Daubert in Illinois
This action was brought to recover damages arising from the death of Thomas I. Coyne (“Coyne”). Plaintiff alleges that Coyne died from mesothelioma caused by his exposure to (1) asbestos-containing products made or distributed by certain defendants (the “product defendants”) or (2) asbestos found on the premises of certain defendants (the “premises defendants”).
The nine defendants in this appeal were granted summary judgment on plaintiff’s claims. The trial court granted summary judgment to each defendant and gave essentially the same reasons for each. The trial court found that plaintiff’s allegations in response to defendants’ motions for summary judgment failed to satisfy the “frequency, regularity, and proximity” test of Thacker v. UNR Indus., Inc., 603 N.E.2d 449 (1992).
Plaintiff appeals the grant of summary judgment as to each of the appellees. For the reasons set forth below, amici believe the trial court arrived at the correct result and this appeal should be dismissed.
Coyne v. CBS, (Appellate Court of Illinois, Third District)
Read the Amicus Brief:
Whether the trial court erred in finding no material question of fact exists about causation when plaintiff presented medical opinions and scientific evidence that mesothelioma can be caused by brief exposures to asbestos, all exposures contribute to cause mesothelioma, and the exposures at issue were high levels.
Amici include physicians, chemists, geologists, physicists, epidemiologists, and toxicologists. Several of them have devoted much of their careers to studying asbestos and its health effects. Amici are also aware of the significance of asbestos litigation nationally, and they are concerned that the mere utterance of “asbestos,” no matter the asbestos fiber type, or the level of exposure, together with “mesothelioma” or “cancer” can have undue impact on juries, even though that impact is not justified by the known patterns of asbestos-related disease.
ALF’s Amicus Brief:
Amici argue that Plaintiff failed to meet his burden because the evidence presented was insufficient to create the inference that Plaintiff was exposed to asbestos from a particular defendant’s products. The trial court correctly concluded that no genuine issue of material fact existed, and that any jury verdict would be based on speculation. The Thacker test requires the plaintiff to show that (i) he regularly worked in an area where asbestos was frequently used; and (ii) plaintiff did, in fact, work in sufficiently close proximity so as to come in contact with the particular defendant’s product. Nolan v. Weil-McLain, 233 Ill.2d 416, 433, 434 (2009). The plaintiff’s failure to identify any asbestos-containing product of the specific defendant to which the plaintiff had been exposed is fatal to his claims and provides a sufficient basis for the trial court to have granted each defendant’s motion for summary judgment.
Thacker v. UNR Indus., Inc., 151 Ill.2d 343, 177 Ill.Dec. 379, 603 N.E.2d 449 (1992) rejected the argument advanced by plaintiff that so long as “there is any evidence that the injured worker was exposed to a defendant’s asbestos-containing product,” there is sufficient evidence of causation in fact to allow the issue of legal causation to go to the jury. Nolan v. Weil-McLain, 233 Ill.2d 416, 434. Such an approach is contrary to the concept of substantial causation, because without the minimum proof required to establish frequency, regularity and proximity of exposure, a reasonable inference of substantial causation cannot be made.
Date Originally Posted: September 8, 2011