Denial of Judgment Notwithstanding The Verdict Reversed For Welding Rod Defendant

Illinois — Following a trial in which a jury found that Hobart Brothers Company (Hobart) had failed to warn the plaintiff, Charles McKinney of the dangers of asbestos from its welding rods, Hobart appealed the trial court’s denial of its motion for judgment notwithstanding the verdict. The appellate court reversed the trial court’s denial, finding no evidence in the record demonstrating that the welding industry knew in the 1960s that welding rods could release asbestos fibers, or that welding rods were a substantial cause of the plaintiff’s mesothelioma.

For eight months in 1962 and 1963, the plaintiff worked as a torch welder in the general proximity of others who were using asbestos-containing welding rods to arc weld.  Testimony revealed that the workplace was dirty, but no testimony associated the dirt with dust from welding rods. The plaintiff also worked for over 40 years as an automobile mechanic around asbestos-containing materials.

The panel of three judges ruled that while the plaintiff may have demonstrated an industry-specific and general association of raw asbestos with mesothelioma, there was no evidence in the record associating specific products, such as welding rods, with asbestos-related health hazards in the relevant time period. The paintiff’s expert Dr. Arthur Frank agreed that “(t)he asbestos content of a product is not necessarily an indication of its relative health risk.  For many products, the fibers are tightly bound to the matrix or encapsulated.”  As such, the court found that Hobart had no duty to warn.  The court further concluded that the plaintiff did not present any evidence that the amount of asbestos fibers that may have been released from Hobart’s welding rods was above background, and it was conjecture to conclude that the rods were a substantial factor in causing the plaintiff’s mesothelioma.