MADISON - ST. CLAIR RECORD

Saying it was “unable to decipher the jury’s inconsistent verdict,” a panel of the Fourth District Appellate Court has remanded an asbestos lawsuit on the plaintiff’s negligence claim.

In an unpublished order handed down Wednesday, the appellate court reversed in part and affirmed in part McLean County Circuit Judge Scott Drazewski’s ruling in a suit Larry Dunham brought against Honeywell International Inc. and several other companies.

The appeals panel determined that while Drazewski erred in granting Honeywell’s motion for judgment notwithstanding the verdict (n.o.v.) on the Dunham’s negligence claim, he properly granted the defendant judgment n.o.v. on the plaintiff’s civil conspiracy claim.

In 2008, Dunham sued Honeywell, claiming he developed mesothelioma as a result of being exposed to asbestos during his career as a Springfield firefighter.

Dunham’s suit against Honeywell --the only defendant to this appeal --included counts for negligence and civil conspiracy.

He claimed that Honeywell knew asbestos exposure caused mesothelioma, but failed to warn him about the dangers and that it, along with the other corporations, agreed to withhold information about the effects of asbestos.

Following trial, a jury in 2010 returned a verdict against Honeywell on both claims and awarded Dunham $0 in compensatory damages and $700,000 in punitive damages.

Agreeing that the verdict couldn’t stand because the jury awarded punitive damages but not compensatory damages, both parties filed post-trial motions.

Honeywell asked the lower court to grant it judgment n.o.v., or in the alternative, a new trial. Dunham, however, argued that the court should grant him judgment n.o.v. or grant a new trial on damages or on all issues.

Drazewski agreed with the defendant and granted it judgment n.o.v. on both the negligence and conspiracy claims, spurring Dunham to appeal.

In its analysis, the Fourth District Appellate Court first notes that it agrees with both parties that the jury’s award of $0 for compensatory damages and $700,000 for punitive damages can’t stand.

Justice Lisa Holder White delivered the court’s order and Justices Robert Steigmann and James Knecht concurred.

Holder White wrote for the court that “Illinois does not recognize a cause of action for punitive damages alone; thus, a plaintiff can be awarded punitive damages only where actual damage is shown.”

The panel then turned its analysis to the dispute over what the appropriate post-trial relief is in light of the jury’s verdict.

While Dunham contended that the trial court should have entered a directed verdict in his favor, awarded a new trial or applied the doctrine of additur to the jury’s verdict, Honeywell argued that the court properly granted in judgment n.o.v.

To bolster support for its argument, Honeywell pointed to the 1991 decision in Kemner v. Monsanto Company.

In that case, a jury returned individual verdicts in favor of 63 plaintiffs, awarding them $1 for economic loss and $0 noneconomic loss. It also awarded $16 million in punitive damages.

The Fifth District Appellate Court in Kemner determined that the lower court abused its discretion by granting judgment n.o.v. to the defendants.

It held that because the jury found the plaintiffs suffered no actual damage and didn’t appeal the verdict, no underlying tort existed and as such, the verdict could not stand.

On behalf of the Fourth District Appellate Court, Holder White wrote that “We do not interpret Kemner as standing for the proposition that, in every instance in which a jury awards the plaintiff punitive damages but does not award compensatory damages, the trial court must grant judgment n.o.v. in favor of the defendant.”

“What Kemner makes clear,” she added, “is that when there is no underlying tort, an award for punitive damages cannot stand.”

Since Dunham appealed the lower court’s decision granting Honeywell judgment notwithstanding a verdict, Holder White wrote that the appellate court first had to determine if an underlying tort existed in the case supporting the punitive damage award.

In considering the jury’s verdict on Dunham’s negligence claim, Holder White wrote that the appeals panel was guided by the 1998 ruling in Kleiss v. Cassida and the 1995 decision in Tindell v. McCurley.

The juries in both Kleiss and Tindel returned verdicts for the plaintiffs, but didn’t award damages.

The trial court in Kleiss denied the plaintiffs’ motion for a new trial on damages, saying that jury’s award of zero damages was “crystal clear,” while the court in Tindell remanded for a new trial, explaining that it couldn’t tell whether the jury found liability based on the verdict form.

“We conclude the facts in this case are more like the facts in Tindell than those in Kleiss,” Holder White wrote. “The Kleiss court concluded the jury's intent to award zero damages was ‘crystal clear.’ We cannot say the same for the jury's intent in this case.”

She explained that the jury was told only to use verdict form A if it found for Dunham and against the defendant, but that the form “did not give the jury the option of indicating whether the finding in favor of Dunham was for negligence and/or conspiracy.”

“The jury elected to use verdict form A and to award punitive damages; thus, to conclude the jury actually found in favor of Honeywell, we would have to assume the jury ignored the court's instructions,” Holder White wrote for the panel.

“In sum,” she added, “we are unable to decipher the jury's inconsistent verdict, particularly in light of the conflicting testimony as to whether Dunham's exposure to brake dust caused his mesothelioma.”

Holder White further explained that the panel “cannot conclude that the evidence in this case so overwhelmingly favored Honeywell that no contrary verdict could ever stand” or that the evidence “so overwhelmingly favored Dunham that the court should have granted judgment n.o.v. in Dunham's favor.”

Saying that both sides gave the jury reasonable evidence to consider, the panel remanded for a new trial on Dunham’s negligence claim because “we would be making an ‘absolute guess’ in this case as to whether the jury found for Dunham or for Honeywell.”

Because the jury’s verdict was unclear, the panel determined that remanding for a new trial or using additur to award Dunham compensatory damages as he suggested would be inappropriate.