Asbestos conspiracy trial gets under way in Bloomington

Steve Korris Jun. 8, 2010, 7:53am



BLOOMINGTON - Jury selection was set to begin Tuesday morning in an asbestos conspiracy trial that began June 7 before McLean County Circuit Judge Michael Prall.

On Monday, Prall denied every defense motion except a small one.

He stuck with a pattern of rulings that have generated nine conspiracy verdicts worth more than $40 million before three judges since 2004.

The conspiracy theory of local lawyer James Wylder covers about 80 years and holds today's companies liable for acts of their predecessors.

Wylder claims companies that produced or used asbestos conspired to conceal information about its health hazards.

His prime target, Honeywell International, didn't participate in a conspiracy but faces liability because it bought Bendix, a member of the alleged conspiracy.

In February, jurors in Prall's court awarded $10 million in punitive damages against Honeywell and $4.37 million against Pneumo Abex.

Honeywell, Pneumo Abex, Owens-Illinois, and John Crane Inc. immediately began preparing for the next trial without knowing whose claims they would defend.

On May 27, Prall ruled that Wylder could jointly try the cases of two mesothelioma victims, Larry Dunham of Springfield and Norman Shoopman of Bloomington.

Prall rejected arguments that differences in their exposure history would confuse jurors, suggesting jurors won't hear much about exposure anyway.

"My experience has been that at least 80 percent of these cases are spent on conspiracy," he said.

Eleven days later, as trial began, Honeywell lawyer Colleen Baime moved to exclude evidence on exposure to asbestos from friction on automobile brakes.

She said friction doesn't cause mesothelioma.

She said Wylder cited no experts but relied on treating physicians.

Prall said, "They have to be what, epidemiologists?"

"Epidemiology is different from legal causation," Prall said. "That, to me, is just an issue for the jury."

Prall also denied a motion to exclude testimony of author Barry Castleman in support of a conspiracy theory.

Owens-Illinois lawyer Matt Fischer said Castleman can't testify that a conspiracy existed and added, "There isn't anything left that is helpful to the jury."

Prall said, "He can testify because it is helpful to the jury, I think, to have someone who has historical knowledge. I think it's extremely helpful."

Wylder said, "He's got a chapter in his book on conspiracy."

Wylder asked Prall to preclude defendants from commenting in closing arguments about a lack of evidence for Castleman's conclusions.

Prall said, "It all depends on how it's phrased. It's better dealt with at the time."

Fischer then moved to strike a supplement to Wylder's witness list, saying he received it on June 2.

He said Wylder didn't move for late disclosure.

Fischer also said the first paragraph referred to individuals who had been deposed but didn't name them.

He said two names that appeared in another paragraph suggested Wylder might change his allegations and require a change in defense.

Wylder said he added the names because of what Honeywell said at pretrial.

For the others, he said there would be no surprise if their testimony at trial was consistent with their depositions.

Prall said the objection wasn't valid.

Baime asked Prall to clarify if he denied a motion to hold a hearing on the qualifications of Wylder's experts.

Prall said, "Right."

Fischer moved for summary judgment, noting that Prall denied it to Honeywell.

"You can't conspire to fail to do something you had no duty to do," Fischer said.

He said there must be evidence that plaintiffs inhaled a defendant's product. He also said there was no evidence of proximity to Owens-Illinois products.

Prall said there was circumstantial evidence.

"There is enough to go forward," he said. "It's a jury issue."

For Owens-Illinois, Joshua Lee said that although Dunham alleged exposure from 1974 to 1977, one of his witnesses started working with him in 1986.

"Those two things can't even go together," Lee said.

Wylder said there was circumstantial evidence from the 1970s.

Prall said, "Is there evidence in that period, that pretty much all brakes were asbestos?"

Lee said, "There is no evidence whose. The '74 to '77 stuff has to be out."

Prall said, "I think at this point it's enough to go ahead."

For Pneumo Abex, Ray Modesitt asked Prall to sever John Crane Inc. from the trial.

He said its presence was a sham and an ethics violation.

He pointed to Wylder and said, "Let them sit on that side or sever them."

Baime joined the motion, saying there was no allegation that plaintiffs were exposed to John Crane products.

Wylder said, "Mr. Modesitt thinks everybody over there ought to bow down to him."

Prall said, "Why go down these roads? Don't start in on each other."

Modesitt said, "Their failure to argue the motion for summary judgment leads me to think something is amiss."

Prall asked if he had any legal authority for that, and Modessit said no.

Prall said, "We are delving into trial strategies. There's more than one case, I've asked myself, why is this person here?"

"One guy gets mentioned two minutes. Someone else gets mentioned six weeks."

He denied the motion to sever.

That would have ended the day without a single victory for the defense, except that Prall had excluded evidence that Dunham's father exposed him to asbestos fibers.

As the hearing ended, Modesitt raised a point about preparing witnesses.

Prall said, "I will be surprised if there is a witness in this case that hasn't testified in 10 others."

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