McLean County asbestos lawyer seeks rehearing at Fourth District

Steve Korris Aug. 11, 2011, 2:10am




SPRINGFIELD – Fourth District appellate judges who rejected a verdict in an asbestos conspiracy trial defended Honeywell and Pneumo-Abex better than the companies defended themselves, losing lawyer James Wylder of Bloomington complains.

On Aug. 5, he petitioned the Fourth District to reconsider a July 15 decision overruling two precedents that have sustained his unique series of trials in McLean County.

"The majority's effort to overturn the verdict of the jury by raising arguments neither presented nor preserved by the defendants is contrary to principles of appellate review," he wrote.

"The risk when an appellate court conducts its own search, or makes its own factual determinations, is that the court does not know the record in the same way the parties know it," he wrote.

Wylder told Fourth District judges they drew inferences and made arguments that defendants didn't present to them or to the jury.

He challenged their finding that expert witness Barry Castleman lacked qualifications to testify about the significance of experiments with mice.

"The unobjected to testimony at trial was that there was significance," Wylder wrote.

"Yet the majority has raised its own argument that Dr. Castleman lacked the qualifications to answer the question to which the defendants did not object."

Wylder quoted a U.S. Supreme Court decision that, "Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief."

He told them their opinion contained so many inaccuracies that he couldn't address them all in the petition.

Wylder's clients claim Honeywell predecessor Bendix and Pneumo-Abex predecessor American Brake and Block conspired with others to conceal the hazards of asbestos.

Castleman has testified at each trial that in 1943, companies suppressed a report from a scientist who exposed 11 mice to asbestos dust and found tumors in eight.

Verdicts keep increasing, hitting a peak of $90 million last year.

In the case Wylder wants the Fourth District to hear again, jurors awarded $2 million in compensatory damages to Juanita Rodarmel, widow of Baxter Rodarmel.

They awarded punitive damages of $400,000 against Honeywell and $100,000 against Pneumo-Abex.

Circuit Judge Scott Drazewski reduced compensatory damages to $183,333, after subtracting amounts other companies had paid to settle Rodarmel's claims.

Fourth District judges Thomas Appleton, John McCullough, and John Turner ruled that Drazewski should have entered judgment for Honeywell and Pneumo-Abex.

Appleton wrote that companies suppressed the report on mouse tumors because the author told them it lacked controls and meant nothing.

"It cannot be unlawful to hide information that is devoid of significance," he wrote.

"We are not qualified to opine that, in the absence of controls, tumors in eight or nine out of 11 mice – tumors that might not have been malignant (no one seems to know for sure )
– were scientific evidence of a causal relationship between asbestos and cancer in humans," he wrote.

He wrote that Castleman's qualifications were unclear.

"He apparently was not a medical doctor or a veterinarian," he wrote.

"So that leaves no one – that is, no one with relevant expertise – opining that the eight or nine tumorous mice, in an uncontrolled experiment, were scientific evidence of a causal relationship between asbestos and cancer in humans," he wrote.

Appleton overruled a precedent from 2000, counting suppression of the report as evidence of agreement between Abex and asbestos producer Johns-Manville.

He overruled a precedent from 2008, allowing four other pieces of evidence.

He resorted to a wisecrack in correcting Drazewski's decision to allow evidence that Johns-Manville helped Bendix write a position paper.

"If this paper is evidence of a conspiracy, so is the New England Journal of Medicine," Appleton wrote.

Wylder declared in his petition for rehearing that no one suggested a communication between private enterprises was the same as a reputable medical journal.

He wrote that he couldn't determine if it was an attempt at sarcasm.

In addition to discarding evidence, the Fourth District ruled that Drazewski should never
have heard a claim that Baxter died because Juanita carried fibers home from work.

Turner would have reversed the verdict for that reason alone, without examining the conspiracy theory.

In June, in another Wylder case from McLean County, Turner had written an opinion eliminating "take home" claims.

A similar case awaits a decision at the Illinois Supreme Court.

In that case, Simpkins v. CSX Transportation, Fifth District appellate judges in Mount
Vernon ruled that employers had a duty to warn workers.

Fourth District review of McLean County conspiracy trials will continue on Sept. 8, when a panel of three judges will hear oral arguments in three appeals at once.

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