Court: Appellate Court of Illinois; November 18, 1994; Illinois; State Appellate Court
Justice Stouder delivered the court's opinion regarding two consolidated appeals stemming from a multi-count complaint filed by Annette Costa, both individually and as executor of her late husband Dominic Costa's estate, against multiple defendants related to asbestos products. Dominic Costa worked for Keystone Steel Wire Company from 1961 until his death in 1987, allegedly due to mesothelioma caused by asbestos exposure from the defendants’ products. The appeal involves Owens-Corning Fiberglas Corporation, which contested a judgment in favor of the plaintiff.
In the lead-up to the trial in September 1992, extensive motions were filed, including one by the plaintiff requesting the appearance of Owens-Corning’s vice president, Dr. Jon Konzen, which the trial court upheld. Dr. Konzen's refusal to appear led to the court sanctioning Owens-Corning by ruling on liability issues in favor of the plaintiff, allowing only damages to be considered by the jury. The jury ultimately found in favor of all defendants except Owens-Corning, concluding that the decedent did not die of mesothelioma. The court instructed the jury that negligence and proximate cause had already been established against Owens-Corning, leaving only damages to be determined.
The jury awarded the plaintiff $190,000 in survival damages, $86,628 for loss of consortium, but nothing for wrongful death. Subsequently, a new trial limited to wrongful death damages resulted in a $700,000 award. After a reduction for settlements received from other defendants, the final judgment against Owens-Corning totaled $876,628. Both Owens-Corning and the plaintiff filed appeals, with the plaintiff alleging multiple trial court errors. Additionally, intervenor Keystone Steel Wire Company appealed a post-trial order denying reimbursement for document production costs related to the trial.
The court consolidated three appeals for oral argument and affirmed the decisions in cases Nos. 3. 93—0621 and 3. 93—0625. Owens-Corning did not contest the sanctions imposed by the trial court but focused on the denial of its motions for summary judgment and judgment n.o.v., claiming that jury instructions improperly allowed the jury to determine "injury" related to Owens-Corning, warranting vacating the verdict. Owens-Corning also opposed the trial court's decision to grant the plaintiff a new trial limited to assessing wrongful death damages.
Owens-Corning had filed for summary judgment in May 1990, asserting the plaintiff could not prove her husband’s exposure to its asbestos products. After the trial began, Owens-Corning sought reconsideration of its summary judgment motion. The plaintiff had requested the trial appearance of Dr. Konzen, an Owens-Corning employee with significant knowledge of asbestos-related health risks, but Owens-Corning moved to quash this request, citing prior sanctions in unrelated cases for similar refusals to produce employees. The court denied this motion, and parts of Dr. Konzen's deposition were read to the jury. Although the plaintiff attempted to call Konzen at trial, he did not appear.
The trial court ruled against Owens-Corning on all liability issues, limiting jury consideration to damages. Owens-Corning did not contest the sanctions but argued the evidence was insufficient to deny its summary judgment motions, claiming that the unique circumstances of the case made the denial appealable. Generally, after a trial, the denial of a summary judgment motion is not subject to appeal, as the trial outcome merges the previous ruling, but Owens-Corning contended that the specifics of this case warranted a different treatment.
Owens-Corning argues that it did not receive an evidentiary hearing regarding its liability and faced a choice between producing a corporate witness or protecting its employees' rights. The court finds this argument lacks merit, noting that Owens-Corning chose not to produce Dr. Konzen, resulting in sanctions that eliminated the need for an evidentiary hearing on liability. As a result, Owens-Corning cannot claim this as a basis for reviewing the denial of its summary judgment motions. If Konzen had been produced, the liability issue would have advanced to an evidentiary hearing, making any denial of the motion unreviewable.
Owens-Corning also contends that jury instructions preserved the "injury" element for the jury to decide, asserting that the jury's finding that the decedent did not die of mesothelioma implies the plaintiff failed to prove the injury element. However, the instructions indicated that liability against Owens-Corning had already been established, leaving the jury to determine only the amount of damages. Consequently, the jury's determination regarding injury was not an issue for deliberation.
Furthermore, Owens-Corning argues that the jury's finding that the decedent did not die of mesothelioma should lead to a judgment notwithstanding the verdict due to inconsistency with the liability verdict. The court dismisses this argument, stating that the liability finding was based on sanctions imposed for Owens-Corning's noncompliance with the court's rulings, not on the trial evidence. Thus, the evidence supports the verdict against Owens-Corning, despite the jury's findings regarding the decedent's condition.
The jury's determination was consistent, as it was properly instructed to assess only the damages against Owens-Corning, with clear guidance on other defendants' issues. The trial court did not err in denying Owens-Corning’s motion for a judgment notwithstanding the verdict (n.o.v.) or in granting a limited new trial for wrongful death damages. Owens-Corning's argument for a comprehensive new trial was rejected, as appellate review of a new trial motion is restricted to instances of clear abuse of discretion. A new trial on damages alone is justified when the liability verdict is well-supported, damages and liability are distinct, and there’s no indication the jury compromised on liability. Owens-Corning's claims regarding jury instructions and alleged liability compromise were found unmeritorious; the jury's verdict did not reflect a compromise. The trial court's decision to grant a new trial for wrongful death damages was based on the jury's oversight of this damage element. Additionally, Keystone Steel Wire Company's appeal regarding the denial of expense reimbursements for complying with subpoenas was noted. Keystone's motions to quash the subpoenas were denied, and the court refused to condition compliance on prepayment of expenses exceeding statutory witness fees.
Keystone was ordered to produce requested documents for inspection by the plaintiff starting September 9, 1992. Following this, the plaintiff's representatives reviewed the documents at Keystone's plant. On November 16, 1992, after the trial, Stevenson, Rusin, Friedman Ltd. submitted a petition for expenses related to document production, claiming $1,418 in costs due to attorney John Maciorowski's presence at the trial, which forced him to cancel a scheduled deposition. Maciorowski's role involved correspondence with medical experts in ongoing worker’s compensation proceedings. The trial court criticized the plaintiff's attorney, James Walker, for conducting what it deemed a "fishing expedition" during the trial, indicating such tactics unnecessarily complicated the proceedings.
On the same date, Keystone filed a petition to recover $13,296 in expenses incurred from complying with subpoenas. This included over $10,000 for attorney fees related to document inspections and motions to quash. The trial court denied both petitions on December 4, 1992, stating that section 2.1101 did not provide for the requested relief. On appeal, Keystone argued that the statute should allow for the payment of expenses after production, but the court found no supporting authority for this interpretation and noted that the statute does not require payment of expenses. The appellate court affirmed the trial court's denial of Keystone's petitions, concluding that there was no error in the judgment.
