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$3 Million Asbestos Settlement Overturned on Appeal

Molly Stubbs

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— Updated on May 5, 2020

$3 Million Asbestos Settlement Overturned on Appeal

In January 2020, the Fourth District Appellate Court of Illinois overruled a previous $3.2 million settlement awarded by a jury verdict against roofing material manufacturer, Tremco, Incorporated. In a decision delivered by Justice Thomas Harris—with concurrences from Justices Robert Steigmann and John Turner—the court found the defendant, Tremco Inc., was “entitled to a judgment notwithstanding the verdict,” after determining inadequate evidence of causation offered by the plaintiff.

The Original Trial

The original 2017 trial dealt with claims of wrongful death, survival, and loss of consortium by the estate of Willard Krumwiede against Tremco, Inc. Krumwiede was a window glazier who had used Tremco-manufactured products over the course of his career. The lawsuit claims these products contained asbestos which directly caused Krumwiede to develop mesothelioma, from which he ultimately died.

Within the complaint, the plaintiff contended negligence by the defendant for failing to provide any kind of warning that their products could give off dust containing asbestos fibers or that these fibers can directly lead to “serious disease and death.” The complaint further claimed negligence by the defendant’s failure to give safe handling instructions along with products that could contain asbestos. Specifically, the plaintiff stated that Krumwiede had been exposed to two Tremco products containing asbestos fibers: “404 Tape” and “Mono caulk.”

At the conclusion of the trial, the jury sided with the plaintiff and awarded a settlement for damages valued at nearly $5.1 million. This was later lowered to $3.2 million after Tremco filed a post-trial motion seeking setoff based on other settlement amounts the plaintiff had already received.

On Appeal

After the trial court declined Tremco’s request for a judgment notwithstanding the verdict and a new trial, the company pivoted its efforts to the Fourth District Court of Appeals. Tremco argued that the plaintiff had not shown adequate evidence of the circumstances in which Krumwiede could have been exposed to asbestos fibers, if its product did, in fact, release breathable asbestos. Tremco contended that there was no evidence of Krumwiede’s “frequency, regularity, and proximity,” to asbestos released by the tape or caulk products that could reliably prove causation of his mesothelioma.

The appeals court ultimately agreed with Tremco’s argument and overturned the trial court’s verdict. In their opinion, the appeals panel explained that while there was evidence that Tremco products could release asbestos fibers, the plaintiff had not suitably proven this to be the obvious cause of Krumwiede’s illness or death.

Failed to Prove Causation

The appeals panel first addressed Tremco’s claims that the plaintiff’s medical expert witness presented “unsubstantiated and speculative” testimony on asbestos release from various products. The court disagreed, given the expert’s 40 years of experience working with asbestos cases similar to the one at hand. The court concluded that Tremco’s products were capable of releasing asbestos fibers, also pointing to Tremco’s own representative’s testimony that he “could not rule out” the possibility of asbestos release from the company’s products.

But, the court notes that their finding that Tremco products could release asbestos fibers did not, “end our inquiry” into the substantial factor causation of the plaintiff’s mesothelioma. Further, the court agreed that the plaintiff had demonstrated Krumwiede’s close proximity to Tremco’s tape and caulk in his work as a window glazier. However the court ruled that the plaintiff had fallen short of proving Krumwiede’s “ frequent, regular, and proximate” exposure to airborne asbestos fibers released from those products. The court deemed this a “speculative and conjectural” conclusion to reach from the evidence as presented by the plaintiff.

The court also signaled their accordance in response to the plaintiff’s appeal arguments that there was no requirement to demonstrate volume, “of asbestos fibers to which decedent was exposed to prove causation.” But the court also asserts that the plaintiff needed to demonstrate beyond a “de minimis” exposure to asbestos from Tremco products. The courts explained that the plaintiff’s argument had not shown that Krumwiede’s exposure was greater than minimal contact with asbestos fibers released from Tremco products in the course of his work as a window glazier.

The court also took issue with the plaintiff’s medical expert relying on a cumulative theory of asbestos exposure. The court found that this stance is not enough to prove causation nor does it adhere to Illinois law requiring proof of a substantial contributing factor of causation. Further, this cumulative theory of exposure as the causation of Krumwiede’s illness fails to account for other sources of asbestos that he could have been exposed to in his line of work.

In considering the provided evidence and weighing the admissibility of expert testimony into the causal factors of the plaintiff’s mesothelioma, the court ultimately found issue with the trial court’s decision and ruled in favor of Tremco.

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