On September 5, 2018, the Appellate Court for the Fourth District of Illinois introduced heightened standards for plaintiffs to establish duty and causation in asbestos litigation through its reversal of a McLean County trial court’s decision denying a defendant’s motion for judgment notwithstanding the verdict. McKinney v. Hobart Bros. Co., 2018 IL App (4th) 170333, appeal denied, 116 N.E.3d 948 (Ill. 2019). In McKinney, the plaintiff sued Defendant Hobart Brothers Company (“Hobart”) alleging his eight-month workplace exposure to Hobart’s asbestos-containing welding rods in 1962 and 1963 caused his mesothelioma. The welding rods at issue allegedly contained asbestos fibers that were encapsulated. The plaintiff also alleged exposure to asbestos-containing automotive products that occurred during the course of his forty-year mechanic career. In reversing the trial judgment, the McKinney Court addressed three issues of expert testimony admissibility under Rule 213 and ultimately tightened the reins on exposure claims involving encapsulated asbestos fibers by requiring industry knowledge of harm for the manufacturer’s product at issue before imposing a duty and ushering in the “substantial factor” test for causation.
Regarding expert testimony admissibility under Rule 213, the McKinney Court first held that the evidence deposition testimony of the plaintiff’s controlled expert Dr. Frank did not violate Rules 213(f)(3)(ii) and 213(g) because although Dr. Frank’s testimony that Hobart’s welding rods released asbestos fibers was not in the plaintiff’s expert disclosure, such testimony was a logical corollary to the plaintiff’s expert disclosure language that Dr. Frank would testify the mesothelioma at issue was caused by asbestos exposure to products from all defendants. Second, McKinney held the trial court did not abuse its discretion by allowing Dr. Frank to rely on another expert’s work concerning welding rods because Hobart, by failing to challenge Dr. Frank’s reliance, conceded the “customariness and reasonableness” of such reliance. Third, the McKinney Court held that defendants may use impeachment evidence introduced by plaintiffs, including reports by non-testifying experts, without fear of waiving its prior, overruled hearsay objection and the court using said impeachment evidence as competent evidence in its decision for a judgment notwithstanding the verdict.
Of most importance for the asbestos and product liability litigation landscape, the Fourth District held a plaintiff’s showing that knowledge existed in the industry that asbestos was harmful does not suffice to establish the defendant had a duty to warn. Here, the plaintiff failed to show Hobart had a duty to warn the plaintiff that its welding rods may be hazardous because it was unknown to the industry Hobart belonged that its welding rods could release encapsulated asbestos fibers. The McKinney Court emphasized that the record contained “no evidence” showing there was contemporaneous knowledge, and the resulting lack of duty entitled Hobart to a judgment notwithstanding the verdict.
The McKinney Court further held that Hobart was entitled to a judgment notwithstanding the verdict because the plaintiff failed to show exposure to Hobart’s welding rods were a “substantial factor” in causing his mesothelioma. The Court noted that although Thacker’s frequency, regularity, and proximity test is the prevailing causation standard in Illinois, “[p]roving merely that plaintiff came into frequent, close, and regular contact with welding rods manufactured by [Hobart] would not, on the logic of Thacker, prove substantial causation any more than proving he routinely walked on floor tiles containing asbestos would prove substantial causation.” In its discussion of causation, the Court emphasized how the plaintiff’s testimony revealed his work was below and “off to the side” of the workers using the welding rods at issue and there was no reference to “dust” or “asbestos dust”.
The McKinney Court’s holdings regarding duty and “substantial factor” causation are particularly meaningful for asbestos defendants in the Fourth District and any other court that adopts McKinney’s analysis. If a plaintiff cannot produce evidence of contemporaneous industry knowledge that a defendant’s product was harmful, that defendant ought to be entitled to a judgment as a matter of law. For nearly three decades, Illinois courts have merely required “frequency, regularity and proximity” to a defendant’s asbestos-containing products to establish causation. See Thacker v. UNR Indus., Inc., 151 Ill. 2d 343, 359, 603 N.E.2d 449, 457 (1992). McKinney distinguishes itself from prior causation requirements as it notes Thacker concerned raw asbestos product, while here, the plaintiff’s work concerned a product with encapsulated asbestos fibers—which would not necessarily release respirable fibers for the plaintiff to breathe. Under McKinney’s standard, plaintiffs—particularly those claiming exposure to products with encapsulated asbestos—must show something beyond frequency, regularity, and proximity to prove causation. They must prove they inhaled enough asbestos fibers from the product at issue so that the product was a material element and a substantial factor in bringing about the alleged injury.