Hepler Broom, LLC

Illinois Appellate Court for the Fourth District Labels Exposure Claims as Speculative

January 2, 2014

On October 11, 2013, the Illinois Appellate Court for the Fourth District, which includes 30 counties in central Illinois, affirmed summary judgment orders for two defendants. In Bowles v. Owens-Illinois, Inc., the Plaintiff, Decedent’s surviving spouse, brought lung cancer claims against Owens-Illinois and John Crane.

The cancer was allegedly caused by his exposure to asbestos while aboard the USS Floyd B. Parks. The Decedent was on board the Parks for less than two years. Additionally, the Decedent only worked in the ship’s radio room. The Plaintiff introduced deposition testimony of several other men who were on board the Parks during this time frame. One shipmate testified that dust particles would fall off the ship’s piping when guns were fired but he could not identify whether or not those pipes contained asbestos. Another shipmate stated that insulated pipes ran through the sleeping area but he could not correctly remember the defendant’s product name on the insulation strapping. Yet another shipmate, who worked in the boiler room, recalled working with John Crane’s gaskets and packing and recalled that some men would go to the boiler room to smoke.

The trial court granted both defendants summary judgment.

On appeal, the Fourth District first identified the “frequency, regularity, and proximity” test laid out in Thacker v. UNR Industries, Inc., which requires a Plaintiff to show that he or she was “exposed to the defendant’s asbestos through proof that (1) he regularly worked in an area where the defendant’s asbestos was frequently used and (2) the injured worker did, in fact, work sufficiently close to this area so as to come into contract with the defendant’s product.”
The court first pointed out that no evidence indicated the exact location where Owens-Illinois products might have been installed or how frequently the Decedent was in those locations. Captain William Lowell, a defense expert, could only guess that Owens-Illinois Kaylo was even present on the ship. The court said that “a claim that Decedent was exposed to Kaylo during this time on the Parks is wholly speculative.” With regard to John Crane, no testimony indicated Decedent worked with John Crane products or was around people who regularly did so. One witness identified the removal of gaskets and cutting packing with a knife that would have occurred in the boiler room. The court noted, though, that Plaintiff could only speculate Decedent would have been in the boiler room as a messenger or to smoke.

Additionally, the court downplayed Plaintiff’s use of a study involving the removal and replacement of asbestos packing in valves in a laboratory atmosphere. The court pointed out that there was testimony that work on John Crane gaskets and packing did not create dust and that the ventilation system for the boiler room would have removed the dust. Additionally, the Decedent worked in the radio room which was not near the boiler room. The Appellate Court affirmed the trial court’s summary judgment orders.

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