[co-author: Michael Hopkins]

On January 21, 2020, the Fourth District Appellate Court reversed a $3.2 million asbestos jury verdict, holding Tremco, Incorporated (Tremco) was entitled to judgment notwithstanding the verdict where Plaintiff presented insufficient evidence of causation. Krumwiede v. Tremco, Inc., 2020 IL App (4th) 180434.

Jeff Krumwiede (Decedent), a window glazier, developed mesothelioma after 40 years of alleged occupational exposure to asbestos fibers allegedly released from Tremco’s tape and caulk products. Decedent’s widow and estate (Plaintiffs) subsequently filed suit against Tremco, asserting wrongful death, survival, and loss of consortium claims. Specifically, Plaintiffs’ alleged Tremco (1) negligently failed to warn that exposure to its asbestos-containing products caused serious disease or death, malignancies, and pulmonary fibrosis, and (2) failed to provide instructions as to how to safely handle and process its asbestos-containing products. At the trial’s conclusion, the jury returned a judgment of $5.1 million verdict in favor of Plaintiffs.

Tremco filed a post-trial motion seeking a judgment notwithstanding the verdict or in the alternative, a new trial on all the issues, which the trial court denied. Alternatively, Tremco sought a setoff for amounts that Plaintiffs received from other settlements, which the court granted and entered a modified judgement in the amount of $3,272,083.31. Tremco appealed the denial of the judgment notwithstanding the verdict arguing Plaintiffs failed to present sufficient evidence to prove its products were a substantial factor of causation under the Thacker “frequency, regularity and proximity” test. See Thacker v. UNR Indus., Inc., 151 Ill. 2d 343, 359, 603 N.E.2d 449, 457 (1992).

The Fourth District reversed the trial court’s verdict, holding Plaintiffs failed to meet their burden of establishing Decedent was exposed to asbestos fibers from Tremco products, or that such exposure was a substantial factor in causing Decedent’s mesothelioma. Specifically, the court held that while Plaintiffs’ evidence demonstrated that Decedent was in frequent, regular, and proximate contact with Tremco’s asbestos-containing products, there was no evidence established that the activities engaged in by the Decedent when working as a window glazier with Tremco’s products caused the release of asbestos fibers or that the products released asbestos fibers in such amounts that Decedent had more than de minimis, causal or minimum contact with asbestos from Tremco’s products. The Court held that while Plaintiffs need not quantify the exact number of asbestos fibers Decedent inhaled to prove causation, Plaintiffs must show more than “de minimis, casual, or ‘minimum’ contact with asbestos from Tremco’s products.”

Finally, the court addressed Tremco’s argument that Plaintiffs’ expert’s testimony, which was based on a “cumulative exposure” theory, violated Illinois precedent because it was the equivalent of the rejected “each and every exposure” causation theory. Plaintiffs countered that their expert’s opinion was that a disease such as mesothelioma is a result of “total and cumulative exposure” to asbestos, and “it is scientifically impossible to separate each exposure and say exposure A contributed to the person’s total dose, but exposure B did not.” While the Court ultimately found the “cumulative exposure” theory was not the equivalent of the “each and every exposure” theory,” the Court also opined that Plaintiffs’ expert’s testimony failed to aid plaintiffs in meeting the substantial factor test under Illinois law.

The Court held that Tremco was entitled to judgment notwithstanding the verdict due to the “lack of evidence showing that decedent’s exposure to respirable asbestos fibers from Tremco’s products on a frequent, regular, and proximate basis was a cause in fact in bringing about decedent’s mesothelioma.”