Five Million Dollar Verdict Against Caulk and Tape Manufacturer Reversed for Lack of Evidence of Substantial Factor Appellate Court of Illinois, Fourth District, January 21, 2020

ILLINOIS – The plaintiffs brought suit against more than 50 defendants alleging their decedent, Willard Krumwiede, developed and passed from mesothelioma as a result of occupational exposure to asbestos for which the defendants were liable. Specifically, the plaintiffs contended that Krumwiede was exposed to asbestos tape and caulk made by Tremco. Both products were purported to contain chrysotile fibers. According to the plaintiffs, Krumwiede used the products during his career as a window glazer where he installed panes of glass into wood and aluminum frames. Two co-workers testified as to the plaintiff’s use of Tremco’s 440 Tape and Mono Caulk throughout the 1960’s and 1970’s. At trial, the plaintiffs relied on expert testimony of Drs. Arthur Frank and John Migas. Dr. Frank testified that “there is no such thing as an amount of exposure that doesn’t contribute to one’s cumulative exposure.” Dr. Frank also took the position that all asbestos-containing products release fibers when worked with. As for respirable fibers, Dr. Frank opined that respirable fibers mean those that get into the lung. Dr. Migas testified as to his treatment of the plaintiff’s colon cancer, including chemotherapy. He also testified that exposure to asbestos can cause mesothelioma. On cross, he admitted that he had not treated the plaintiff for his mesothelioma. Tremco relied on forensic pathologist, Dr. Michael Graham. Dr. Graham testified as to the plaintiff’s various medical issues. He also testified that the plaintiff’s autopsy revealed high levels of amosite fibers. Further, he discussed the “controversy” of whether chrysotile fibers can cause mesothelioma. Dr. Longo confirmed for Tremco that its products had approximately 22 percent chrysotile asbestos. The jury returned a $5 million dollar verdict against Tremco. Tremco filed a post-trial motion for judgment notwithstanding the verdict.

On appeal, Tremco argued that:

  1. The plaintiffs failed to establish causation as they did not offer any evidence that its products put off respirable asbestos fibers
  2. That even if they did, the plaintiffs failed to prove that Krumwiede was exposed with “frequency, proximity and regularity” as to any Tremco product

As for the release of respirable fibers, the court quickly disagreed with Tremco. Although Dr. Frank’s opinion in a separate case may have been found to be speculative, this case was different. Dr. Frank’s opinion regarding fiber release was based on his experience of testing products at issue in this case. The court disagreed with Tremco’s position that Dr. Frank’s opinion was mere speculation and therefore found that Tremco’s products were capable of releasing asbestos fibers. The court noted that the inquiry did not end with the respirable nature of the products and began an analysis of Tremco’s argument that the plaintiffs had failed to establish substantial factor causation. Relying on the Thacker case, the court reminded that a plaintiff needs to show exposure to a specific defendant’s product with frequency, regularity, and proximity to prove substantial factor as a cause of the injury. Dr. Frank’s testimony showed that Tremco’s products could release respirable asbestos fibers. However, there was no evidence that Krumwiede breathed asbestos fibers from a Tremco product according to the court. Without such evidence, it was nothing more than “conjecture to conclude from the evidence presented that respirable asbestos fibers were released from Tremco’s products…” Finally, the court also noted that Dr. Frank’s opinions failed to aid the plaintiffs in meeting the substantial factor test under Illinois law. Consequently, the trial court’s judgment was reversed.

Read the case decision here.