U.S. District Court for the Northern District of Illinois, Eastern Division, June 25, 2021
Plaintiff Deborah Johnson alleges that her late husband, Bruce Johnson, contracted mesothelioma due to his exposure to asbestos. The defendant, Edward Orton, Jr. Ceramic Foundation, moved for summary judgment, which the court granted.
The plaintiff alleges that Orton was negligent for failing to warn or protect the decedent from the risk of asbestos in its product. Because the plaintiff failed to raise any questions of fact regarding the existence of a duty owed to the decedent by Orton, the court found that summary judgment was proper in Orton’s favor.
In the product liability context, a manufacturer has a duty to warn potential customers when “the product possesses dangerous propensities and there is unequal knowledge with respect to the risk of harm, and the manufacturer, possessed of such knowledge, knows or should know that harm may occur absent a warning.” Sollami v. Eaton, 772 N.E.2d 215, 219 (2002). The plaintiff only cited one article to support her position that Orton should have known of the risk of asbestos in the vermiculite used by Orton as a packing material. The court held that that article was insufficient to establish industry knowledge. Therefore, the plaintiff failed to establish that Orton knew or should have known of the risk associated with its products.
Further, while the plaintiff urged the court to treat Orton as a product manufacturer, which would be held to the degree of knowledge of skill in experts in ensuring a product is safe, the court rejected this argument, refusing to treat the ceramics manufacturer as a manufacturer for the purposes of the packing material used.
Because the record did not raise any issues of fact as to whether Orton knew or should have known of the risk present in the packing material used with Orton’s products, a jury could not find that Orton had a duty to warn the decedent of the risk of asbestos in this packing material, and Orton’s motion for summary judgment was granted.