Illinois Appellate Court Reverses Denial of Dismissal of Party Defendant Based on Lack of Competent Testimony in an Affidavit

In December 2016, Arlin Campbell was diagnosed with mesothelioma, which is a disease attributable to exposure to asbestos. On May 4, 2017, Campbell, an Alabama resident, filed suit in the Circuit Court of Cook County alleging that his cancer (mesothelioma) was caused by his exposure to asbestos while working jobs in Illinois, Alabama, Louisiana and Texas between 1961 and 1999.

He named more than 50 companies as defendants. Among his several allegations, Campbell claimed that his exposure to asbestos involved products “manufactured, sold, distributed or installed” by the General Electric Co.  Campbell’s sole period of employment in Illinois was when he worked for Republic Steel in Chicago from 1964 through 1965.

General Electric moved to dismiss the case against it noting that in Campbell’s complaint, he did not specifically allege that he encountered asbestos from GE products while working at Republic Steel. GE argued that Campbell failed to allege sufficient facts to grant the court personal jurisdiction and noted that it did not consent to the court’s jurisdiction.

In response, Campbell argued that Illinois had “jurisdiction by necessity” as he was exposed to asbestos in multiple states and thus had no single forum in which all defendants could be sued.  Further, GE consented to jurisdiction by doing business in Illinois, and citing a discovery deposition Campbell gave, that GE manufactured the electric furnaces containing asbestos used to melt steel at Republic Steel.

GE filed an affidavit from Bryan Toll Jr. who oversaw the manufacturing of industrial furnaces at GE between 1959 and 1979. Toll alleged that no furnaces manufactured by GE met the description given by Campbell and that GE built no furnaces designed to melt steel.

The circuit court denied GE’s motion to dismiss; GE filed an interlocutory appeal.

On appeal, GE argued that the circuit court erred in denying its motion to dismiss based on lack of personal jurisdiction. In addition to denying that the court has jurisdiction by necessity or that it had jurisdiction based on GE’s business connections, GE argued that Campbell’s discovery deposition demonstrated that he could not competently testify at trial as to the manufacture of the furnaces.

In his deposition, Campbell first denied knowing who made the furnaces, but later “expressed his belief” that they were made by GE, despite admitting there was no indication of this on the premises.

In Campbell’s evidence deposition, he admitted he had no way of knowing who made the furnaces. Illinois Supreme Court Rule 191(a) requires that depositions used for the purpose of an affidavit “shall not consist of conclusions, but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.”

The Illinois Appellate Court agreed with General Electric. The court found that Campbell’s deposition indicated that he was not able to competently testify that his exposure to asbestos in Illinois stemmed from GE products.

In addition, the appellate court emphasized that there was no precedent for jurisdiction by necessity outside of dicta and that GE’s contacts in Illinois were not significant enough with respect to its total business to render it “at home” in Illinois, since it was incorporated in New York and its its principal place of business was in Massachusetts. Accordingly, the appellate court reversed and remanded the case with instructions to the trial court to enter an order dismissing GE as a party defendant.

Arlin Campbell v. Acme Insulations, Inc., et al., 2018 IL App (1st) 173051.

Kreisman Law Offices has been handling work injury lawsuits, catastrophic injury lawsuits, truck accident cases, forklift accident lawsuits, bicycle accident cases and asbestos exposure lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Melrose Park, Mundelein, Naperville, New Lenox, Orland Park, Palos Park, Palatine, Schiller Park, Tinley Park, University Park, Country Club Hills, Clarendon Hills, Chicago (Wicker Park, Garfield Park, Jefferson Park, Jackson Park, South Chicago, Lake Calumet, Sauganash, Rogers Park, Albany Park, Uptown, Lincoln Square), Highland Park, Highwood, Waukegan, Zion and Joliet, Ill.

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