Estate of Lilienthal v. Ill. Cent. R.R. Co.

2015 IL App (4th) 140280-U

In re: the Estate of JACOB LILIENTHAL, Deceased,JANE LILIENTHAL, Individually and as Special Administratrix, Petitioner-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Respondent-Appellant.

NO. 4-14-0280

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

March 17, 2015

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of McLean County

No. 05L34

Honorable Paul G. Lawrence, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Justices Knecht and Appleton concurred in the judgment.

ORDER

¶ 1 Held: The appellate court found the trial court did not err in (1) denying respondent's request for an itemized verdict, (2) instructing the jury, (3) denying the motion for judgment notwithstanding the verdict, and (4) admitting certain evidence.

¶ 2 In February 2005, petitioner, Jane Lilienthal, individually and as special administratrix of the estate of Jacob Lilienthal, filed a complaint against respondent, Illinois Central Railroad Company (Illinois Central or railroad) and other defendants, to recover damages for personal injuries allegedly sustained by Jacob as a result of exposure to asbestos. In June 2013, a jury rendered a verdict for petitioner and against Illinois Central. In March 2014, the trial court entered judgment for petitioner in the amount of $1,357,143.87.

¶ 3 On appeal, Illinois Central argues the trial court erred in (1) denying a request for an itemized verdict, (2) instructing the jury, (3) denying its motion for judgment notwithstanding the verdict, and (4) admitting certain evidence. We affirm.

¶ 4 I. BACKGROUND

¶ 5 Jacob Lilienthal worked as a laborer and machinist for Illinois Central and its predecessor, Gulf, Mobile & Ohio Railroad (GM&O), from 1957 to 1992 at railroad facilities in Bloomington, Illinois (1957 to 1972); Paducah, Kentucky (1972 to 1986); and Homewood, Illinois (1986 to 1992).

¶ 6 In February 2005, Jacob Lilienthal and his wife, petitioner, filed a complaint against Illinois Central and other nonrailroad defendants, seeking damages for the pulmonary fibrosis Jacob allegedly developed from exposure to asbestos. The complaint alleged a claim under the Federal Employers' Liability Act (FELA) (45 U.S.C. §§ 51 to 60 (2000)) and other common-law claims against the nonrailroad defendants. Jacob subsequently developed lung cancer and died in November 2009. Petitioner, as administratrix of her husband's estate, continued to pursue the FELA claim against Illinois Central, alleging Jacob's lung cancer resulted from exposure to asbestos during his work at the railroad.

¶ 7 In June 2013, petitioner's FELA claim against Illinois Central proceeded to a jury trial. Dr. Barry Castleman, a consultant in the field of toxic-substances control, testified to the history of asbestos in various industries, along with studies as to the dangers of its use. As to the railroad industry, Castleman testified to his review of records, including those of proceedings held by the Association of American Railroads beginning in the 1930s. In 1935, a meeting of railroad physicians detailed the ability of asbestos to cause disease and the protective measures that could be used. He thought it was "fair to say that the railroad industry doctors certainly understood what asbestosis was in the 1930s." He had not seen any documentation of any railroad in the 1930s, 1940s, or 1950s telling workers about the hazards of asbestos.

¶ 8 Dr. Arthur Frank, a physician in the area of occupational medicine, testified to thehazards of asbestos and the potential for asbestos exposure to cause disease, including asbestosis. He stated asbestosis is "a scarring of the lung." Asbestos is a cause of lung cancer, as is cigarette smoking. Dr. Frank agreed cigarette smoking causes chronic obstructive pulmonary disease (COPD).

¶ 9 Charles Garrett, the risk-mitigation manager for Illinois Central, testified to the railroad's corporate history, including its merger with GM&O in 1972. He had not seen any documents from the railroad from the 1930s to the 1970s telling workers about the hazards of asbestos. He believed the railroad was aware of a disease called asbestosis caused by asbestos as early as the mid-1930s but not for railroad workers. Garrett stated his belief that it was in 1958 when the railroad had information that exposure to asbestos could cause lung cancer.

¶ 10 Garrett testified to the different products used by the railroad that may have contained asbestos, including rope, siding, brakes, cements, and insulation. He stated Jacob Lilienthal worked as a laborer in the Bloomington storeroom and as a machinist in Bloomington, Paducah, and Homewood. Although Garrett had no direct knowledge of Jacob's employment duties, he knew Jacob had testified to sweeping in Bloomington. Working in the storeroom, Jacob could have been exposed to asbestos gaskets, cloth, pipe covering, and brakes. As a machinist, Jacob had testified to using gaskets and packing.

¶ 11 Over objection, petitioner's counsel asked Garrett about GM&O's lease of a portion of its Bloomington facilities to Union Asbestos and Rubber Company (UNARCO) starting in 1951. Garrett was not aware of what the railroad knew about UNARCO's planned operation.

¶ 12 Windell Kessinger testified he worked as "a clean-up man" at UNARCO for several months in 1960. He stated boxcars full of bags of asbestos would arrive and, whenbroken or opened, dust would "be all over the place." Kessinger stated he would leave work at the end of his shift and find his car with "fibers all over it."

¶ 13 Mike McGowan testified he worked for the railroad in Bloomington from 1959 to 1973, in Paducah from 1973 to 1986, and then in Homewood. He knew Jacob Lilienthal, who worked in the storeroom and delivered gaskets, brake shoes, or oil to the different shops. McGowan worked with asbestos sheets to shield locomotives from heat when using a torch. Cutting the sheets often left dust that was swept up by laborers. He stated the railroad also used asbestos gaskets, brake shoes, cloth, and packings. He saw asbestos brakes, gaskets, and packings in Paducah as well. During his employment, the railroad never gave him any information that asbestos could be harmful to his health. On cross-examination, McGowan testified Jacob smoked during his career and in his retirement.

¶ 14 Dr. William Houser, a lung specialist, testified he evaluated Jacob Lilienthal in 2003 at the request of his attorneys. At that time, when Jacob was 64 years old, he complained about being short of breath for several years. Jacob told Dr. Houser that he had smoked "generally one pack per day" for 45 years. Jacob also told Dr. Houser about his work at the railroad, including his work with asbestos gaskets and insulation. Dr. Houser opined Jacob had severe COPD caused by cigarette smoking and exposure to respirable dust from his railroad employment. He also opined Jacob's exposure to asbestos during his railroad employment was a cause of his lung cancer.

¶ 15 Robert Winstead, a former GM&O employee, testified he recalled seeing dust from the neighboring UNARCO facility blowing around the railyard during the 1950s and 1960s. During his employment, Winstead never directly worked with materials containing asbestos.

¶ 16 Following the close of petitioner's case, defense counsel moved for a directedverdict, which the trial court denied. For the defense, Duane Amato, a certified industrial hygienist, testified to industrial hygiene standards applicable during Jacob Lilienthal's employment at the railroad, including the recommended threshold limit value (TLV) and permissible exposure limit (PEL) for exposure to asbestos. He opined that general industry should have known in 1955 that there was an increased risk of lung cancer associated with asbestos. He also stated 1950s asbestos manufacturers advertised their products as nontoxic and safe for workers. He stated the retirement of the steam locomotive in the 1950s and 1960s greatly reduced the use of asbestos in the railroad industry. Amato testified regarding industrial-hygiene surveys conducted in the early 1980s at various Illinois Central facilities, including Paducah, which found no unsafe levels of asbestos. Based on all relevant facts, Amato opined Jacob's claimed exposures to asbestos "would have never exceeded any TLV or PEL at any time." He also gave his opinion to a reasonable degree of certainty in the field of industrial hygiene that GM&O and Illinois Central provided Jacob with a reasonably safe workplace.

¶ 17 The videotaped depositions of Dr. Paul Wheeler and Dr. Lee Sider were played for the jury. Dr. Wheeler, a diagnostic radiologist, testified pneumoconiosis is a "scarring of the lungs caused by inhaling very finely ground microscopic inorganic dusts" such as asbestos. He reviewed Jacob Lilienthal's X-rays and computed tomography (CT) scans and found no evidence of pneumoconiosis. Dr. Wheeler stated the CT scan showed emphysema, which he opined was caused by smoking. Dr. Wheeler also opined Jacob "had no radiographic evidence of asbestosis." While Wheeler's review of the films confirmed a lung mass consistent with lung cancer, he opined there was a "high likelihood" it was related to smoking. Dr. Sider, board certified in diagnostic radiology, testified he reviewed Jacob's X-rays, CT scans, and positron emission tomography scan. Dr. Sider opined Jacob had lung cancer, but he saw no radiographicevidence consistent with pneumoconiosis.

¶ 18 Dr. Mark Wick, a physician and pathologist, testified he reviewed Jacob Lilienthal's pathology materials and medical records. He found no objective evidence to support the diagnosis of asbestosis. Dr. Wick opined to a reasonable degree of medical certainty that Jacob had COPD and lung cancer, both caused by tobacco smoke inhalation.

¶ 19 At the close of all the evidence, defense counsel renewed his...