Tragarz v. Keene Corp.

• Citation: 980 F.2d 411
• Decision Date: 18 February 1993
• Docket Number: 91-2109,Nos. 91-2108,s. 91-2108
• Parties: , Prod.Liab.Rep. (CCH) P 13,352 Grace TRAGARZ, individually and as Special Administrator of the Estate of Henry Tragarz, deceased, Plaintiff-Appellee, v. KEENE CORPORATION, individually and as successor-in-interest of the Baldwin-Ehret-Hill Company, and Owens-Corning Fiberglas Corporation, a Delaware Corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 411

980 F.2d 411

24 Fed.R.Serv.3d 176, Prod.Liab.Rep. (CCH) P 13,352

Grace TRAGARZ, individually and as Special Administrator of the Estate of Henry Tragarz, deceased, Plaintiff-Appellee, v. KEENE CORPORATION, individually and as successor-in-interest of the Baldwin-Ehret-Hill Company, and Owens-Corning Fiberglas Corporation, a Delaware Corporation Defendants-Appellants.

Nos. 91-2108, 91-2109.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 15, 1992.

Decided Nov. 6, 1992.

Rehearing and Rehearing In Banc

Denied Feb. 18, 1993.

Timothy E. Eble (argued), Ness, Motley, Loadholt, Richardson & Poole, Barnwell, S.C., Kathy Byrne, James T. Newman, Kevin J. Conway (argued), Cooney & Conway, Terrence M. Johnson, Chicago, Ill., for plaintiff-appellee.

Andrew J. Boling, Daniel J. Cheely, Paul B. O'Flaherty, Jr., John Krivicich, Baker & McKenzie, Barbara E. Hermansen (argued), Catherine Masters Epstein, Sam V. Menegas, Robert H. Riley, Paul A. Scrudato, Ann Rae Heitland, Schiff, Hardin & Waite, Chicago, Ill., for defendants-appellants in No. 91-2108.

M. Jayne Rizzo, Carolyn Quinn, John Dames (argued), Julian Solotorovsky, David B. Sudzus, Kelley, Drye & Warren, Chicago, Ill., for defendant-appellant in No. 91-2109.

Before WOOD, Jr., ^* and COFFEY, Circuit Judges, and CURRAN, District Judge. ^**

HARLINGTON WOOD, Jr., Circuit Judge.

This negligence action against manufacturers of asbestos insulation products raises challenging questions regarding cause in fact and comparative fault. And in particular contention in this regard are two issues: whether there is sufficient evidence that each of the defendant's asbestos products were the cause in fact of the injured party's disease, and whether the court should have admitted evidence of the injured party's exposure to other products for purposes of demonstrating cause in fact or for purposes of demonstrating comparative fault. The question whether exposure to other products was admissible to show comparative fault is contingent on whether this case qualifies for a comparative fault analysis under Ill.Rev.Stat., ch. 110, p 2-1117. To decide this we must decide, as a matter of first impression, whether the release of large amounts of asbestos into the internal, workplace environment excludes this case from a comparative fault analysis under Ill.Rev.Stat., ch. 110, p 2-1118.

I.

This appeal is based upon a negligence action originally filed by Henry and Grace Tragarz in 1988, shortly after Henry Tragarz was diagnosed as suffering from malignant pleural mesothelioma, a cancer that is extremely rare among the general population but not as rare among those occupationally exposed to asbestos fibers. Expert testimony in this case indicated that as many as seventy to eighty percent of mesothelioma cases are caused by the inhalation of asbestos. The plaintiffs alleged in this action that Henry Tragarz's disease was caused by his exposure to asbestos during his career as a sheet metal worker. Henry Tragarz died as a result of this disease on June 28, 1989, at age sixty-one. His widow, Grace Tragarz, was appointed special administrator, and the suit was amended to reflect wrongful death and survival claims.

Twenty-five defendants were originally named in the lawsuit. On August 2, 1989, the trial court granted defendants leave to file third-party complaints. Defendant Owens-Corning Fiberglas immediately filed a third-party complaint against the Manville Asbestos Disease Compensation Fund, and defendant Flintkote filed a cross-claim the following April. No other cross-claims or third-party complaints were filed.

Defendants American Energy, H.K. Porter, Asbestospray, and H & A Construction were voluntarily dismissed. Summary judgment was entered in favor of defendants Owens-Illinois, AC & S, Armstrong, Dana, GAF, National Gypsum, TAF Ltd., T & N Ltd., and T & N P/C on the basis of insufficient evidence of Mr. Tragarz's exposure to their products. Defendants Fibreboard, Eagle Picher, Flintkote, Garlock, Babcock & Wilcox, W.R. Grace, and Combustion Engineering settled. Defendants Celotex and Raymark sought bankruptcy. Manville was severed from the action shortly before trial. As such, the only defendants remaining at the time of trial were Keene Corporation ("Keene") and Owens-Corning Fiberglas Corporation ("OCF"). Both defendants denied liability, denied that Mr. Tragarz had been exposed to their products, denied that he had mesothelioma, and denied that there was any link between Mr. Tragarz's exposure to asbestos and his death.

The plaintiff put on evidence with regard to Mr. Tragarz's injuries, the family's loss as a result of his death, the defendants' knowledge of the dangers of asbestos, and the defendants' failure to notify Mr. Tragarz of these known dangers. However, we will summarize only the evidence relevant to the issues discussed in this opinion.

As we have already indicated, Mr. Tragarz was a sheet metal worker. As a sheet metal worker, Mr. Tragarz installed commercial duct work, blow pipe, and fans for heat ventilation or air conditioning. The testimony at trial indicated that as a sheet metal worker Mr. Tragarz often worked alongside insulators and pipefitters who installed and cut asbestos containing products. Moreover, Mr. Tragarz's deposition testimony indicates that on occasion Mr. Tragarz installed asbestos containing insulation.

The evidence presented to the jury on the issue of Mr. Tragarz's exposure to the defendants' products consisted of Mr. Tragarz's own deposition testimony; the live testimony of his usual partner, Frank Batka; a co-worker, Ed Severa; and an insulation worker, Mike Lavin, who worked at the Chicago Civic Center construction site.

Mr. Tragarz identified several job sites (Illinois Masonic Hospital, Witco Chemical, DePaul University, and the Chicago Civic Center) at which pipefitters or insulation workers using asbestos products were present. Mr. Tragarz specifically testified that he remembered seeing Kaylo, an OCF asbestos insulation product, while working as a sheet metal worker. Indeed, Mr. Tragarz testified that he remembered working on projects where pipefitters would be working ahead of him and the other sheet metal workers. He recalled the pipefitters taking asbestos pipecovering out of a Kaylo box and putting it around the pipes. He also remembers cutting this Kaylo pipecovering on occasion. Mr. Tragarz could not remember any specific job sites where he cut Kaylo, but he did remember cutting Kaylo "off and on, all over."

Frank Batka testified that he worked with Mr. Tragarz about ninety percent of the time over a period of twenty years. Mr. Batka indicated that insulators were also working at the majority of the jobs from the mid-1960s through the early 1970s. Mr. Batka identified a photograph of Kaylo as a product used within six to eight feet of Mr. Tragarz. Mr. Batka further testified that he could see the dust from Kaylo land on Mr. Tragarz. Mr. Batka, however, could not remember any specific job sites where he saw insulators install Kaylo products. Nonetheless, Mr. Batka did say that he saw insulators use Kaylo products in the mid-1960s through the mid-1970s. Although Mr. Batka said it would be difficult to approximate how many times he saw Kaylo on the sites during this nearly ten-year period, when asked if he saw Kaylo more than once, Mr. Batka responded, "Oh yes, more than one, yes."

Mr. Batka also identified Thermasil asbestos block, a product manufactured by Baldwin-Ehret-Hill, a predecessor company of Keene. Mr. Batka again said that this product was used within six to eight feet of Mr. Tragarz and that it created dust when it was cut and applied. Mr. Batka testified that he saw this product on sites in the early 1960s through the early 1970s. Mr. Batka also testified that on a few occasions he and Mr. Tragarz would cut and apply the product themselves. Mr. Batka did not testify as to how often or at which sites workers were dealing with Thermasil.

Edward Severa, who worked with Mr. Tragarz in the 1960s and early 1970s, also testified at trial. Mr. Severa indicated that he worked off and on with Mr. Tragarz for a period of about twenty years. Mr. Severa named three specific sites where he, Mr. Tragarz, and insulation workers all worked together. In describing these jobs, Mr. Severa indicated that the sheet metal workers and the insulation workers worked side-by-side. Mr. Severa stated that the insulation workers were above, below, and next to the sheet metal workers. And Mr. Severa testified that the insulation workers would cut the asbestos causing dust. He said this asbestos dust got on himself and Mr. Tragarz.

Although Mr. Severa identified three sites where he worked with Mr. Tragarz and insulation workers, Mr. Severa could not remember which insulation products were used at these sites. Mr. Severa did testify, however, that he and Mr. Tragarz worked on sites together with insulators who were cutting and installing Kaylo. Moreover, Mr. Severa testified that dust from Kaylo landed on Mr. Tragarz. Mr. Severa could not name specific sites where this occurred, but he did state that he saw Kaylo at the majority of sites he worked at from about the mid-1960s onward.

Mr. Lavin, an insulator, also testified at trial. Mr. Lavin described how the insulators sawed, chiseled, gouged, and installed asbestos insulation, and he explained that these activities caused substantial amounts of asbestos dust to be released into the air. Mr. Lavin testified that most of the insulation work was done in the ceiling around the ducts and pipes. And he testified that the asbestos dust created from the insulation activities would stay in the air for some period of time and eventually most of it would land on the floor. Once on the floor, the laborers would sweep up the dust causing it to reenter the air.

Mr. Lavin testified that the sheet metal workers worked alongside the insulators. On cross-examination Mr....