The decedent’s estate filed a claim alleging asbestos exposure caused decedent to develop mesothelioma. The trial court directed a verdict in favor of Welco Manufacturing Company because no witnesses could specify how often the decedent used Welco’s products. The plaintiffs appealed, and the appellate court reversed and remanded for a new trial.
The decedent’s cousin, Walter, testified that he and the decedent applied joint compound on close to 50 commercial and residential sites for four months in Illinois in 1965. Walter testified they used, among other brands, “Wel-Cote.” He could not identify how frequently they used Wel-Cote, or any specific job site where this product was used. The trial court found that the plaintiffs did not meet their burden.
The appellate court reviewed the frequency, regularity and proximity test defined by Illinois in Thacker v. UNR Industries, Inc. It also reviewed cases from several jurisdictions which found this test was not met and had similarly vague testimony. However this case was distinguishable because Walter identified Wel-Cote as one of the joint compounds most likely used more frequently than the others. Further, the court found other authority from the Seventh Circuit and the Third Circuit that conflicted with these cases more persuasive. The court pointed out that the jury was not shown the portion of Walter’s evidence deposition wherein he stated that “Wel-Cote and Bestwall was the most we used.” The court found this unexplained alteration insufficient to justify taking the question of causation from the jury.
The court also found that Illinois law applied, even though the decedent’s career was primarily in Alabama. Since the plaintiffs only claimed injury inflicted while the decedent worked with Wel-Cote in Illinois in 1965, the injury at issue occurred in Illinois, and the trial court correctly applied Illinois law. The plaintiffs’ evidence likewise supported a potential duty to warn, sufficient to withstand a directed verdict.