Hennessy Industries asked Associate Judge Stephen Stobbs to reconsider his order barring evidence of alternative asbestos causation at a rare Madison County asbestos trial.
The request for reconsideration comes after plaintiff counsel Tom Hart and Allyson Romani of Shrader & Associates played Dr. Arthur Frank’s video deposition in its entirety at trial before the jury on Feb. 8.
Hennessy’s Feb. 10 motion was filed by Brian Roth of Gordon & Rees, and argues that the plaintiffs waived the order in limine precluding evidence of alternative causation when they introduced evidence in Frank’s testimony.
“Despite the fact that evidence of alternative causation was previously excluded, Plaintiffs have now waived the argument advanced in their own motion in limine – and violated an order in limine – by presenting, at trial, testimony referring to alternative exposure,” the motion states.
During cross examination, Frank provided the possible causes of plaintiff Stanley Urban’s mesothelioma. However, he admitted that there is no way to determine which fibers inhaled actually caused the disease.
“Dr. Frank provided testimony that there are background or ambient levels of asbestos in the air in the typical urban environment, and Mr. Urban would have been exposed to that level of asbestos,” the motion states. “Additionally, as far as what caused Mr. Urban’s mesothelioma, Dr. Frank testified that it is reasonable to say that the if there is any asbestos exposure above background level, that asbestos exposure caused Mr. Urban’s disease.”
Hennessy alleges Frank testified that asbestos exposures from brake products, asbestos-containing clutch products and gaskets would have contributed to the plaintiff’s disease.
“In doing so, Plaintiffs have opened the door for Hennessy to introduce related evidence of alternative exposure, and Hennessy will be prejudiced if it cannot do so,” the motion states.
Frank also testified that OSHA mandates that employers provide a safe and healthful workplace.
Further, the plaintiff’s counsel designated the deposition of Craig Mountz from Rodney Lay v Abbott Laboratories, which includes specific portions pertaining to the liability of employers.
“Consequently, Plaintiff has introduced evidence containing sources of alternative causation of Mr. Urban’s mesothelioma to this Court,” the motion states.
Hennessy argues that Illinois courts have held that a party “opens the door” to evidence when its own witnesses touch on barred topics.
“Hennessy will suffer prejudicial inferences should it not be permitted to introduce further evidence on the issue.
“As the jury has now heard testimony regarding alternative exposure, it very well may incorrectly conclude that that (sic) Hennessy chose not to introduce its own evidence because such testimony would damage its case.
“Plaintiffs simply should not be permitted to demonstrate by way of their own expert that alternative exposures exist, while Hennessy is simultaneously barred from showing that those alternative exposures caused Mr. Urban’s mesothelioma,” the motion states.
Romani filed a response on Feb. 13, arguing that Hennessy did not provide responses to the original motions in limine, nor did they represent to the court during oral arguments that they had evidence or intended to introduce evidence that other exposures caused Urban’s mesothelioma.
“They did indicate that they would attempt to present evidence of the negligence of Mr. Urban’s employer(s), but failed to indicate where or from whom that evidence would come from.
“Regardless, any potential negligence of Mr. Urban’s employer(s) does not relieve Defendant of their nondelegable duty under well settled Illinois negligence law that the concurrent negligence of another does not relieve a party of their negligence,” the response states.
“Defendant has attempted to illicit (sic), and will continue to present, testimony that chrysotile asbestos, the type of asbestos found in brake linings, is not capable of causing mesothelioma. Yet they now ask this Court to allow them to present evidence that Mr. Urban was exposed to clutches and engine gaskets and that this evidence will support a sole proximate cause defense that they have yet to present to this Court.
“It is perplexing to Plaintiffs how chrysotile-containing brakes are incapable of causing mesothelioma, while chrysotile-containing clutches and gaskets are.
“Furthermore, it is also perplexing to Plaintiffs how Defendant can attempt to present evidence and arguments that Mr. Urban’s exposures, if any, to brake linings being ground on a AMMCO brake lining were of such a low dose so as not to increase his risk of developing mesothelioma, while at the same time attempting to argue that the replacement of clutches and the rare scraping of engine gaskets would result in a dose that would not only increase Mr. Urban’s risk, but represent the sole proximate cause of his mesothelioma,” Romani wrote.
The plaintiffs further argue that Hennessy cannot present evidence of any specific actions or inactions of Urban’s employers violating OSHA standards.
They go on to argue that Hennessy “attempted to twist the testimony of their own corporate representative about the knowledge of Defendant as to an Illinois Occupational Disease Act, into an allegation that the Plaintiff has somehow ‘opened the door’ to allow them to present evidence about Mr. Urban’s employers, none of whom were Illinois employers and thereby not subject to this law.”
Urban and his wife Janet Urban are from Michigan, and all of his alleged exposures occurred in Michigan.
The Urbans filed their complaint in March 2013, alleging Stanley Urban was exposed to asbestos-containing products while working at various auto dealerships from the 1960s to 1974 and while working at several schools as an auto technology teacher from 1975 to present.
More specifically, Urban claims he was exposed to asbestos while using Hennessy’s brake grinders.
Urban was diagnosed with mesothelioma both above and below his diaphragm in January 2013.
Madison County Circuit Court case number 13-L-437