Madison County Asbestos Trial: Judge Stobbs is asked by Hennessy to Reconsider Barred Evidence Following Plaintiff Expert Opening the Door to Different Causation
Associate Judge Stephen Stobbs was asked by Hennessy Industries to reconsider his order to bar the evidence related to alternative asbestos causation at an asbestos trial in Madison County.
The reconsideration request turns up when a counsel to plaintiff, Tom Hart and Allyson Romani (both of Shrader& Associates) showed at a trial in front of the jury the entire video recording of Dr. Arthur Frank doing the deposition on February 8th.
Read also: Mesothelioma as a Notorious Cause of Death
Hennessy filed the motion on February 10th through Brian Roth (of Gordon & Rees). The motion states that the plaintiffs have neglected the order in limine that excludes the presence of evidence for alternative causation the moment they put forth Frank’s testimony that contains new evidence.
The motion reads that in spite of the fact that alternative causation’s evidence was precluded previously, plaintiffs have exempted their own argument as depicted in their own motion in limine—thus violating an order in limine—when they presented an exposition that refers to alternative exposure at trial.
Cross examination is conducted and it is found that Frank did provide a number of possible causes for mesothelioma case the plaintiff Stanley Urban suffers. Frank, unfortunately, also admitted it is impossible to determine which asbestos fibers that Urban inhaled that developed into mesothelioma.
The motion further states that Dr. Frank’s testimony at trial referred to the presence of ambient levels or asbestos that occur in the air that is typical to urban environment. Mr. Urban could have been exposed to that level of asbestos too. Dr. Frank, still according to the motion, also testified that it is totally comprehensible that an asbestos exposure that is higher than the background level, Mr. Urban’s mesothelioma could be caused by that kind of exposure.
According to Hennessy, Frank’s testimony referred to the fact that the plaintiff’s condition was caused by exposure to asbestos that originated from brake products, clutch products that contain asbestos, and gaskets.
Plaintiffs, in doing so, give Hennessy a chance to provide proofs that are related to alternative exposure that causes the condition and that if Hennessy cannot, it will be prejudiced.
Dr. Frank explained that OSHA’s guidelines determine that employers are to give their employees a workplace that is safe and healthful.
Counsel to the plaintiff also assigned statement from Craig Mountz of Rodney Lay v Abbott Laboratories that adds specific portions regarding employers’ liability.
As a result, the motion reads, the plaintiff put forth a proof that contains references to an alternative cause for Mr. Urban’s condition to the court.
Hennessy reasons that the courts of Illinois states that a party provides a way into evidence once the witnesses talk about topics that are barred.
Hennessy will suffer from prejudicial consequences if it is not allowed access to present more proofs on the issue.
The jury has now heard of something that can be considered alternative exposure. The jury, in the process, wrongly inferred that Hennessy refused to present a form of their evidence of their own as a testimony like that could very well damage the case.
Plaintiffs, by way of their own expert, should never be allowed to demonstrate how an alternative causation may exist when Hennessy itself is prohibited from presenting the same alternative causation could perhaps be the cause of the patient’s condition.
Romani responded on February 13th, saying that Hennessy did not respond to the original motion in limine. Hennessy also did not orally present to the court evidence that could lead to introduction of alternative causation of the plaintiff’s mesothelioma.
Romani states that while Hennessy did say they would try to present proofs about Mr. Urban’s negligence, they did not mention from where or whom the proofs will come.
Mr. Urban’s negligence, if any, will not relieve defendant (Hennessy) of non-delegable duty under Illinois negligence law, which states that a party’s concurrent negligence doesn’t relieve another of their negligence.
Romani also added that Hennessy has tried to make it clear that chrysotile asbestos, which is found in brake linings, isn’t something capable of inducing mesothelioma, and it will try to continue to uphold that perspective. Hennessy, according to Romani, is now trying to present to the court proofs that the plaintiff might be exposed to engine gaskets and clutches. Romani said that it is totally confusing to say that brake linings that contain asbestos couldn’t be the cause of mesothelioma while the same substance found on gaskets and clutches could.
Romani further added that how confusing it is, too, that Hennessy claims to be able to present a proof and arguments that will lead to saying that plaintiff’s exposure to brake linings ground on an AMMCO was of a dose that was low, which is to say that it is impossible to develop mesothelioma from this, yet at the same time, Hennessy will attempt to clutches replacement and engine gaskets scraping will expose the plaintiff to a dose that not only will raise the risk of contracting but is also the sole cause for his disease.
The plaintiff’s argument goes even further, saying that Hennessy wouldn’t be able to put forth proofs of actions or inactions that would refer to plaintiff’s employers having violated standards OSHA has mandated.
Arguments plaintiff makes also refers to Hennessy’s attempt at twisting a testimony given by their own corporate representative regarding defendant’s knowledge about Illinois Occupational Disease Act into an accusation that says that plaintiff has provided a way for them to present proofs pertaining to Mr. Urban’s employers, whom weren’t employers of Illinois origin thus not this law’s subject.
Urban and his wife, Janet Urban are native of Michigan—where his alleged exposures took place.
The Urbans launched a lawsuit in March 2013, stating that Stanley Urban was exposed to products containing asbestos when he was working at dealerships throughout the ‘60s to 1974, also when he was a teacher of auto technology at several schools from 1975 till today.
Urban specifically states that he was exposed to asbestos when he worked using brake grinders from Hennessy.
He was tested positive for mesothelioma in his diaphragm, both above and below, in January 2013.