Krik v. Crane Co., et al

MOTION

N.D. Ill.April 30, 2015

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS CHARLES KRIK, ) ) Plaintiff, ) ) v. ) Case No. 10-cv-7435 ) OWENS-ILLINOIS, INC. and ) EXXONMOBIL OIL CORP., ) ) Defendants. ) EXXONMOBIL OIL CORPORATION’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S CLOSING ARGUMENT NOW COMES the Defendant, ExxonMobil Oil Corporation (hereinafter, “Mobil”), and in support of its Motion to Strike Portions of Plaintiff’s Closing Argument, states as follows: I. Introduction This Court should strike the portions of the Plaintiff’s closing argument regarding the erection of the Joliet Mobil facility, including the materials used therein and any decisions related to the building of the facility. As the Mobil facility was built more than 40 years ago, any such argument is barred by the Illinois Construction Statute of Repose, 735 ILCS 5/13-214 (the “Statute”). Mobil therefore requests that this Court strike any portions of the Plaintiff’s closing argument pertaining to the materials used in building the refinery and instruct the jury that any such comments are not to be considered as evidence. Case: 1:10-cv-07435 Document #: 360 Filed: 04/30/15 Page 1 of 3 PageID #:9636 2 II. Plaintiff’s Closing Argument During his closing argument, the Plaintiff argued that Mobil should be held liable for its decision to use asbestos in building the Joliet refinery and that Mobil could have selected alternative insulation materials during construction. III. Argument As set forth in its Motion for Directed Verdict Regarding Premises Liability Claims (Dkt. 358), any arguments made by the Plaintiff in connection with construction work at the Joliet refinery is barred by the Statute. The Statute bars the Plaintiff’s claim with respect to “allowing” the use of asbestos-containing materials, providing in pertinent part as follows: No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after ten years have elapsed from the time of such act or omission. 735 ILCS 2/13-214(b) (West 1994). A plaintiff who discovers the act or omission before the ten years elapse, however, has four more years (the standard statute of limitations period for construction-related actions) in which to bring the action. Id. Thus, if a plaintiff discovers the act or omission on the last day of the ten-year repose period, he or she has an additional four years to file an action—a maximum total of fourteen years to sue after the alleged wrongdoing took place. In the present matter, the Joliet refinery was built more than 40 years ago, and any claims arising out of its erection are clearly arred by the Statute. Therefore, the Plaintiff’s arguments during closing that Mobil should be held liable for matter related to the erection of the refinery are wholly improper and should be stricken by this Court. Case: 1:10-cv-07435 Document #: 360 Filed: 04/30/15 Page 2 of 3 PageID #:9637 3 IV. Conclusion WHEREFORE, the Defendant, ExxonMobil Oil Corporation, prays this Honorable Court for the entry of an order striking any portion of the Plaintiff’s closing argument related to the materials used in building the Mobil refinery in Joliet, including any decisions made by Mobil or alternative options for insulating materials. This Defendant further prays this Honorable Court for an instruction to the jury that any such comments are not to be considered as evidence and for any other relief this Court deems reasonable and just, including the declaration of a mistrial. Dated this April 30, 2015. Respectfully submitted, /s/ David F. Fanning H. Patrick Morris – IL Bar #6187083 David F. Fanning – IL Bar #6274895 Attorneys for ExxonMobil Oil Corporation Johnson & Bell, Ltd. 33 W. Monroe St., Suite 2700 Chicago, IL 60603 Telephone: 312/372-0770 Fax: 312/372-9818 morrisp@jbltd.com fanningd@jbltd.com CERTIFICATE OF SERVICE The undersigned certifies that on April 30, 2015, the foregoing was served upon all parties via ECF. By /s/ David F. Fanning H. Patrick Morris – IL Bar #6187083 David F. Fanning – IL Bar #6274895 Attorneys for ExxonMobil Oil Corporation Johnson & Bell, Ltd 33 West Monroe St., Suite 2700 Chicago IL 60603 morrisp@jbltd.com Case: 1:10-cv-07435 Document #: 360 Filed: 04/30/15 Page 3 of 3 PageID #:9638