Wehmeier v. UNR Industries, Inc.
| Decision Date | 09 May 1991 |
| Docket Number | Nos. 4-90-0361,4-90-0376 and 4-90-0381,s. 4-90-0361 |
| Citation | 213 Ill.App.3d 6,157 Ill.Dec. 251,572 N.E.2d 320 |
| Parties | , 157 Ill.Dec. 251, Prod.Liab.Rep. (CCH) P 12,863 John WEHMEIER; Helen Bratcher, Individually and as Administrator of the Estate of Ray Bratcher, Deceased; Evelyn Tynan, Individually and as Administrator of the Estate of William P. Tynan, Deceased, Plaintiffs-Appellees, v. UNR INDUSTRIES, INC., and Manville Corp. Asbestos Disease Compensation Fund, Defendants-Appellants (Billy L. Gray; Mae Gray; Hazel M. Cochran, Special Administrator for the Estate of William C. Cochran, Deceased; Hazel M. Cochran, Individually; Joyce Schultz, Individually and as Administrator of the Estate of Calvin P. Schultz, Deceased, Plaintiffs-Appellees, v. UNR Industries, Inc., and Manville Corp. Asbestos Disease Compensation Fund, Defendants-Appellants). John WEHMEIER; Helen Bratcher, Individually and as Administrator of the Estate of Ray Bratcher, Deceased; and Evelyn Tynan, Individually and as Administrator of the Estate of William P. Tynan, Deceased, Plaintiffs-Appellants, v. MANVILLE PERSONAL INJURY SETTLEMENT TRUST; UNR Industries, Inc.; and Charter Consolidated Limited, Defendants-Appellees. John D. SPICER; Gladys Spicer; Billy L. Gray; Mae Gray; Hazel M. Cochran, Special Administrator for the Estate of William C. Cochran, Deceased; Hazel M. Cochran, Individually; Joyce Schultz, Special Administrator of the Estate of Calvin P. Schultz, Deceased; Joyce Schultz; Juan Mendiola; Sarita Mendiola; Jarvis Long; Etta Long; Terry W. Grabill, Administrator of the Estate of Bernita Bragonier, Deceased, and Individually; Plaintiffs-Appellants, v. MANVILLE PERSONAL INJURY SETTLEMENT TRUST; UNARCO Industries, Inc.; Cape Industries Limited; Cape Asbestos Fibres, Ltd.; and EGNEP (Pty) Limited; Defendants-Appellees. Fourth District |
| Court | United States Appellate Court of Illinois |
Steven M. Hartmann, Jane W. Grover, Michael D. Freeborn, Freeborn & Peters, Chicago, Margaret S. Garvey, Freeborn & Peters, Denver, Colo., for Manville Corp. Asbestos Disease Compensation Fund. James Walker, Ltd., Bloomington, for John Wehmeier, et al. and John D. Spicer, et al.
Following a jury trial, judgments were entered against the defendant, the Manville Corporation Asbestos Disease Compensation Fund (Fund), and in favor of plaintiffs Wehmeier, Bratcher, Schultz, Cochran and Bragonier. Judgment was entered for the Fund against plaintiffs Gray and Tynan. The Fund raises the following issues as to the judgments for Wehmeier, Bratcher, Schultz, and Cochran: (1) whether plaintiffs proved asbestos sold by Manville was a proximate cause of their injuries and/or deaths; (2) whether the trial court erred in striking the Fund's defense that conduct of UNARCO Industries, Inc. (UNARCO), was a superseding cause of their injuries; (3) whether the trial court erred in allowing in evidence on plaintiff Wehmeier's increased risk of contracting cancer; (4) whether the trial court erred in allowing plaintiffs to call the treating physicians as expert witnesses in violation of Supreme Court Rule 220 (134 Ill.2d R. 220); (5) whether the trial court improperly restricted the Fund's smoking defense; (6) whether the trial court improperly allowed evidence of Manville's plant conditions and injuries to its workers; (7) whether the trial court erred in consolidating seven cases for a single trial; and (8) whether plaintiffs' counsel's questioning regarding settlement negotiations prejudiced the Fund's right to a fair trial. Gray and Tynan raise the following issues as to the judgments entered for the Fund: (1) whether it was error to allow the Fund to present the testimony of its examining physician Skillrud in violation of Supreme Court Rule 215(c) ( 134 Ill.2d R. 215(c)); (2) whether the trial court erred in permitting the Fund to submit opinion testimony from its expert, Skillrud, who was not disclosed as required by Supreme Court Rule 220; and (3) whether the trial court erred in permitting the Fund to offer opinion testimony from Dr. Fahey. For the reasons that follow, we reverse all the judgments and remand for a new trial.
Plaintiffs were at one time employed by UNARCO in Bloomington. Plaintiffs' cases against Johns-Manville Corporation and Johns-Manville Sales Corporation (Manville) sounding in negligence and products liability were consolidated for trial. Following Manville's reorganization in bankruptcy, the Fund was substituted as defendant for Manville.
The following judgments were entered against Manville
Wehmeier $593,054.33
Bratcher $196,652.00
Schultz $141,759.00
Cochran $264,499.00
Judgment was entered for Manville against Gray and Tynan. Judgment was entered in favor of Bragonier, but that claim was settled after trial.
At the beginning of the trial, the Fund admitted negligence and wilful and wanton conduct. The trial proceeded solely on the issues of proximate cause and damages.
Hazel Cochran testified her husband, Bill, worked for UNARCO for 11 to 12 years before quitting in 1963. Mrs. Cochran stated her husband's health began to deteriorate in the 1980s. Her husband was diagnosed with cancer in April 1989. On cross-examination, Mrs. Cochran stated her husband never talked about his work for UNARCO. Mrs. Cochran stated her husband had been a cigarette smoker for many years.
John Wehmeier, 58 years old at the time of trial, testified he worked at the UNARCO plant from 1951 to 1961. Wehmeier worked in the shipping and receiving department but his job took him all over the plant. Wehmeier testified asbestos blankets, ropes, and pipe covering were made at the UNARCO plant. Wehmeier stated the asbestos yarn, which is two inches thick, came in boxes. The boxes were unpacked and the contents delivered to a roving machine which held large spools. Once on the spools, the asbestos yarn came off like thread used on a sewing machine. The yarn produced dust.
Wehmeier described the UNARCO plant as one big room, long and narrow, like a basketball gymnasium. He stated if you looked at a light, you could see the dust in the air at the plant. There was dust on the floor and the tables, including the tables where the employees ate lunch.
Wehmeier stated the asbestos also came in burlap bags. This asbestos, which had a gray color, looked like rock before it was ground up. After the grinding, the asbestos looked fluffy. Wehmeier stated there were 10 different machines in the plant that worked with asbestos and each one gave off dust.
Wehmeier stated the bags of asbestos were delivered by boxcar to the plant. He picked up the bags by hand and loaded them onto a pallet for unloading by forklift in another part of the plant. Wehmeier stated there were windows near the ceiling of the plant. He recalled asbestos dust collected on the cross-beams on the inside of the outer walls of the plant.
Wehmeier recalled some of the asbestos in the plant came from Manville. Some asbestos from Manville came in on a spool and was used on the roving machine. Wehmeier stopped working in 1984 after he began to experience shortness of breath. Wehmeier admitted smoking cigarettes for 30 years.
On cross-examination, Wehmeier stated the primary product produced at the plant was pipe covering. He stated he did not know what type of asbestos was used in the manufacture of pipe covering. He recalled unloading two boxcars of asbestos fiber per day and the bags of asbestos had the name "Africa" on the bag. Wehmeier stated Manville asbestos came on a spool and had a white color while the Africa asbestos was gray. Wehmeier stated he unloaded boxcars two to three days a month for two to three hours at a time. Wehmeier recalled seeing dust and fibers come off the asbestos yarn and blankets as they were moved. Wehmeier saw dust produced when the asbestos was ground in the machine. Wehmeier stated after he delivered the asbestos to a machine in the plant, he immediately moved on to another area of the plant. Wehmeier stated he smoked 1 1/2 packs of cigarettes a day and he suffers from emphysema and bronchitis.
Helen Bratcher, administrator for the estate of her husband, Edward Ray Bratcher, testified her husband had worked for UNARCO before she met him from 1954 to 1957. Helen stated her husband got sick in 1978 and could no longer perform his job as a minister. On cross-examination, Helen stated her husband mentioned to her he had worked with Manville asbestos at the UNARCO plant. Helen also stated her husband smoked one pack of unfiltered cigarettes per day until his death in 1980.
Joyce Schultz, administrator for her husband Calvin's estate, testified he worked at the UNARCO plant in the late 1950s for 3 1/2 to 4 years. Joyce admitted her husband was a smoker. Joyce also stated her husband never told her he worked with any asbestos at the UNARCO plant.
Gray testified he worked at the UNARCO plant during 1962 and 1963. Gray began sawing hard board and was promoted to a plant supervisor on the third shift. He had a desk in the middle of the plant near the insulation department and the board department. Gray recalled asbestos yarn and raw asbestos was used in the insulation department but did not know where the asbestos came from. Gray stated he had been a cigarette smoker for 40 years.
Tynan worked at the UNARCO plant in the late 1950s. Tynan died in 1978 of cardiac arrhythmia. Tynan smoked a pack of cigarettes a day for 40 years before his death. There was no evidence presented that Tynan's death was caused by exposure to asbestos.
Herbert Abrams, a board-certified physician in preventive medicine, testified as an expert for plaintiffs. Abrams first began seeing and writing about the hazards of asbestos in 1948. Abrams identified asbestosis as a disease of the lungs caused by inhalation of asbestos fibers. Abrams explained that when asbestos dust is inhaled, the asbestos fibers go into the deepest part Abrams...
To continue reading
Request your trial
- Fowler v. Akzo Nobel Chems., Inc.
-
Rodriguez v. Glock, Inc., 96 C 3981.
... ... See Schultz, 222 Ill. App.3d at 540, 165 Ill.Dec. 56, 584 N.E.2d at 243; Wehmeier v. UNR Indus., Inc., 213 Ill.App.3d 6, 29, 157 Ill.Dec. 251, 572 N.E.2d 320, 335 (Ill.App.Ct.1991); Lindenmier v. City of Rockford, 156 Ill.App.3d ... ...
-
Potter v. Firestone Tire & Rubber Co.
...of occurring are denied as speculative. (See, e.g., id, at pp. 1204-1205; Wehmeier v. UNR Industries, Inc. (1991) 213 Ill.App.3d 6, 33-35, 157 Ill.Dec. 251, 269-270, 572 N.E.2d 320, 338-339 [hereafter Wehmeier ]; cf. Pollock, supra, 686 F.Supp. at pp. 491-492.)As indicated in footnote 8, an......
-
Thomas v. Mallett
... ... AMERICAN CYANAMID Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries, Inc., SCM Chemicals, Inc., Sherwin-Williams Co., ConAgra Grocery Products Co., ... products, but also of all generically similar products manufactured by its competitors." Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320, 336 (Ill. App. Ct. 1991) (quoting Blackston v. Shook & ... ...
-
Questions Calling for a Conclusion
...v. Osborn , 156 Ill. Dec. 708, 571 N.E.2d 492, 213 Ill. App.3d 134 (Ill. App. 3 Dist. 1991); Wehmeier v. UNR Industries, Inc ., 157 Ill. Dec. 251, 572 N.E.2d 320, 213 Ill. App.3d 6 (Ill. App. 4 Dist. 1991). The term “reasonable degree of medical certainty” should be memorized by every attor......
-
Questions calling for a conclusion
...v. Osborn , 156 Ill. Dec. 708, 571 N.E.2d 492, 213 Ill. App.3d 134 (Ill. App. 3 Dist. 1991); Wehmeier v. UNR Industries, Inc ., 157 Ill. Dec. 251, 572 N.E.2d 320, 213 Ill. App.3d 6 (Ill. App. 4 Dist. 1991). The term “reasonable degree of medical certainty” should be memorized by every attor......
-
Questions calling for a conclusion
...v. Osborn , 156 Ill. Dec. 708, 571 N.E.2d 492, 213 Ill. App.3d 134 (Ill. App. 3 Dist. 1991); Wehmeier v. UNR Industries, Inc ., 157 Ill. Dec. 251, 572 N.E.2d 320, 213 Ill. App.3d 6 (Ill. App. 4 Dist. 1991). The term “reasonable degree of medical certainty” should be memorized by every attor......
-
Questions Calling for a Conclusion
...v. Osborn , 156 Ill. Dec. 708, 571 N.E.2d 492, 213 Ill. App.3d 134 (Ill. App. 3 Dist. 1991); Wehmeier v. UNR Industries, Inc ., 157 Ill. Dec. 251, 572 N.E.2d 320, 213 Ill. App.3d 6 (Ill. App. 4 Dist. 1991). The term “reasonable degree of medical certainty” should be memorized by every attor......