Presiding Justice POPE delivered the judgment of the court, with opinion.
¶ 1 On January 27, 2014, after a jury verdict in favor of plaintiff, James Smith, the trial court entered judgment in favor of plaintiff and against defendant, the Illinois Central Railroad Company (Illinois Central). On July 11, 2014, the court denied defendant's posttrial motion but allowed credits from prior settlements to reduce the amount of the jury award. Defendant appeals, arguing the trial court erred in multiple ways. However, we address only those issues necessary to decide this appeal. We reverse the judgment in this case and remand for a new trial because the trial court erred by preventing defendant from presenting evidence regarding plaintiff's work history at the Union Asbestos & Rubber Company (UNARCO) facility at the Bloomington rail yard.
¶ 2 I. BACKGROUND
¶ 3 Because of the voluminous nature of the record in this case, we address only the facts necessary to decide this appeal. On July 21, 2005, plaintiff filed his complaint against Pneumo Abex Corporation; Pneumo Abex LLC; Metropolitan Life Insurance Company; Owens-Illinois, Inc.; Honeywell International, Inc.; Railroad Friction Products Corporation; and Illinois Central. As of October 2013, the only defendant remaining in this case was Illinois Central.
¶ 4 On October 1, 2013, the trial court held a final pretrial hearing in this case. One of the issues considered by the court was plaintiff's motion in limine, which sought to prohibit defendant from introducing any evidence plaintiff was "exposed to asbestos dust in any manner other than by virtue of [his] employment by [d]efendant." Defense counsel stated he had the following concern:
Plaintiff's counsel then interjected that plaintiff worked at UNARCO for a short period of time and then for defendant's predecessor, the Gulf Mobile & Ohio Railroad (GM & O). No one disputes defendant is responsible for GM & O's actions. According to plaintiff's counsel, defendant denied plaintiff was sick from asbestos exposure, not that UNARCO was the sole proximate cause of plaintiff's asbestosis. Plaintiff's counsel argued plaintiff was exposed to dust as a result of the use of asbestos products at the rail yard. This included exposure to dust from the UNARCO facility. GM & O knew asbestos was being used at the UNARCO facility, knew asbestos dust was blowing into the area where plaintiff was working, and knew its employees were complaining about the dust and did nothing to protect them. According to plaintiff, this was a breach of defendant's duty pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C.A. §§ 51-60) to provide its employees a safe place to work. Plaintiff argued his employment at UNARCO was not at issue, only his exposure to asbestos — including dust from the UNARCO facility — while working for defendant. After plaintiff's counsel stated plaintiff's UNARCO work history could not be mentioned pursuant to the motion in limine, defense counsel objected, arguing "[t]he jury could reasonably find that if [plaintiff] has disease, it could have been caused by what could have likely been more extensive exposure at [UNARCO]." The trial court allowed the motion in limine "in the absence of any evidence as to sole proximate cause."
¶ 5 The trial court also heard arguments with regard to defendant's motion in limine to exclude evidence regarding the existence of the lease between defendant and UNARCO and related evidence. Defendant argued it had no duty to control UNARCO's activities on the leased property. Therefore, defendant's status as UNARCO's landlord was not relevant. According to defendant, "By allowing the lease in, the jury could reach the conclusion that the railroad was somehow negligent as a landlord." Defendant argued the lease was more prejudicial than probative of the issues in the case and should be excluded.
¶ 6 Plaintiff's counsel argued this evidence should not be excluded. According to plaintiff's counsel, plaintiff would not argue defendant should have controlled what went into the UNARCO facility and what occurred inside the facility. However, defendant had a responsibility to deal with the dust after it left the UNARCO facility. Further, the lease and other evidence defendant sought to exclude showed the railroad knew UNARCO would be working with asbestos at the rail yard. The trial court denied the motion in limine with regard to the lease.
¶ 7 After the first jury was selected in October 2013, the trial court declared a mistrial after two jurors were dismissed for cause. In January 2014, a new jury was selected, and the trial began.
¶ 8 Plaintiff called Lyndle R. Burton, defendant's manager of industrial hygiene, as an adverse witness. Burton testified both defendant and GM & O were likely using asbestos products in the 1930s and 1940s. He was unsure if they were actively involved in using asbestos in the 1950s. However, he testified asbestos was everywhere in the 1950s and 1960s.
¶ 10 Burton acknowledged testifying in 2006 defendant knew in the 1930s the use of asbestos in its shops was hazardous. However, he further testified, "After I've had a chance to look further at the documents I was being questioned on, instead of just one page, I have no belief that they knew that there was a hazard of asbestos." According to Burton, neither defendant nor GM & O knew in the 1930s the use of asbestos in their shops was potentially hazardous. He admitted defendant knew asbestos could cause asbestosis in the 1930s, but it was not concerned about a potential risk to its employees because of the lower dust levels at railroad shops compared with occupations with greater exposure.
¶ 11 The trial court allowed plaintiff to question Burton on a document from a 1935 meeting of the Association of American Railroad Proceedings in Atlantic City, New Jersey, over defendant's objection no one from GM & O was present at the meeting. The document showed defendant was represented at the meeting. The document included a report by the Committee on Disability and Rehabilitation, which included an entry on pneumoconiosis. The report talked about silicosis and asbestosis. According to the report, asbestosis was not a common condition but caused extensive pulmonary fibrosis. The report noted a patient's history is very important in making an early diagnosis. The report recommended educating all concerned, getting rid of asbestos dust, having employees wear inhalers, and analyzing the dust content of the air at different times during working hours. Burton disagreed with plaintiff's assertion the report reflected a concern by railroad physicians that employees were at risk of getting asbestosis and silicosis. Burton believed the concern of the report was exposure to silica.
¶ 12 Over defendant's objection, the trial court also allowed plaintiff to introduce a 1937 circular from the General Managers Association of Chicago, which purportedly went to all railroads operating in Illinois. The circular included suggested recommendations to be observed by employees handling asbestos. The circular stated:
According to the document, respirators should be furnished by the company and orders issued for employees to wear respirators any time they are handling asbestos; the asbestos should be sprayed down with water to help control dust; and asbestos insulation should be removed at night, when the least number of men would be working in the vicinity.
¶ 13 Charles Garrett, the risk mitigation manager for defendant, testified he deals with lung disease claims, the majority of which involve asbestos exposure. Garrett provided some background information with regard to who had operated the Bloomington rail yard. According to defendant, Chicago and Alton Railroad operated rail yards from 1869 until 1947, when GM & O purchased the assets of Alton
¶ 14 During Garrett's testimony, plaintiff moved to introduce the 1951 lease agreement between GM & O and UNARCO. Defendant's objection was overruled, and the trial court granted defendant's request for a continuing objection with regard to the lease and documents related to the lease. Garrett testified that by 1951 defendant knew of the hazards of asbestos. The following exchange then occurred over defendant's objection:
Garrett also testified GM & O clearly knew UNARCO was going to make asbestos insulation in the leased facility.
¶ 15 At the end of Garrett's examination by plaintiff's counsel, defendant moved for a mistrial based on the testimony concerning the lease between GM & O and UNARCO. Defense counsel argued:
The trial court stated it believed the evidence went to the issue of notice and denied the motion for a mistrial.
¶ 16 Dr. Alan Ginzburg, a board-certified physician in internal, pulmonary, and critical care medicine, testified the major diseases associated with asbestos exposure include asbestosis, lung cancer, and mesothelioma. In addition, Ginzburg testified asbestos exposure can cause pleural plaques and benign asbestos pleural effusions. According to the doctor's testimony, no way exists to determine which specific day of asbestos exposure or which specific asbestos fiber caused an asbestos-related disease. The more exposure to asbestos an individual experienced the greater the likelihood of a resulting disease. When asked about the phrase "neighborhood disease," Ginzburg testified:
Dr. Ginzburg testified he had treated individuals with asbestos-related diseases who never worked directly with asbestos but lived in the neighborhood of the UNARCO plant in Bloomington.
¶ 17 Dr. Ginzburg testified plaintiff was one of his patients. In Ginzburg's opinion, plaintiff had asbestosis and pleural plaques, both permanent diseases, caused by asbestos exposure. Ginzburg testified asbestosis can be a progressive disease and fatal. Ginzburg opined plaintiff's three years of exposure to asbestos working for the railroad was likely enough exposure to cause his asbestosis, pleural plaques, and lung disease.
¶ 18 Outside the presence of the jury, defendant examined Dr. Ginzburg as part of an offer of proof. Ginzburg testified plaintiff's work history included employment at the UNARCO facility. Ginzburg testified everyone who worked at UNARCO had asbestos exposure. Ginzburg did not know if he had treated any other former railroad worker who had asbestosis. Ginzburg testified it was possible within a reasonable degree of medical certainty for plaintiff's asbestos exposure at UNARCO to be sufficient to cause his plaques and asbestosis. The following exchange then occurred between plaintiff's counsel and Dr. Ginzburg:
¶ 19 Michael McGowan testified he began working for GM & O in Bloomington in May 1959. He then worked for defendant until 1994. McGowan stated everyone knew the pipe insulation at the rail yard contained asbestos, but the railroad never told anyone the asbestos could be harmful. Other than pipe insulation, McGowan testified asbestos products at the rail yard included brake shoes, asbestos sheets, packing, and gaskets.
¶ 20 According to McGowan, the UNARCO building would easily cover a football field. During the majority of his career working at the Bloomington rail yard, he did not see dust blowing out of the building. However, the UNARCO workers would have dust on them.
¶ 21 Robert Winstead testified he saw material blowing out of the UNARCO building and around the rail yard when he
¶ 22 Dr. Arthur Frank, in a videotaped evidentiary deposition played for the jury, testified he is a physician licensed to practice medicine and also has a Ph.D. in biomedical sciences. Dr. Frank stated the original research he did for his Ph.D. thesis concerned the effects of asbestos on respiratory tissue. Dr. Frank testified he is employed by Drexel University and has a number of positions with the University, including but not limited to professor of public health, chair of the department of environmental and occupational health, and professor of medicine in the department of internal medicine, specifically in the pulmonary division. According to Dr. Frank's testimony, asbestosis can be a fatal disease.
¶ 23 Dr. Frank stated asbestosis is not a disease you see in the general population. No one will get asbestosis unless they are exposed to a significant amount of asbestos. According to the doctor:
Plaintiff's counsel then asked Dr. Frank whether science has determined what a safe level of asbestos exposure is, to which the doctor responded:
Later, during his cross-examination by defense counsel, Dr. Frank clarified his testimony stating: "There's no known safe level and it's treated as if there's no safe level."
¶ 24 Plaintiff's counsel then asked how it can be determined what day, week, or month's exposure to asbestos caused a patient's
Plaintiff's counsel and Dr. Frank also discussed frequency of asbestos exposure:
¶ 25 Plaintiff's counsel also asked Dr. Frank about reentrainment, to which Dr. Frank replied:
Plaintiff then asked about the efficacy of cleaning up asbestos fibers with a household vacuum in the period between the 1940s and the early 1970s.
¶ 26 On cross-examination, Dr. Frank testified he had not been given any medical records in this case.
¶ 27 Plaintiff testified he went to work for the railroad in 1955 and worked there for three years. He worked at the "wheel and axle" shop and in the storeroom. According to plaintiff, he did not know what asbestos was while working for the railroad and did not know he was working around any asbestos-containing products. After working at the wheel and axle shop, he worked at the scrap dock sorting metal and brake shoes. He testified he also helped clean parts of the rail yard by sweeping up dust with a push broom. In addition, plaintiff helped move items from the roundhouse to the train depot. According to his testimony, the railroad never provided him with a respirator, and he never saw anyone wearing a respirator.
¶ 28 As to his health, plaintiff testified he was afraid he was going to get cancer. He stated he thought about it every day.
¶ 29 On cross-examination, plaintiff testified close to 100% of his time working at the railroad was outside. On redirect, plaintiff testified he was usually in the area of the UNARCO facility. In an offer of proof outside the presence of the jury, the parties agreed plaintiff worked at UNARCO for three months in 1954. Further, plaintiff left UNARCO because it was dirty.
¶ 30 After plaintiff rested, defendant made a motion for a directed verdict, which the trial court denied.
¶ 31 Among other witnesses defendant called, Duane Amato, an industrial hygienist, testified dose could be the most important concept with regard to industrial hygiene. According to Amato:
With regard to asbestos, Amato testified mesothelioma can result from smaller levels of asbestos exposure than asbestosis. According to Amato, "[t]he vast weight of evidence shows" mesothelioma can occur after approximately five fiber years of asbestos exposure. As for asbestosis, Amato testified "the vast majority of studies, vast majority of regulators, consultants, experts in the field" would say asbestosis does not occur absent asbestos exposure of 25 fiber years. However, on cross-examination, Amato conceded no one knows asbestos disease is only caused by a minimum of five fiber years of asbestos exposure. According to Amato:
¶ 32 Amato testified it was his opinion within a reasonable degree of industrial hygiene certainty that GM & O provided plaintiff with a reasonably safe place to work. According to Amato, he based his opinion on:
With respect to why it was a safe environment with regard to asbestos exposure, Amato stated:
Further, with regard to how distance from asbestos affects exposure rates, Amato offered the following example with regard to an individual three feet away from asbestos:
The trial court sustained plaintiff's objection based on nondisclosure when defense counsel asked Amato: "Do you have an opinion within a reasonable degree of industrial hygiene certainty as to what [plaintiff's] dosage would be to asbestos based on his description of his work career?"
¶ 33 The following exchange occurred during plaintiff's counsel's cross-examination of Amato:
In an offer of proof, Amato testified, based on his review of plaintiff's deposition, he determined plaintiff worked at UNARCO for a little less than one year. Based on the level of exposure at the UNARCO plant, plaintiff would have received an asbestos exposure greater than 25 fiber years, "depending on his job."
¶ 34 Defendant presented the testimony of other witnesses, but we need not address their testimony here for purposes of this appeal. The jury ultimately found for
¶ 35 This appeal followed.
¶ 36 II. ANALYSIS
¶ 37 A. Defendant's Motion for a Directed Verdict
¶ 38 We first address defendant's argument the trial court erred in denying its motion for a directed verdict. A motion for a directed verdict should only be granted when the evidence presented, viewed in a manner most favorable to the nonmoving party, is so overwhelmingly in the movant's favor no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14 (1967). In ruling on a motion for directed verdict, a trial court "may only consider the evidence, and any inferences therefrom, in the light most favorable to the party resisting the motion." Maple v. Gustafson, 151 Ill.2d 445, 453, 177 Ill.Dec. 438, 603 N.E.2d 508, 512 (1992). Based on this standard, the trial court clearly did not err in denying defendant's motion for a directed verdict.
¶ 39 According to defendant, the evidence overwhelmingly established it was not negligent. Defendant argues FELA imposes a general duty on railroads to use ordinary care to provide a reasonably safe workplace. This court has stated "the standard of proof is lower in a FELA case, [but] FELA is not an insurance statute." Myers v. Illinois Central R.R. Co., 323 Ill.App.3d 780, 787, 257 Ill.Dec. 365, 753 N.E.2d 560, 566 (2001). Defendant argues:
¶ 40 We disagree with defendant. Based on the evidence presented in this case, the evidence — when viewed in plaintiff's favor — and the inferences that can be drawn from that evidence clearly did not overwhelmingly support a verdict in defendant's favor. For purposes of a motion for a directed verdict, the trial court would have had to infer GM & O knew the danger asbestos posed to those working around it when plaintiff was working at the rail yards in the 1950s.
¶ 41 With regard to the dose of asbestos plaintiff was exposed to at the rail yards, plaintiff presented a witness who testified workers at the rail yard were exposed to large amounts of dust from the UNARCO facility and worked with products containing asbestos. Plaintiff also presented evidence GM & O knew UNARCO was going to be working with asbestos at the Bloomington rail yard facility. Further, the evidence regarding what caused plaintiff's asbestosis was sufficiently tied to his work at the rail yard to survive a motion for a directed verdict.
¶ 42 B. Evidentiary Issues
¶ 43 Defendant makes a series of arguments regarding the trial court's evidentiary rulings. Ordinarily, we review a trial court's decision to admit evidence under an abuse-of-discretion standard of review. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill.App.3d 444, 452, 288 Ill.Dec. 778, 818 N.E.2d 713, 720 (2004). For purposes of this decision, we need only address the evidentiary issues concerning the operations of the UNARCO facility and plaintiff's employment at UNARCO.
¶ 44 Defendant argues the trial court abused its discretion by admitting evidence of the lease agreement between GM & O and UNARCO and other related evidence. Defendant also argues the trial court abused its discretion by not allowing it to introduce evidence plaintiff worked at the UNARCO facility for a three-month period prior to working for the railroad and quit working for UNARCO because the work was dirty. We disagree with defendant on the first point but agree on the second.
¶ 45 We first address defendant's argument the trial court abused its discretion by admitting evidence of the UNARCO lease agreement and UNARCO's operation at the rail yard. Defendant argues this evidence was irrelevant and extremely prejudicial to defendant. According to defendant:
Defendant argues it cannot be held responsible for any conduct of its tenant UNARCO because as a landlord it relinquished possession and control of its premises to UNARCO.
¶ 46 Defendant argues a landlord owes no duty to control the operations of its tenant. However, defendant's reliance on landlord-tenant law is not relevant to the theory of liability in this case. Plaintiff was not arguing defendant had to control UNARCO's activities at the facility. The lease and related evidence regarding UNARCO's operation were relevant because they related to defendant's knowledge of UNARCO's operation and the potential effects it could have on defendant's employees who were working in close proximity to the UNARCO plant.
¶ 47 Defendant also argues this evidence was confusing to the jury and prejudicial to defendant because of the "notoriety of the UNARCO plant in the Bloomington community." However, this argument amounts to mere speculation and conjecture. Defendant points to nothing in the record supporting this argument.
¶ 48 Defendant also argues the trial court erred by allowing testimony from former employees who worked at neither UNARCO nor the railroad at the same time as plaintiff. On this point, plaintiff argues the trial court did not abuse its discretion in allowing the testimony because the difference in job title and the discrepancy of time of employment would go to the weight of the evidence, not its admissibility. We agree. Further, as plaintiff points out, defendant's corporate representative testified defendant's operations were the same during this entire period. Further, defendant argues the trial court erred by prohibiting defendant from questioning these witnesses regarding their lawsuits against defendant and their representation by plaintiff's counsel
¶ 49 We next address defendant's argument the trial court erred in excluding evidence plaintiff worked at the UNARCO facility at the Bloomington rail yard prior to working for the railroad. Defendant makes a two-pronged argument. First, defendant argues the court erred in granting plaintiff's motion in limine barring defendant from introducing this evidence. Second, according to defendant, the court erred in not allowing this evidence after plaintiff's opening statement detailed his entire work history except his employment at the UNARCO facility. According to defendant:
¶ 50 However, plaintiff argues the trial court did not err in excluding evidence of plaintiff's short work history at UNARCO. According to plaintiff:
Plaintiff first argues defendant sought to introduce this evidence "only as a means to shift the blame to a concurrent tortfeasor." From the record, it does not appear defendant was trying to shift blame to a concurrent tortfeasor. Instead, defendant was trying to cast doubt on plaintiff's assertion defendant was a proximate cause of plaintiff's asbestosis by informing the jury plaintiff had significant asbestos exposure before he worked for the railroad.
¶ 51 In addition, without citing any authority in his brief, plaintiff argued defendant never had a sole proximate cause defense because:
Plaintiff provides no authority for the proposition a defendant must concede a plaintiff has an asbestos-related disease before it can present a sole proximate cause defense. In fact, plaintiff's argument would improperly ease a plaintiff's burden of proof. Illinois case law states:
See also Johnson v. Owens-Corning Fiberglas Corp., 313 Ill.App.3d 230, 235, 246 Ill.Dec. 232, 729 N.E.2d 883, 887 (2000). We see no reason why defendant could not challenge plaintiff's evidence regarding medical causation and also challenge plaintiff's claim his exposure at the railroad was the proximate cause of his injury, assuming the trier of fact found plaintiff met his burden with regard to medical causation. Plaintiff's counsel essentially dropped this claim during oral arguments.
¶ 52 Instead, during oral arguments, plaintiff's counsel claimed defendant could not pursue a sole proximate cause defense because he had no expert witness who could testify plaintiff's asbestos exposure while working for the railroad was not a proximate cause of plaintiff's asbestosis. This argument goes to plaintiff's statement in his brief that "[a]ny attempt by [d]efendant to bring up [plaintiff's] exposure at UNARCO would just be an attempt to shift the blame to a concurrent tortfeasor, not to prove a sole proximate cause defense." (Emphasis added.)
¶ 53 As our supreme court noted in Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 93, 212 Ill.Dec. 968, 658 N.E.2d 450, 455 (1995):
However, this "principle presumes that a defendant's conduct is at least a proximate cause of the plaintiff's injury." (Emphasis in original.) Id.
¶ 54 Like in Leonardi, defendant in this case denied its actions were a proximate cause of plaintiff's alleged asbestosis. The supreme court in Leonardi stated:
In addressing the plaintiff's argument "the sole proximate cause defense distracts a jury's attention from the simple issue of whether a named defendant caused, wholly or partly, a plaintiff's injury," the supreme court stated:
¶ 55 In Nolan v. Weil-McLain, 233 Ill.2d 416, 331 Ill.Dec. 140, 910 N.E.2d 549 (2009), the supreme court made clear its reasoning in Leonardi applied in asbestos cases. The plaintiff in Nolan alleged he was exposed to asbestos by the defendant, Weil-McLain, when he installed, repaired, or removed boilers manufactured by the defendant. Id. at 419, 331 Ill.Dec. 140, 910 N.E.2d at 550. The other named defendants in the case had settled or been dismissed, which meant defendant was the sole defendant at trial. Id. Relying on Leonardi, the defendant sought to present evidence the sole proximate cause of the plaintiff's death was his exposure to asbestos-containing products of nonparty entities. Id. at 420, 331 Ill.Dec. 140, 910 N.E.2d at 551.
¶ 56 The plaintiff, however, sought to bar all evidence of decedent's exposure to asbestos products of nonparties, arguing it was irrelevant, highly prejudicial, and would confuse the jury. Id. The plaintiff argued:
However, the defendant countered, "because it was the sole defendant, a jury would not accept a low-dose defense without evidence of other asbestos exposures, and that if the evidence showed that its products were decedent's only exposure, a jury could find that its products caused his mesothelioma." Id. The issue before our supreme court was whether the trial court erred by excluding "all evidence of decedent's exposure to asbestos throughout his 38-year career from products" made by other manufacturers. Id. at 428, 331 Ill.Dec. 140, 910 N.E.2d at 555.
¶ 57 The supreme court noted it was undisputed the plaintiff died of mesothelioma. Id. at 421, 331 Ill.Dec. 140, 910 N.E.2d at 551. Further, it was undisputed that "prior to 1974 various asbestos-containing components were supplied with defendant's boilers, including cement and rope manufactured by other entities." Id.
¶ 58 The plaintiff argued "that asbestos cases are `completely unlike' other tort cases, in that `they call for different rules of proof,' evinced by the `presumption' of causation established by this court in Thacker [v. UNR Industries, Inc., 151 Ill.2d 343, 177 Ill.Dec. 379, 603 N.E.2d 449 (1992)]." Id. at 429, 331 Ill.Dec. 140, 910 N.E.2d at 555-56. As a result, the plaintiff requested the supreme court "`recognize an exception to the rule set forth in Leonardi' [(relating to a sole proximate cause defense) ] for asbestos actions." Id. at 429, 331 Ill.Dec. 140, 910 N.E.2d at 556. The supreme court disagreed with the plaintiff on both of these points. Id.
¶ 59 In discussing its decision in Thacker, our supreme court stated it "considered whether the circuit court erred in denying a defense motion for judgment n.o.v. because the plaintiff failed to produce sufficient evidence of exposure to defendants' asbestos." Id. at 430, 331 Ill.Dec. 140, 910 N.E.2d at 556. In holding the trial court's denial of the defendants' motion in Thacker was correct, the court noted it "detailed the proper analysis to be used in determining whether a plaintiff has satisfied the burden of proof at trial." Id. According to the court:
The court noted the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986) criticized a rule that would allow a plaintiff to avoid a directed verdict on the issue of cause by presenting any evidence of mere proximity to the defendant's asbestos-containing product as contrary to the law of substantial causation. Id. at 432, 331 Ill.Dec. 140, 910 N.E.2d at 557. Instead, "`[t]o support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.'" Id. at 432, 331 Ill.Dec. 140, 910 N.E.2d at 557-58 (quoting Lohrmann, 782 F.2d at 1162-63).
¶ 60 Our supreme court noted it adopted Lohrmann's "`frequency, regularity and proximity'" test in Thacker as a method for a plaintiff to show enough contact with a defendant's specific product to establish the defendant's product was a substantial factor in being a cause of the plaintiff's injury. Id. at 432, 331 Ill.Dec. 140, 910 N.E.2d at 558. According to the court:
¶ 61 Our supreme court concluded the plaintiff in Thacker "had satisfied the frequency, regularity and proximity test to withstand a directed verdict and allow the issue of legal causation to be submitted to the jury." Id. at 433, 331 Ill.Dec. 140, 910 N.E.2d at 558. Because the court found the jury's ruling in plaintiff's favor was supported by the totality of evidence presented, the court found the trial court correctly denied the defendant's motion for judgment n.o.v. Id.
¶ 62 However, as the supreme court pointed out in Nolan, Thacker does not stand for the proposition "that once a plaintiff meets the frequency, regularity and proximity test, he or she thereby establishes legal causation." (Emphasis in original.) Id. The court held this erroneous application of Thacker by the appellate court "conflicts not only with the clear language of that opinion, but also with our goal of adopting that test to fairly balance the interests of plaintiffs and defendants in these actions." Id. at 433-34, 331 Ill.Dec. 140, 910 N.E.2d at 558. According to the court:
After concluding Thacker did not create a presumption of causation, the court turned its attention to "whether the circuit court's exclusion of evidence that decedent was exposed to asbestos from sources other than defendant was in error." Id. at 435, 331 Ill.Dec. 140, 910 N.E.2d at 559.
¶ 63 The trial court in Nolan allowed plaintiff to introduce circumstantial evidence to satisfy her burden as to causation. Id. However, it excluded evidence which defendant wished to present to rebut the plaintiff's claims and to support its sole-proximate-cause defense. Id. The supreme court recognized the trial court felt compelled to bar this evidence because of the appellate court opinions in Lipke v. Celotex Corp., 153 Ill.App.3d 498, 106 Ill.Dec. 422, 505 N.E.2d 1213 (1987); Kochan v. Owens-Corning Fiberglass Corp., 242 Ill.App.3d 781, 182 Ill.Dec. 814, 610 N.E.2d 683 (1993); and Spain v. Owens Corning Fiberglass Corp., 304 Ill.App.3d 356, 237 Ill.Dec. 898, 710 N.E.2d 528 (1999). Nolan, 233 Ill.2d at 436, 331 Ill.Dec. 140, 910 N.E.2d at 559.
¶ 64 The defendant asked the supreme court to strike down the exclusionary rule crafted and expanded by these decisions. The defendant argued this exclusionary rule skewed the facts in the plaintiff's favor and led "the jury to conclude that the asbestos products of the sole defendant at trial must have caused the plaintiff's asbestos-related disease in the absence of evidence of any other asbestos exposure." (Emphasis in original.) This conflicted with the supreme court's decision in Leonardi, "which upheld the general validity of the sole proximate cause defense and
¶ 65 The supreme court agreed, declaring the appellate court in Kochan had taken a one-paragraph explanation of black-letter tort law regarding concurrent tortfeasors and expanded:
The court stated the Kochan opinion essentially prevented an asbestos defendant from pointing to the negligence of another as the sole proximate cause of a plaintiff's injury. Id. at 439, 331 Ill.Dec. 140, 910 N.E.2d at 561. According to the court:
¶ 66 The supreme court emphasized its decisions in both Thacker and Leonardi stated the plaintiff bears the burden of proving duty, breach of duty, and proximate cause. Id. at 441, 331 Ill.Dec. 140, 910 N.E.2d at 562. The law does not shift the burden of proof to defendant as to proximate cause. Id. In addition to a defendant's right to rebut evidence tending to show its actions were negligent and the proximate cause of a claimed injury, a defendant also "`has the right to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiff's injuries.'" Id. at 441, 331 Ill.Dec. 140, 910 N.E.2d at 563
¶ 67 Based on our supreme court's opinions in Leonardi and Nolan, defendant in this case did not have to prove anything. We find plaintiff's argument defendant had no-proximate-cause defense because he had no expert witnesses disclosed on causation is simply incorrect as a matter of law. Defendant did not need to establish UNARCO was the sole proximate cause of plaintiff's condition. However, for plaintiff to prevail, he had to establish defendant was a proximate cause of his asbestosis. While defendant had no obligation to do so, it should have been allowed to present evidence of plaintiff's UNARCO work experience in an attempt to establish plaintiff's exposure at UNARCO was to blame for plaintiff's asbestosis should the jury find plaintiff had asbestosis. Because the trial court did not allow defendant to present this evidence, once the jury found plaintiff had asbestosis, it could only conclude the asbestosis was caused by plaintiff's exposure to asbestos while working for defendant.
¶ 68 Based on the facts in this case, the trial court's error was particularly egregious, considering a large portion of plaintiff's case was based on plaintiff's exposure to dust from UNARCO's operation while working for defendant. For the reasons stated in the preceding paragraph, this error clearly was not harmless. Based on the evidence it heard, the jury clearly found plaintiff had an asbestos-related disease, which it could only blame on defendant because it heard no other evidence with regard to asbestos exposure.
¶ 69 When plaintiff's evidence regarding UNARCO's plant conditions (considering a major component of plaintiff's case was plaintiff's exposure to asbestos dust from UNARCO's operation while working out-doors in the vicinity of the UNARCO facility) and defendant's offers of proof are considered together, not to mention the testimony of Dr. Frank, a jury could have found plaintiff failed to prove defendant caused his asbestosis. Defendant could have introduced evidence plaintiff worked at UNARCO for a period of three months, a job he quit because it was dirty. Plaintiff presented evidence the conditions inside the UNARCO plant were horrendous. One of plaintiff's witnesses, Robert Winstead, testified he could not see workers insider the UNARCO facility because it was so dusty inside the building. Dr. Ginzburg testified, based on his past experience, everyone who worked at UNARCO was exposed to asbestos. Further, according to Dr. Ginzburg during an offer of proof, it was possible plaintiff's exposure to asbestos while working at UNARCO could have caused plaintiff's pleural plaques and his asbestosis. Dr. Ginetti also testified plaintiff reported working at UNARCO, which he indicated was an area of high exposure. According to Ginetti, he had
¶ 70 If simply working in the proximity of the UNARCO facility could cause plaintiff's condition, as plaintiff's counsel argued, defendant should have been able to present evidence and argue plaintiff's employment at UNARCO, and not his employment at the railroad, was the only proximate cause of plaintiff's current condition. This is especially true considering Dr. Frank's testimony regarding reentrainment and his opinion asbestosis can result from two to three months of asbestos exposure.
¶ 71 Because we are remanding for a new trial, we need not address the remaining issues raised by defendant.
¶ 72 III. CONCLUSION
¶ 73 For the reasons stated above, we reverse the judgment in this case and remand for a new trial consistent with this opinion.
¶ 74 Reversed; cause remanded with directions.
Justices HOLDER WHITE and STEIGMANN concurred in the judgment and opinion.