SPRINGFIELD - The Fourth District Appellate Court has vacated two McLean County asbestos conspiracy verdicts, remanding them for new hearings on whether the defendant's expert should be compelled to appear at trial.
In both cases decided last year, McLean County circuit judges entered default judgment against Honeywell after the company failed to comply with an order to produce Joel Charm - a product safety consultant who was formerly employed by Honeywell - as a trial witness.
Justice Robert Cook wrote in the opinion released Feb. 2 that the trial judges and the parties failed to address whether Charm was Honeywell's officer, director, or employee and if a court rule - Rule 237(b) - compelling witnesses to appear applied to Charm.
"As the parties' arguments failed—and continue to fail—to address the crucial issue of the Rule 237(b) analysis...we find no sufficient basis for the trial court to have ruled in favor of either party in these cases," Cook wrote.
Justice Thomas Appleton and John McCullough concurred.
"We decline to address the question of whether Charm was Honeywell's employee before the court in each of these cases has ruled on it and without pertinent argument from the parties," Cook wrote.
Both cases involved asbestos-related deaths. Family members settled suits with all corporate defendants except Honeywell – which they took to trial in April and June 2011.
On the first day of trial in one of the cases, Honeywell lawyer Gary Zimmerman of Chicago told Circuit Judge Paul Lawrence that Charm "has unequivocally stated he will terminate his contract with Honeywell rather than be obligated to travel any significant distance to testify, including being obliged to travel to Illinois to testify."
According to court documents, Charm had previously testified at 22 trials in Bloomington.
On April 7, three days into the trial, Lawrence directed a verdict for plaintiff Vickie Hoogerwerf.
The next day, jurors determined Honeywell owed Vickie Hoogerwerf $2.95 million for the wrongful death of husband John Hoogerwerf, $1.07 million for his expenses and $300,000 for her losses.
In the other case, plaintiff Antoinette Legate and her husband Guy Legate sued Honeywell and other corporate defendants for damages allegedly resulting from Guy's asbestos exposure.
On the first day of the Legate trial, June 6, Honeywell disclosed that Charm would not appear at trial in that case. Circuit Judge Scott Drazewski entered default judgment against Honeywell and for Anoinette and Michael on the issues of liability and causation.
The parties later stipulated that plaintiffs would have proved damages against Honeywell in the amount of $250,000 for Antoinette and $500,000 for Michael.
Two earlier Fourth District Appellate Court decisions upended McLean County conspiracy verdicts in suits against Honeywell.
In December, three justices found Circuit Judge Scott Drazewski should have rejected a jury's $5.5 million award to three widows.
"The record contains no evidence defendant entered into an agreement with any other corporation to falsely assert asbestos was safe or to keep quiet about the dangers of asbestos, although the record contains evidence defendant, on its own, did those things," Justice James Knecht wrote.
The widows, whose husbands worked at Unarco asbestos plant in Bloomington, had all won separate jury verdicts years ago.
Honeywell secured new trials at the Fourth District, and Drazewski consolidated the three cases for a single trial in 2009.
Jurors awarded $2.4 million to Doris Dukes as widow of Merlon Dukes, $1.86 million to Ruth Watkins as widow of John Watkins, and $1.3 million to Judy Blessing as widow of Robert Blessing.
Honeywell appealed again to the Fourth District, where a panel had already taken up an appeal of a $2.5 million verdict against Honeywell and Pneumo-Abex.
In that case, Drazewski reduced Juanita Rodarmel's compensatory damages from $2 million to $183,333, after subtracting settlements of other defendants.