbestos; and (2) whether defendant's tendered jury instructions were improperly rejected by the trial court. Because we find that just the first of these issues was properly preserved, we address only this question.

II

Plaintiff initially argues that defendant has waived each of the issues now raised by failing to properly preserve them for appeal. She points to the defendant's post-trial motion which simply contradicted the jury's special finding, stating, "Judgment notwithstanding the verdict should be entered for the defendant because the plaintiff failed to introduce sufficient evidence that Mr. Thacker was exposed to asbestos sold or distributed by Johns-Manville, or that any exposure to Johns-Mansville asbestos proximately caused his disease and death."

Plaintiff notes that several of this court's opinions have required a party who wishes to preserve the right to appeal a denial of judgment n.o.v., in opposition to a jury's special finding of fact, to object by specific reference at the close of trial or in a post-trial motion to the fact that the jury has made a special finding. (Taake v. Eichhorst (1931), 344 Ill. 508, 509, 176 N.E. 765; Brimie v. Belden Manufacturing Co. (1919), 287 Ill. 11, 16-17, 122 N.E. 75.) Although the defendant's post-trial motion argued that the trial judge's denial of its motion for judgment n.o.v. was error, plaintiff points out that it failed to indicate that the jury had made a special finding as required by Taake.

This court specifically addressed the issue raised by the plaintiff in Wozniak v. Segal (1974), 56 Ill.2d 457, 308 N.E.2d 611, where it was noted that the rule of Taake, while binding upon the parties, does not limit the power of a reviewing court to address the substance of the issues raised. As Wozniak states, "It is one thing to say, as many opinions of this court and the appellate court have said, that a litigant is 'concluded' or 'conclusively bound' by some action he has taken or failed to take. It is a very different thing to say that a court is barred from reaching a just result by that action or inaction." (Wozniak, 56 Ill.2d at 460, 308 N.E.2d 611.) Wozniak makes clear that Illinois reviewing courts have the power to...