Nolan v. Weil-McLain

JUSTICE KILBRIDE, dissenting:

Although I agree with the majority’s conclusion that it was error to exclude evidence of the decedent’s other workplace asbestos exposures, I disagree that the error in this case requires a new trial. I believe the error was harmless because the evidence admitted at trial was sufficient to apprise the jury of Clarence’s repeated exposure to other sources of workplace asbestos and to provide sufficient grounds for Weil-McLain’s sole proximate cause defense. Indeed, the trial judge agreed that sufficient evidence was admitted to establish another source as the sole proximate cause of Clarence’s mesothelioma when he instructed the jury on the sole proximate cause defense, over Nolan’s objection. Thus, in my view, the case need not be remanded to the circuit court for a new trial.

Before this court, Weil-McLain argues that the exclusion of other-exposure evidence was not harmless because the ruling precluded the admission of detailed evidence about Clarence’s other exposures to workplace asbestos, allegedly forcing the jury to decide the proximate cause issue without sufficient evidence. Weil-McLain specifically cites the evidence it claims it was improperly barred from presenting: (1) Clarence’s exposure to other sources of asbestos; (2) his inhalation of dust generated when other workers installed pipe covering in a Quaker Oats plant where he worked; (3) a statement by Nolan’s expert, Dr. Eugene Mark, that Clarence’s exposure to pipe covering and pipe insulation not made, sold, or distributed by Weil-McLain was “a significant contributing factor in the development of his” disease; and (4) a conclusion by defense expert Dr. Robert Sawyer that Clarence’s mesothelioma was caused by amphibole fibers from thermal system insulation not made, sold, or distributed by Weil-McLain.

After reviewing the voluminous and highly detailed record from the parties’ two-week trial, I conclude that sufficient evidence was adduced, if believed by the jury, to allow it to find that Clarence’s disease was caused solely by his exposure to asbestos from non-Weil-McLain products. Despite the trial court’s ruling purportedly excluding all other-exposure evidence, the jury heard a multitude of varied references to his repeated exposure to other, more hazardous, forms of asbestos from other products in addition to his relatively minor exposure to the far less dangerous chrysotile asbestos in Weil-McLain’s boilers.

Some of this evidence came from Clarence’s testimony in a videotaped evidence deposition. He admitted he had installed only 20 to 25 Weil-McLain boilers during his lifetime. Moreover, he stated he had worked not only as a pipefitter but also as an apprentice mechanic and an apprentice plumber and had performed millwright work, plumbing, pipefitting and boiler installation and repair during his 38-year career. The jury heard evidence that Clarence had been exposed to asbestos pipe covering when Clarence noted that he never saw an asbestos warning on any product, including pipe covering, while he was working. Based on this admission, Weil-McLain argued to the trial court that this statement opened the door to the admission of additional other-exposure evidence. The circuit court disagreed, concluding that specific introduction of that evidence was unnecessary because “it’s getting in anyway to a certain extent.” In the trial court’s view, “any intelligent jury [would have] already figured out [that Clarence had] been exposed to all kinds of asbestos and all kinds of circumstances” based on the testimony about his work and job history. The circuit court did, however, allow Weil-McLain to point out that it did not make pipe covering and to highlight that evidence during closing argument because Clarence had specifically mentioned his exposure to asbestos pipe covering in his deposition.

Clarence’s son, Randall, also testified. He told the jury that he and his father performed pipe-fitting work together at a Quaker Oats plant for 13 years and that this work took about 75% of their time. None of that work involved Weil-McLain boilers. The pair only sporadically performed outside boiler work, including some work on Weil-McLain boilers. Randall confirmed that Clarence worked on a total of only 20 to 25 Weil-McLain boilers.

Randall also testified that his father had previously filed a lawsuit alleging Clarence had developed another asbestos-related disease due to his exposure to workplace asbestos. Defense counsel previously noted the same lawsuit in his opening statement. Moreover, at the close of evidence the trial court instructed the jury to take judicial notice that Weil-McLain was not named as a defendant in that earlier case. Defense counsel took advantage of the favorable nature of that instruction, emphasizing it during closing argument and specifically asking the jury to consider why Weil-McLain had not been named as a defendant. Contrary to the majority’s speculation that the trial court’s reference to the earlier lawsuit may have harmed Weil-McLain’s case (233 Ill. 2d at 447), defense counsel took the opportunity to use Clarence’s failure to name Weil-McLain to its advantage by specially highlighting it to the jury rather than attempting to hide or minimize its impact. After overtly using this point to support its position in this case, Weil-McLain cannot now successfully argue that the same evidence undermined its defense.

Defense counsel’s closing argument also specifically noted evidence that Clarence worked on the defendant’s boilers only about 25 days out of his nearly 40-year career, reminding the jury that he had many other work experiences as well. Certainly, by the end of trial the jury was well aware, as the trial court noted, that Clarence spent the vast majority of his time working around nonWeil-McLain products, including asbestos-containing pipe covering and that he had “been exposed to all kinds of asbestos and all kinds of circumstances.” Defense counsel again underscored this point during closing argument by asking the jury to consider what Clarence had been doing during the majority of his work life, when he was not repairing Weil-McLain boilers.

Details of Clarence’s other asbestos exposure further were revealed by expert testimony from a number of witnesses. One of Nolan’s experts, William Ewing, was an industrial hygienist who had been a consultant for the United States Public Health Service. Ewing stated that chrysotile fiber makes up 95% of the asbestos used in the United States and that Clarence received significant asbestos exposure from performing boiler work in general. Ewing also reiterated to the jury that Clarence had worked in many jobs, including plumbing, pipefitting, millwright work, and boiler repair.

Before cross-examining Ewing, Weil-McLain asked for permission to refer to Clarence’s other asbestos exposures, asserting that Ewing’s testimony opened the door when he noted that Clarence had not worked exclusively as a pipefitter, but had, in fact, worked in a number of different jobs. The trial court permitted Weil-McLain to “test [Ewing’s] expertise *** in terms of the nature of the work and the work experience,” including the type of materials involved. During cross-examination of Ewing, Weil-McLain firmly established that Clarence performed pipefitting, plumbing, millwright, and boiler repair work. Ewing explained that Clarence likely would have used asbestos-containing thermal system insulation, gaskets, valve packing, seals, and various cements, in addition to boilers and boiler components, in those jobs. Ewing added that the other work could create significant exposure to asbestos from pipe insulation or block insulation, providing more evidence that Clarence was exposed to dangerous levels of asbestos from multiple sources unrelated to Weil-McLain boilers.

Testifying for Weil-McLain, Frederick Boelter, a licensed professional engineer and certified industrial hygienist who had formerly been an OSHA compliance officer, built on Ewing’s testimony. Boelter showed the jury a piece of block insulation that contained asbestos, including amosite, a more hazardous type of fiber, and noted that pipefitters often encountered asbestos-containing block insulation while working alongside insulators. He explained that it was “not infrequent that pipefitters and insulators might be working in the same area, but the pipefitter would go first on a new construction installing the pipe systems, the insulators would follow to install the insulation, but the pipefitters would frequently remove insulation, perhaps would reapply insulation if it were a small job.”

Boelter also testified about his simulations of Clarence’s work on Weil-McLain’s boilers both in a controlled test environment and in a house. He performed studies on four Weil-McLain boilers, performing “the 3 fundamental activities that involve a boiler; installation, repair or removal.” In every case, the airborne asbestos fibers generated were within the limits set by OSHA. He believed the actual asbestos levels would likely have been even lower in a ventilated workplace. Boelter tested the asbestos released from the boilers and determined that the Weil-McLain components were pure chrysotile. After calculating the effect of installing 600 Weil-McLain boilers over a 20-year period, he told the jury that the cumulative asbestos exposure would be “tens of times lower” than the exposure received by simply breathing ordinary air over an average person’s lifetime. The jury already knew that Clarence had worked on Weil-McLain boilers only 20 to 25 times, not 600 times. Boelter concluded that Weil-McLain boilers did not create a risk of any asbestos-related disease.

Another of Nolan’s experts, Dr. Richard Lemen, an epidemiologist, former Assistant Surgeon General of the United States, and former acting director of NIOSH, acknowledged considerable scientific disagreement over the ability of chrysotile fibers to cause mesothelioma. He admitted that nearly all legitimate scientists studying asbestos agree that, on a dose-for-dose basis, chrysotile is less capable than other types of asbestos fiber to cause the disease. Thus, larger exposures to chrysotile fiber are necessary to develop the disease.

On cross-examination, Dr. Lemen acknowledged that Clarence described himself as a pipefitter and admitted that he had described pipefitters and plumbers as

“people who put insulation around pipes. Some people call them insulators. *** Some people call them pipefitters. But oftentimes what we have seen is that *** the pipefitters do the same type of work as what some might call an insulator. That they do work around pipes, that they have to cut through the insulation. It may be that an insulator is put on to do their work as a pipefitter.”

Dr. Lemen confirmed that pipefitters also worked with thermal insulation, again estabhshing that Clarence had been exposed to asbestos from thermal insulation when he was not working on Weil-McLain boilers.

When asked whether Clarence performed any of the work included in his definition of a pipefitter, Dr. Lemen responded, “[i]n relationship to the boilers, no.” Nolan’s counsel objected when defense counsel asked “[i]n relationship to others?” and the circuit court sustained the objection. Nonetheless, Dr. Lemen’s original response reminded the jury that Clarence had performed many types of pipefitting work beside repairing and replacing Weil-McLain boilers. Thus, even though the trial court did not admit evidence that Clarence specifically inhaled dust from the installation of pipe covering when he worked at Quaker Oats, Dr. Lemen’s testimony established that pipefitters were commonly exposed in the workplace to the more dangerous types of asbestos found in pipe covering and other thermal insulation.

Dr. Lemen also explained to the jury that thermal insulation contained high levels of amphibole asbestos fibers and that “for pipe covering and a lot of different insulation products, amosite and crocidolite were the choice type of asbestos to use.” Dr. Lemen admitted that amphibole asbestos fibers, such as amosite and crocidolite, were far more potent than chrysotile fibers. This testimony distinguished more dangerous pipe covering materials from the asbestos in the Weil-McLain boilers found by Boelter to contain only nonamphibole chrysotile.

Additionally, the defense presented extensive expert testimony supporting its claims that chrysotile fibers were incapable of causing mesothelioma and that the amount of asbestos released from Weil-McLain boilers, as well as the overall dose received during Clarence’s limited exposure to them, was too low to cause the disease. Paul Schuelke, Weil-McLain’s director of product compliance, testified about the health effect from asbestos exposure while working on Weil-McLain boilers, stating that none of the company’s workers, who routinely assembled the boilers, had ever developed an asbestos-related disease such as mesothelioma. During Weil-McLain’s case-in-chief, Schuelke testified that “thermal system insulation” was not included in any Weil-McLain boilers, but he stated he had observed thermal system insulation on building pipes, leading to the inference that Clarence’s other pipefitting work exposed him to the more dangerous amphibole asbestos found in thermal system insulation and pipe covering.

Nolan objected when Weil-McLain attempted to question Schuelke about the boiler industry’s custom and practice in using asbestos components during the 1950s, arguing that the questions were an attempt to circumvent the earlier ruling barring the admission of other-exposure evidence. Although the trial court agreed to allow the evidence only for the limited purpose of establishing duty, Nolan declined the court’s offer to give the jury a limiting instruction, thus permitting the jury to use that testimony to establish other asbestos exposures.

In addition, Schuelke undermined Randall Nolan’s testimony about the work he and his father allegedly performed on Weil-McLain boilers. Randall testified that he and his father had worked on Weil-McLain boilers using both air cell insulation and asbestos rope. Schuelke told the jury that Weil-McLain boilers never required the simultaneous use of those components. Accordingly, any testimony suggesting that Clarence worked on a boiler using both products meant that “[t]hat boiler was not a Weil-McLain product.” Schuelke further impeached Randall’s recollection of replacing damaged sections of a Weil-McLain boiler by agreeing that, “if somebody describes that they had to take the entire section out to get to *** one of the broken sections” it would be “a misidentification of a Weil-McLain boiler.” Schuelke similarly refuted Randall’s claim that Clarence handled air cell insulation while assembling and disassembling Weil-McLain boilers, explaining the location of the air cell insulation in Weil-McLain boiler jackets prevented such contact.

In arguing that the exclusion of the other-exposure evidence requires a new trial, Weil-McLain also cites the exclusion of a statement by Dr. Eugene Mark, a pathologist at Massachusetts General Hospital, part of Harvard Medical School. In that statement, Dr. Mark concluded that Clarence’s exposure to non-Weil-McLain pipe covering and pipe insulation was “a significant contributing factor in the development of his” disease. The plain language of Dr. Mark’s statement, however, undermines Weil-McLain’s sole proximate cause defense.

By concluding that Clarence’s exposure to pipe covering and pipe insulation was a “significant contributing factor,” but not the sole factor, in causing his mesothelioma, Dr. Mark creates a strong inference that other factors, possibly even his exposure to asbestos from Weil-McLain boilers, also “contributed” to his disease. An expert witness’ recognition of the presence of multiple “contributing” factors seriously undercuts Weil-McLain’s sole proximate cause theory by failing to eliminate Weil-McLain boilers as one of the possible causes of Clarence’s disease.

Notably, defense counsel was allowed to obtain supportive evidence from Dr. Mark on cross-examination. Dr. Mark admitted that the chemical composition of amphibole fibers, including amosite and crocidolite, was different from that of chrysotile fibers. He even accepted the defense’s propositions that “on a fiber-by-fiber basis, chrysotile [was] the least carcinogenic of the various asbestos fiber types” and that “a greater dose of exposure to chrysotile [would be] required than required for amphibole asbestos exposure to cause diffuse malignant mesothelioma.” In addition, Dr. Mark conceded that early asbestos studies analyzed the effect of amphibole fibers found in thermal insulation, adding to the mounting evidence presented to the jury that thermal insulation, found in pipe covering not made by Weil-McLain, contained a more dangerous fiber on a dose-for-dose basis and required much lower overall exposures to cause disease than the chrysolite fibers found in Weil-McLain boilers.

Finally, the defense presented testimony from Robert Sawyer, M.D., a physician board-certified in preventive medicine, with a master’s degree in public health from Yale, who taught epidemiology at the State University of New York and had worked for the EPA and with a pioneering medical researcher in the field of asbestos at Mount Sinai Hospital. Dr. Sawyer explained that the risk of mesothelioma increases as the dosage of exposure increases and that the differences between different asbestos fiber types in their ability to cause disease was huge. Due to the high temperatures present in boilers, he concluded that the asbestos in Weil-McLain boilers must have been the less dangerous chrysotile type. Dr. Sawyer stated that the risk, if any, from postprocessed chrysotile was extremely slight and that the amount of asbestos in Weil-McLain boilers was insufficient for any type of asbestos fiber to increase the risk of mesotheliorna. Sawyer added, however, that he still believed Clarence’s illness was caused by his exposure to workplace asbestos, adding support to the conclusion that another source of workplace asbestos was the sole proximate cause of the disease because the chrysotile in Weil-McLain boilers could not have caused it.

Thus, even though Dr. Sawyer was not permitted to state his opinion that Clarence’s mesothelioma was due to amphibole fibers in thermal system insulation, he did tell the jury that: (1) Clarence’s workplace exposure to chrysotile in Weil-McLain boilers could not have been the cause of the disease and (2) some other source of workplace asbestos was the cause. In light of the testimony elicited from William Ewing, Frederick Boelter, Dr. Mark, and Dr. Lemen, stating that pipefitters often worked closely with or around pipe covering and block insulation containing dangerous amphibole asbestos from thermal insulation systems, Dr. Sawyer’s excluded opinion would have added little. Contrary to Weil-McLain’s claim, the exclusion of this one opinion is insufficient to create reversible error.

I agree with the trial judge’s express finding that “any intelligent jury [would have] already figured out [that Clarence had] been exposed to all kinds of asbestos and all kinds of circumstances.” Notably, that finding was made early in trial and was based solely on the testimony addressing Clarence’s work history, before any expert testimony establishing the extent of Clarence’s other asbestos exposures was given. Although the majority initially criticizes this finding because it came “early in the trial” (233 Ill. 2d at 448), I believe the trial court’s conclusive statement so early in the case exemplifies the harmless nature of the error. Even at an early stage of trial, well before the admission of the many additional references to Clarence’s exposure to other, more harmful, asbestos types from his work in proximity to pipe covering and block insulation, the judge was confident that the jurors were well aware that Clarence’s varied work experiences subjected him to numerous other asbestos exposures.

The majority next criticizes the trial court’s finding by noting that it is “in sharp contrast to” a statement in the trial court’s posttrial opinion, where the court “concluded that the exclusion of [other-exposure] evidence had made the case ‘undefendable’ and that defendant had been ‘precluded from pointing to some other proximate cause.’ ” 233 Ill. 2d at 448. Noticeably absent from this criticism is any mention of the express rationale underlying the “sharp contrast” in those two statements.

As stated in the trial court’s posttrial ruling, the sole reason the court was “troubled” was its belief that stare decisis compelled it to apply the Lipke rule, thus creating an irrebuttable presumption that Weil-McLain was a proximate cause of Clarence’s illness. The trial court’s posttrial decision reveals that the court incorrectly believed that “the state of the law and state of science of asbestos-related disease are not in sync” because the Lipke rule relied on a scientific presumption that all doses of “all forms of asbestos cause all forms of asbestos-related illness.” Therefore, the trial court concluded that “asbestos-product manufacturers are presumed guilty based upon a negative presumption as long as there is any evidence the plaintiff was exposed to their product” and, thus, are barred from presenting evidence of another sole proximate cause, making the cause “undefendable.” The “sharp contrast” between the judge’s statement early in the trial and its posttrial comments is attributable to the trial court’s erroneous legal conclusion that the Lipke rule made the case “undefendable” by creating an irrebuttable presumption that Weil-McLain was a proximate cause of Clarence’s illness. It was not due to a change in the court’s view of the type of evidence heard by the jury.

Now that this court has correctly declared the Lipke rule to be “inapposite” here (233 Ill. 2d at 438), the sole articulated basis for the apprehension stated in the post-trial ruling is eliminated. With the elimination of the sole basis for the “sharp contrast” between the trial court’s earlier statement that the jury had undoubtedly “already figured out [that Clarence had] been exposed to all kinds of asbestos and all kinds of circumstances” and its posttrial concern that the case was “undefendable,” the majority’s criticism of the earlier statement is now also “inapposite.”

I also note that if, after hearing all the evidence in the case, the trial court believed that its ruling actually prevented Weil-McLain from presenting evidence of Clarence’s other asbestos exposures essential to its sole proximate cause defense, the jury instructions would have reflected this conclusion. Yet, instead of refusing Weil-McLain’s tendered sole proximate cause instruction based on the lack of sufficient other-exposure evidence, the trial court gave that instruction to the jury, over Nolan’s objection. Thus, both early and late in the trial, the court was not so overwhelmingly convinced that Weil-McLain had been entirely “precluded” from “pointing to some other proximate cause” (233 Ill. 2d at 442) that it could not instruct the jury on Weil-McLain’s sole proximate cause defense.

By giving that instruction, the trial court demonstrated its continued belief that sufficient evidence had been admitted to support Weil-McLain’s sole proximate cause defense. Indeed, if the court’s view had not persisted after it heard all the evidence, it could not have properly given the sole proximate cause instruction. Thus, the trial judge, who was undisputedly in a superior position to evaluate the evidence and the credibility of the witnesses during this lengthy trial, must have concluded that sufficient evidence had been admitted to support the claim that Clarence’s exposure to asbestos from non-Weil-McLain products was the sole proximate cause of his illness.

Nonetheless, the majority rejects the trial court’s conclusion and instead relies on a quotation from a federal trial court memorandum order and opinion where the judge denied the plaintiffs’ motion in limine seeking to bar references to the settling defendants’ liability. 233 Ill. 2d at 449, quoting Warner/Elektra/Atlantic v. County of DuPage, No. 83—C—8230 (N.D. Ill. March 6, 1991). The majority’s reliance on the quotation is misplaced because the cases are readily distinguishable. In Warner/ Elektra, the trial judge was making an initial ruling on a pretrial motion, before the admission of any evidence, while this court is reviewing the trial court’s finding, made after the admission of all evidence, that sufficient evidence of Weil-McLain’s sole proximate cause defense existed to permit the issue to go to the jury. In Warner/ Elektra, the court was attempting to avoid the potential problem that the jurors would be unable to find for the defendant if absolutely no evidence was admitted showing that a third party was the sole proximate cause of the injury. In contrast, here, despite the trial court’s stated exclusion of all other-exposure evidence, the record is replete with evidence that the sole proximate cause of Clarence’s illness was his workplace exposure to more dangerous forms of asbestos that were unrelated to Weil-McLain’s products. The problem that the Warner/Elektra court anticipated simply did not arise in the present case. The majority’s reliance on the Warner/Elektra quotation is misplaced because it does not accurately reflect the circumstances here.

Although Weil-McLain’s request for a new trial cites specific evidence purportedly excluded by the trial court’s ruling, my review of the record reveals that either the substance of that evidence was indeed presented or that the evidence did not substantially support a sole proximate cause defense. Both parties offered strong, conflicting evidence on Clarence’s exposure to different types and amounts of asbestos fibers from a variety of workplace sources, creating a genuine question for the jury about the true cause of Clarence’s illness.

“[T]he weight to be assigned to an expert opinion is for the jury to determine in light of the expert’s credentials and the factual basis of his opinion.” Snelson v. Kamm, 204 Ill. 2d 1, 27 (2003). If the jury adopted Nolan’s evidence and legal theory that mesothelioma was caused, at least in part, by Clarence’s exposure to the asbestos in Weil-McLain’s boilers, it would have necessarily rejected Weil-McLain’s sole proximate cause defense and entered a verdict for Nolan. No amount of additional testimony specifically naming other possible asbestos sources would alter that determination. If, on the other hand, the jury were more convinced by the testimony and evidence supporting Weil-McLain’s sole proximate cause theory, it would have returned a verdict for the defendant even though it could not identify the exact alternate source of Clarence’s illness. It is enough that the jury can conclude the evidence established that some entity not present at trial was the sole proximate cause and that Weil-McLain’s boilers were not even a contributing cause.

Evidence identifying the specific outside sources that could have been the sole proximate cause is not necessary, or even relevant, to the jury’s determination of whether the evidence proved that some source other than Weil-McLain was the sole proximate cause. The admission of more detailed identification evidence is not required to provide a sufficient basis for a jury finding in favor of Weil-McLain. Thus, Weil-McClain’s sole proximate cause defense was not unfairly prejudiced due to the nature of the evidence that was both admitted and excluded here.

Also, the jury was instructed on Weil-McLain’s sole proximate cause defense, over Nolan’s objection, because the trial court found that sufficient evidence was admitted to allow the jurors to find that Weil-McLain’s boilers did not cause Clarence’s mesothelioma. The majority does not assert that the submission of this instruction was an abuse of the trial court’s discretion. See Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101-02 (1995). After being appropriately instructed, the jury returned a verdict in favor of Nolan, rejecting Weil-McLain’s sole proximate cause defense.

Based on my review of the record and the evidence that Weil-McLain claims should have been admitted in its request for a new trial, I maintain that sufficient evidence was admitted, if believed by the jury, to conclude that Clarence’s exposure to other asbestos sources, especially to amphibole-containing pipe covering and block insulation, was the sole proximate cause of his disease. Thus, a new trial is not warranted because Weil-McLain was able to receive a fair, albeit not perfect, tried in spite of the trial court’s ruling. Thus, the ruling was harmless error in this case, and I would affirm the judgment of the appellate court on this limited ground. Accordingly, I must respectfully dissent from the result reached by the majority, despite my agreement with its analysis of the other substantive legal issues raised in this appeal.