SALLY LOUISE NOLAN, Indiv. and as Special Adm'x of the Estate of Clarence Nolan, Deceased, Plaintiff-Appellee, v. WEIL-McLAIN, Defendant-Appellant, 365 Ill. App. 3d 963

JUSTICE McCULLOUGH delivered the opinion of the court: Plaintiff, Sally Louise Nolan, as administratrix of the estate of her husband, Clarence Nolan (decedent), sued numerous manufacturers of asbestos-containing products, including defendant, Weil-McLain. Her complaint alleged the manufacturers were responsible for decedent’s injuries and later death. Before trial, all manufacturers but defendant settled or were dismissed. A jury returned a verdict against defendant, awarding plaintiff $2,368,000.

Defendant appeals, arguing that (1) the trial court erred by excluding evidence of decedent’s other exposures to asbestos; (2) the trial court erred by refusing to give a contributory-negligence instruction offered by defendant; and (3) remarks made by plaintiffs counsel during closing argument were so prejudicial as to require a new trial. We affirm. Initially, we note the trial court issued a 58-page order containing a meticulously detailed recitation of the evidence, findings, and conclusions. We recite only those facts necessary for an understanding of the issues to be resolved on appeal.

Decedent died on October 1, 2001, of complications from mesothelioma, an asbestos-related lung disease. At trial, decedent’s video-recorded deposition was played for the jury. He stated he began working as an apprentice plumber in 1952 and continued work as a plumber-pipefitter until his retirement in 1990. During his career, decedent installed, repaired, and removed boilers manufactured by defendant. At least a portion of the boiler components contained asbestos. Decedent had never seen a warning label affixed to defendant’s products concerning the dangers of asbestos.

Decedent did not know of the dangers of asbestos. Decedent’s son began work with his father in approximately 1972. They installed, repaired, and removed approximately 20 to 25 boilers manufactured by defendant. On March 3, 1988, decedent filed a lawsuit claiming he developed asbestosis as a result of his exposure to asbestos-containing products. Decedent did not name defendant in the lawsuit. Dr. James Hensold, decedent’s primary-care physician, diagnosed decedent with mesothelioma in July 2001. Decedent died on October 1, 2001. Dr.

Eugene Marks, plaintiffs expert pathologist, testified that all forms of asbestos cause mesothelioma. Further, there is no way to determine which of many asbestos exposures decedent suffered during his career caused decedent to develop mesothelioma. Dr. Marks stated mesothelioma has a latency period of 20 to 40 years. Further, the more asbestos a person is exposed to the greater the risk of developing mesothelioma. Dr. Marks opined that decedent’s exposure to defendant’s asbestos-containing products was a substantial cause of decedent developing mesothelioma and his resulting death. Dr.

Marks identified asbestosis as a separate and distinct disease from mesothelioma. Dr. Richard Lemen, plaintiffs expert epidemiologist, also testified that all forms of asbestos can cause mesothelioma. Dr. Lemen stated that the more asbestos a person is exposed to the greater the risk of developing a related disease. Frederick Boelter, an industrial hygienist and engineer, testified for defendant.

Boelter conducted multiple tests on four of defendant’s boilers, a single unit built in approximately 1952 and three units built after the Occupational Safety and Health Administration (OSHA) advised defendant of the dangers of asbestos. Boelter opined that the exposure levels of defendant’s asbestos-containing products were not significant and did not cause related disease. Dr. Robert Sawyer, a consultant in occupational and preventive medicine, testified for defendant. Although Dr.

Sawyer also testified that the more asbestos a person is exposed to the greater the risk of developing a related disease, he believed there is a threshold of exposure that may be absorbed before there is any measurable effect or risk. Dr. Sawyer acknowledged numerous studies indicating a relationship between increased exposure and increased risk of disease. Conversely, there is no epidemiological evidence that exposures below current permissible exposure limits posed any risk of developing mesothelioma. Dr. Sawyer did not believe that all forms of asbestos cause mesothelioma. Dr.

Sawyer referenced various studies finding no significant risk of postprocessing chrysotile asbestos causing mesothelioma. However, on cross-examination, Dr. Sawyer acknowledged he was not certain that the fiber type used in defendant’s asbestos-containing products was chrysotile asbestos. Further, Dr. Sawyer admitted many government agencies have found chrysotile asbestos can cause mesothelioma; no government agency has found chrysotile asbestos does not cause mesothelioma. Dr. Sawyer agreed decedent died of complications from mesothelioma and it was occupationally related.

At the close of testimony, the trial court stated: “The last item of evidence for the defendant, I believe, is an item of judicial notice that I’m going to read to you. You should accept this as evidence just as if it were testimony that were [sic] presented in open court.

The court takes judicial notice of the following: [Decedent] filed a lawsuit on March 3, 1988, claiming that he developing [sic] asbestos-related pleural disease and pleural calcification as a result of exposure to asbestos-containing products. [Defendant] was not a named defendant in that lawsuit.” The jury returned a verdict for plaintiff, awarding her $2,368,000 in damages on which the trial court entered judgment. Defendant filed a timely posttrial motion, which the court denied. This appeal followed.

Defendant first argues that the trial court erred by excluding evidence of decedent’s other exposures to asbestos. The court barred such evidence, relying on Spain v. Owens Corning Fiberglass Corp., 304 Ill. App. 3d 356, 710 N.E.2d 528 (1999), Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 610 N.E.2d 683 (1993), and Lipke v. Celotex Corp., 153 Ill. App. 3d 498, 505 N.E.2d 1213 (1987). We review this issue de novo. Spain, 304 Ill. App. 3d at 363, 710 N.E.2d at 534.

In Spain, Shirley Spain, as administratrix of her deceased husband’s estate, filed suit against several asbestos manufacturers, including the Owens Corning Fiberglass Corporation, alleging that the manufacturers were responsible for her husband’s asbestos-exposure injuries and resulting death. Prior to trial, all defendants with the exception of Owens Corning settled or were dismissed. Spain, 304 Ill. App. 3d at 358, 710 N.E.2d at 531. Owens Corning then moved in limine to be allowed to present decedent’s videotaped deposition testimony concerning decedent’s multiple asbestos exposures unrelated to Owens Corning.

The Spain court refused to admit this evidence pursuant to Lipke, another asbestos-related decision. In Lipke, the appellate court held a party “ ‘guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury.’ ” Lipke, 153 Ill. App. 3d at 509, 505 N.E.2d at 1221, quoting Sears v. Kois Brothers Equipment, Inc., 110 Ill. App. 3d 884, 889, 443 N.E.2d 214, 219 (1982). The Lipke court concluded that “the fact that plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries.

Evidence of such exposure is not relevant.” Lipke, 153 Ill. App. 3d at 509, 505 N.E.2d at 1221. The Spain court thus excluded evidence of decedent’s other asbestos exposures (Spain, 304 Ill. App. 3d at 365, 710 N.E.2d at 535), and this court upheld the trial court’s ruling (Spain, 304 Ill. App. 3d at 364-65, 710 N.E.2d at 534-35). In contrast, an entirely different set of circumstances shaped our supreme court’s decision in Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 658 N.E.2d 450 (1995).

In Leonardi, plaintiffs, as administrators of decedent’s estate, brought a medical-malpractice action against several defendants, seeking damages stemming from an improperly performed cesarean-section procedure. Prior to trial, decedent’s attending physician (a named defendant in the malpractice suit) died and his estate settled. The plaintiffs then moved in limine to bar evidence relating to the alleged negligence of any person other than the remaining named defendants. The court denied the motion and allowed evidence relating to the deceased attending physician’s standard of care.

Leonardi, 168 Ill. 2d at 90-92, 658 N.E.2d at 454-55. The appellate court upheld the court’s ruling. Leonardi v. Loyola University of Chicago, 262 Ill. App. 3d 411, 415-16, 633 N.E.2d 809, 812 (1993).

On appeal to the Illinois Supreme Court, the plaintiffs argued that the trial and appellate courts erred in denying their motion in limine predicated on the “common[-]law principle that there can be more than one proximate cause of an injury, and that a person is liable for his or her negligent conduct whether it contributed wholly or partly to the plaintiff’s injury as long as it was one of the proximate causes of the injury.” (Emphasis in original.) Leonardi, 168 Ill. 2d at 92-93, 658 N.E.2d at 455.

The Leonardi court held that the plaintiffs’ reliance on this principle was misplaced, as it “presumes that a defendant’s conduct is at least a proximate cause of the plaintiff’s injury.” (Emphasis in original.) Leonardi, 168 Ill. 2d at 93, 658 N.E.2d at 455. “In the present case, defendants denied that they were even partly a proximate cause of plaintiffs’ injuries. Rather, the defense theory was that [decedent’s deceased attending physician] was the sole proximate cause of [decedent’s] injuries.” Leonardi, 168 Ill. 2d at 93, 658 N.E.2d at 455.

The court concluded that “ ‘an answer which denies that an injury was the result of or caused by the defendant’s conduct is sufficient to permit the defendant in support of his position to present evidence that the injury was the result of another cause.’ ” Leonardi, 168 Ill. 2d at 94, 658 N.E.2d at 455, quoting Simpson v. Johnson, 45 Ill. App. 3d 789, 795, 360 N.E.2d 144, 148 (1977).

The Spain court clearly recognized the difference between the case before it and the situation presented in Leonardi, noting: “The Leonardi court found the Lipke standard inapplicable to medical[-]malpractice cases, but did not change the law governing asbestos cases. Because asbestos-related diseases cannot be linked to one fiber or a particular defendant, Illinois courts have long recognized the difficulty in determining whether a specific asbestos exposure caused or contributed to a person’s asbestos-induced injury or death.

Thus, to assist plaintiffs in proving proximate cause, the supreme court adopted the ‘frequency, regularity and proximity,’ or ‘de minimis,’ test in Thacker [v. UNR Industries, Inc., 151 Ill. 2d 343, 359, 603 N.E.2d 449, 457 (1992)].” Spain, 304 Ill. App. 3d at 364-65, 710 N.E.2d at 535, citing Kochan, 242 Ill. App. 3d at 790, 610 N.E.2d at 688-89. The case before us indisputably involves asbestos exposure rather than medical malpractice. Once a plaintiff satisfies the Thacker test, a defendant is presumed to be a proximate cause of a decedent’s asbestos injury. See Thacker, 151 Ill. 2d at 360, 603 N.E.2d at 457.

Illinois law then requires the trier of fact to independently evaluate whether the exposure was a substantial factor in causing decedent’s injury, thereby making evidence of other asbestos exposures irrelevant. Defendant can rebut the presumption by proving (1) decedent was not exposed to its product, (2) his exposure was insufficient to cause injury, or (3) its product contained too low an amount of asbestos to be hazardous. Spain, 304 Ill. App. 3d at 365, 710 N.E.2d at 535.

In this case, plaintiff presented evidence that decedent was exposed to defendant’s asbestos-containing products and the exposure was a substantial factor in causing decedent’s injuries and resulting death. Defendant presented evidence that decedent’s exposure was insufficient to cause injury and, further, defendant’s products contained too low an amount of asbestos to be hazardous. It was for the jury to assess the credibility of this testimony, weigh the evidence, and resolve any conflicts. See Durbin v. St. Louis Slag Products Co., 206 Ill. App. 3d 340, 356, 564 N.E.2d 242, 253 (1990).

The issue in this case is not whether there should be a presumption of causation if a plaintiff merely shows a decedent was exposed to defendant’s asbestos-containing products, but whether a reasonable jury could accept expert testimony that any exposure was a proximate cause of decedent’s injuries and resulting death. Based on our review of the evidence presented at trial, a reasonable jury could find decedent was exposed to defendant’s asbestos-containing products and, according to expert testimony, the exposure was a substantial factor in causing decedent’s injuries and resulting death.

Defendant similarly argues the trial court erred by refusing to admit discovery documents from the lawsuit decedent filed in 1988 as evidence of decedent’s other exposures to asbestos. In the earlier lawsuit, decedent claimed he developed asbestosis as a result of his exposure to asbestos-containing products. Decedent did not name defendant in the lawsuit. Defendant sought to introduce discovery documents presented in the earlier case as evidence of decedent’s other exposures to asbestos.

The court refused to admit the discovery documents, finding nothing in decedent’s video-recorded deposition in the instant case inconsistent with the discovery documents presented in the earlier lawsuit and, further, “no admissions either expressly or tacitly.” The court stated: “Here, [defendant sought to create the inference that the failure of decedent to list them in the 1988 lawsuit either impeached his credibility or constituted an admission by tacit omission. There was nothing about the questions or decedent’s responses which would have permitted that inference.” We agree.

The court did not err by refusing to admit the discovery documents from the earlier lawsuit as evidence of decedent’s other exposures to asbestos.

Defendant next argues that the trial court erred by refusing to give a contributory-negligence instruction offered by defendant. “Contributory negligence is defined as a lack of due care for one’s own safety as measured by an objective reasonable[-]person standard. [Citation.] The test of such negligence is not the frequency with which the act has been safely completed by others, but whether plaintiff, at the time of the occurrence, used that degree of care which an ordinarily careful person would have used for his or her own safety under like circumstances. [Citation.] Ordinarily, it is the jury’s responsibility to consider whether plaintiff’s actions amounted to contributory negligence [citation]; the question of contributory negligence is one of fact for the jury. [Citation.] Instructions regarding plaintiffs contributory negligence are not proper where there is no testimony or other evidence from which a finding of contributory negligence might be made. [Citation.] ‘The degree of evidence sufficient to establish contributory negligence must be determined from the facts of each case.’ [Citation.] Each party has the right to have the jury clearly and fairly instructed upon each theory supported by the evidence. [Citation.] Whether to give a jury instruction is within the discretion of the circuit court, and a new trial is granted where there has been a substantial deprivation of the right to a fair trial.” McCarthy v.

Kunicki, 355 Ill. App. 3d 957, 972-73, 823 N.E.2d 1088, 1101 (2005). In the present case, decedent testified that he worked as a plumber-pipefitter for more than 38 years, beginning in approximately 1952. During his career, decedent installed, repaired, and removed boilers manufactured by defendant. At least a portion of the boiler components contained asbestos. Decedent had never seen a warning label affixed to defendant’s products concerning the dangers of asbestos. Decedent did not know of the dangers of asbestos.

Defendant testified it did not know of the dangers of asbestos until approximately 1974 and, therefore, did not place warnings on its products. The trial court noted decedent “would have worked on or around [defendant’s boilers for 22 years before even [defendant] was aware of any hazard.” Although defendant testified it began affixing warnings on its products in approximately 1974, defendant did not produce “direct evidence” of this initiative. The court found insufficient evidence from which a finding of contributory negligence might be made.

The court did not abuse its discretion by refusing to give a contributory-negligence instruction offered by defendant. Defendant next argues that remarks made by plaintiffs counsel during closing argument were so prejudicial as to require a new trial. We disagree. “Improper argument may be a basis for reversal if the argument was of such a character as to have prevented the party from receiving a fair trial.” Myers v. Heritage Enterprises, Inc., 354 Ill.

App. 3d 241, 249-50, 820 N.E.2d 604, 612 (2004). “Whether a party has been denied his right to a fair trial requires a consideration of the entire trial, and the trial court, having been in a unique position to make that determination, is afforded great discretion.” Myers, 354 Ill. App. 3d at 250, 820 N.E.2d at 612. We review the trial court’s determination for an abuse of discretion. Myers, 354 Ill. App. 3d at 250, 820 N.E.2d at 612. In approximately 1974, OSHA cited defendant for exceeding allowable levels of asbestos in the workplace.

Over defendant’s objection, the trial court allowed use of the citation to establish notice of the hazards of asbestos to defendant.

During closing argument, plaintiff s counsel argued: (1) “OSHA came in to tell them that they were killing their own workers,” and (2) “OSHA came out *** and showed them they were out of control.” The court characterized the argument as “hyperbole,” stating that “it would be difficult to imagine that the comments *** were sufficient to change the minds of jurors, or even substantially affect their decision-making.” During rebuttal, although the trial court had properly excluded evidence of decedent’s other exposures to asbestos, plaintiffs counsel argued that defendant failed to produce evidence of a “mystery guy.” The court brought the rebuttal to an immediate close.

Defendant did not object to the argument during trial. “[A] ‘party cannot sit on his hands and let perceived errors into the record and complain of those errors for the first time in a post[ jtrial motion.’ ” Taluzek v. Illinois Central Gulf R.R. Co., 255 Ill. App. 3d 72, 82, 626 N.E.2d 1367, 1375 (1993), quoting Pharr v. Chicago Transit Authority, 220 Ill. App. 3d 509, 515, 581 N.E.2d 162, 166 (1991). Failure to object to alleged errors in an opponent’s argument is considered waiver of the objection. Taluzek, 255 Ill. App. 3d at 82, 626 N.E.2d at 1375.

Moreover, our review of these remarks reveals nothing so prejudicial as to deprive defendant of a fair trial. Therefore, defendant waived its objection to plaintiffs counsel’s comments during closing argument and rebuttal. For the reasons stated, we affirm the trial court’s judgment. Affirmed. MYERSCOUGH, J., concurs.