25-year-old death certificate fails to carry McLean County asbestos case

Steve Korris Mar. 22, 2011, 9:29am


SPRINGFIELD – McLean County lawyer James Wylder, whose mesothelioma conspiracy claims usually succeed, suffered a loss when he sued on the strength of a death certificate from 1982.

Circuit Judge Scott Drazewski rejected Freda Barden's certificate last year, and Fourth District appeals judges affirmed the decision this year.

"No records exist summarizing and detailing the performance of the coroner's official duties in performing a medical examination upon decedent or an autopsy, as none was performed," Justice John Turner wrote.

"Moreover, the preparers who could shed light on their conclusions are no longer living," he wrote.

He wrote that Drazewski correctly excluded testimony of Arthur Frank of Philadelphia.

"Dr. Frank's conclusion that decedent died from mesothelioma was based on evidence that would not be admissible into evidence at trial," he wrote.

Justices James Knecht and Carol Pope agreed.

Wylder has won a string of conspiracy trials in McLean County, holding Honeywell and other companies responsible for events that occurred 50 to 100 years ago.

Verdicts keep growing, and the most recent one exceeded all previous verdicts together.

On March 11, jurors awarded about $40 million in punitive damages against Owens-Illinois, $20 million against Honeywell, and $20 million against Pneumo Abex.

They awarded about $9 million in actual damages against those three and John Crane Inc.

But Barden's estate won't win a penny, Drazewski and the Fourth Circuit decided.

Wylder sued Honeywell, Pneumo Abex, Sprinkmann Sons, Rapid-American, Owens-Illinois, and Garlock Sealing Technologies in 2007, for estate administrator Linda Durbin.

She claimed Barden contracted mesothelioma on jobs at Armour Packing and Hiram Walker distillery in Peoria from 1959 to 1980.

Defendants moved to dismiss under a two year statute of limitation.

Wylder answered that the limit didn't apply because Durbin just discovered the cause of death.

Drazewski denied the motions, so defendants sought an equal result through summary judgment on the death certificate.

After a hearing, Drazewski ruled he couldn't admit the certificate or Frank's report.

Wylder moved for reconsideration, offering as new evidence a diagnosis of mesothelioma in a letter from late oncologist Robert Thompson to a lawyer in 1976.

Barden's daughter, Linda Marks, swore in an affidavit that she found the letter with her mother's personal papers.

Drazewski held a hearing, decided not to admit the letter, and denied reconsideration.

Wylder appealed, arguing the defendants didn't dispute the diagnosis on the certificate.

Defendants answered by challenging all of Wylder's conspiracy claims.

"Repeated trials of claims for asbestos related injuries against defendants who are not even alleged to have made or sold the asbestos products to which the plaintiff was exposed, and whose purported liability is based solely on a civil conspiracy theory, is a phenomenon unique to the central Illinois courts," Neil Lloyd and Joshua Lee wrote for Owens-Illinois wrote.

They argued that a Fourth District decision from 1999 should have put an end to civil conspiracy claims against Owens-Illinois.

They wrote that they defended four multi week trials in 2010.

Abex lawyer Reagan Simpson of Austin, Texas, wrote that it wasn't his client's burden to prove Barden didn't have mesothelioma.

He wrote that it was Durbin's burden to produce admissible evidence that she did have it.

Fourth District judges upheld Drazewski, finding state law limits evidence to results of post mortem and laboratory examinations.

"Although plaintiff attempts to argue that no dispute exists that mesothelioma was the cause of decedent's death, it is hard to imagine what the arguments in the trial court were about if not," Turner wrote.

He rejected Frank's report and the letter from the dead doctor.

"As the letter was in her possession long before the hearing on the motion for summary judgment, plaintiff cannot establish due diligence," he wrote.

The Fourth District issued its mandate on March 7.

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