Illinois Appellate Court Reverses Dismissal of Mesothelioma Death Case Based on Direct Evidence of Exposure

The on-the-job exposure to asbestos experienced by Ronnie Startley occurred in Alabama. Startley was a drywall finisher. However, for 3 to 4 months in 1965, he worked on approximately 50 jobs in Chicago with his cousin, Walter Startley. The Startleys used several brands of drywall joint compound that contained asbestos. Startley was diagnosed with mesothelioma in 2013; he died a year later in Alabama. The Alabama statute of limitations blocked Startley’s estate’s claims there.

According to Walter Startley’s testimony, during an evidence deposition in the Illinois lawsuit that Ronnie’s estate filed against Welco Manufacturing Co., the manufacturer of Well-Coat, the joint compound they used for Chicago projects in 1965 were “USG, Gold Bond, Best Wall, and Wel-Coat.” He added, “Wel-Coat and Best Wall was the most we used.”

When Walter was asked whether he could recall having more jobs with “one product more than the other,” Walter said, “Well, I really can’t, because that’s a long time ago, but I remember the bags was being like gray-looking stuff and I imagine it would be Wel-Coat or Best Wall.”

After seeing a photograph, Walter testified that the Best Wall bags were “lighter color brown or something.” The trial judge denied Welco’s summary judgment.

During the jury trial, Walter’s evidence deposition was played for the jury, minus the statement that “Wel-Coat and Best Wall were the most we used.”

When the estate finished presenting its evidence, the judge granted Welco’s motion for a directed verdict based on the “frequency, regularity and proximity” test adopted by Thacker v. UNR Industries, 151 Ill.2d 343 (1992).

Reversing, the Illinois Appellate Court considered conflicting cases from other jurisdictions that “applied the frequency, regularity and proximity test to similarly vague testimony.”

“Because of the [Startley] estate’s experts testified that relatively low levels of exposure contribute to causing mesothelioma,” Justice P. Scott Nevelle, Jr. explained, “a jury could find the exposures to Wel-Coat in Illinois constituted a major factor in causing [Ronnie’s] injury.”

The Thacker court held that, if a plaintiff seeks to recover damages from a manufacturer because a worker has contracted an asbestos-related disease, the plaintiff must show that “(1) the injured worker regularly worked in an area where the defendant’s asbestos was frequently used and (2) the injured worker did in fact, work sufficiently close to this area so as to come into contact with the defendant’s product.”

The Thacker court called this approach the “frequency, regularity and proximity” test.

In this case, Ronnie developed mesothelioma after repeated exposure to asbestos. Although Walter could not say how frequently he and Ronnie used Wel-Coat for their work in Illinois, he testified that they used it on some of their jobs. In the deleted portions of the evidence deposition, Walter testified that they used the Best Wall and Wel-Coat more than other brands, while in the deposition shown at trial, Walter said only he “imagined” they used Best Wall and Wel-Coat more.

Because the Startley estate’s experts testified that relatively low levels of exposure (to asbestos) contributed to causing mesothelioma, here, as in the case of Tragarz v. Keen Corp., 980 F.2d 411 (7th Cir. 1992), a jury could find the exposures to Wel-Coat Illinois constituted a substantial factor in causing the injury. Accordingly, the Illinois Appellate Court reversed the court’s directed verdict finding and returned the case to the trial court for further disposition.

Startley v. Welco Manufacturing Co., 2017 IL App (1st) 153649 (May 9, 2017).

Kreisman Law Offices has been successfully handling asbestos exposure lawsuits, chemical exposure cases, diesel fume injury lawsuits, pharmaceutical defect lawsuits and wrongful death cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Kenilworth, Marionette Park, Westchester, Bolingbrook, Joliet, Romeoville, Calumet City, Arlington Heights, Orland Park, Yorkville, Cicero, Dolton, Northbrook, Aurora, Geneva, St. Charles, Wheaton, Waukegan, Chicago (Archer Heights, Garfield Park, Irving Park, Mayfair, Edgebrook, Rogers Park, Edgewater, Lincoln Square, Roscoe Village, Bronzeville, Kenwood, Oakland, Washington Park, South Chicago, East Side, Lake Calumet, Pill Hill, Pullman), Oak Lawn, Oak Forest and Park Forest, Ill.

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