The Fourth District Illinois Appellate Court released its decision affirming our defense verdict in Holloway v. Sprinkmann 4-13-1118 (PDF opens in a new window). This opinion is noteworthy and favorable to the asbestos defense bar for the following reasons:
- It is the first published decision in Illinois dealing with spoliation of evidence claims in the asbestos context. The appellate court agreed with our position that the defendant’s destruction of sales records was immaterial in this case given the testimony of witnesses presented by plaintiff that the defendant had sold asbestos products to the job site at issue.
- The court casts serious doubt on the merit of plaintiffs’ expert Dr. Arthur Frank’s “each and every fiber” theory, and takes a common-sense approach in affording little weight to plaintiff’s testimony that she “worked all over the plant.” Dr. Frank conceded on one hand that a certain “threshold” of exposure had to be crossed to prove causation, but also stated that if someone was exposed to an undisturbed asbestos product that caused the person to breathe no more fibers than someone would breathe in a pure state of nature (such as hiking in the mountains), “that product nevertheless must be regarded as one of the causes of the person’s asbestosis.” The court stated the jury could have regarded that position as unreasonable, while at the same time being confused by the paradox that a threshold of exposure had to be crossed. Since the plaintiff’s causation argument relied upon speculation, the court refused to find that the jury’s verdict was against the manifest weight of the evidence.
- The appellate court ruled that plaintiff waived the issue of reference to plaintiff’s other exposures to asbestos when plaintiff failed to request a mistrial. While the court side-stepped our argument that the plaintiff “opened the door” to allowing us to refer to other asbestos exposures despite the trial court’s adverse ruling on motions in limine, its recitation of the facts characterizes Sprinkmann’s “opening the door” argument as being based on plaintiff’s counsel’s remarks in opening statement that “no exposure to asbestos could be exonerated” while at the same time stating that Holloway worked in a plant that was full of asbestos, therefore the evidence could not be viewed in proper context without admitting evidence of her other exposures. While the Fourth District did not specifically opine on this issue, the factual summary it embraced may be a sign that courts may be willing to consider introducing evidence of other exposures in similar circumstances where the plaintiff is presenting “each and every fiber” testimony.