Quirin v. Lorillard Tobacco Co.

Citations: 23 F. Supp. 3d 914; 2014 U.S. Dist. LEXIS 24576; 2014 WL 786838Docket: Case No. 13 C 2633

Court: District Court, N.D. Illinois; February 25, 2014; Federal District Court

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Plaintiff Marilyn F. Quirin, representing the estate of Ronald J. Quirin, has filed a negligence lawsuit against Lorillard Tobacco Company and Hollingsworth Vose Company, claiming that Mr. Quirin's mesothelioma was significantly caused by exposure to asbestos in Kent cigarettes. The defendants argue for summary judgment, contending that Quirin cannot prove exposure to their asbestos-containing products or that such exposure was a substantial factor in causing the disease. The court denies the motion, citing genuine disputes regarding Mr. Quirin's exposure to Kent cigarettes and the causative link to his mesothelioma.

Summary judgment can be granted only when there are no genuine disputes on material facts, based on Federal Rule of Civil Procedure 56. The court assesses facts favorably for the nonmoving party, here the plaintiff. Mr. Quirin was diagnosed with mesothelioma in December 2011 and passed away in March 2013, prompting his wife to pursue claims under Illinois' Wrongful Death Act and the Illinois Survival Act, alleging negligence due to the defendants’ failure to provide safe products and warnings related to asbestos exposure.

From 1952 to 1956, Lorillard's predecessor produced Kent cigarettes with a 'Micronite' filter made from asbestos, while H. V's predecessor manufactured bulk asbestos filter media for Lorillard. Kent cigarettes ceased containing asbestos after May 1956. Mr. Quirin served in the Navy from September 1953, assigned to the USS Tolovana in 1954.

Mr. Quirin began smoking Kent cigarettes shortly after joining the Navy, around 1954, and continued until after leaving the Tolovana in 1957. He reported that initially he smoked five to seven cigarettes daily, increasing to about a pack every two to three days. In 2010, Dr. James Millette found crocidolite asbestos fibers in Kent cigarette samples, supporting Mr. Quirin's potential exposure to asbestos while smoking these cigarettes. Dr. Carl Brodkin, an expert retained by Quirin, opined that his mesothelioma was causally related to various occupational exposures during his naval service and subsequent work as a telephone installer, with significant exposure to Kent cigarettes from 1954 to mid-1956. Brodkin noted the varying levels of asbestos fibers released during smoking tests, but could not definitively assert that smoking Kent cigarettes alone caused Quirin's mesothelioma, emphasizing that mesothelioma is a dose-response disease and that cumulative exposure is critical in assessing risk. Overall, Brodkin identified Quirin's exposure to Kent micronite filters as a significant factor, although not the sole contributor to his condition.

Exposure to Kent micronite contributed to the development of mesothelioma in Mr. Quirin, but the overall risk stemmed from both environmental and occupational exposures. Dr. Brodkin indicated that Mr. Quirin's occupational asbestos exposure could have been sufficient to cause mesothelioma independently of his smoking habits. Quirin asserts that he was exposed to asbestos during his Navy service from 1953 to 1957 and through his employment with Illinois Bell Telephone Company, citing exposure to asbestos fibers from products associated with the defendants.

Lorillard and H. V have filed motions to exclude expert testimony from Dr. Millette and Dr. Brodkin based on the Daubert standard and Federal Rule of Evidence 702. The court has determined that the evidence presented by Quirin is admissible and will be considered in the summary judgment ruling.

Regarding the exposure to Kent cigarettes, Lorillard and H. V contend that Quirin failed to prove Mr. Quirin used asbestos-containing products from them since Kent cigarettes with Micronite filters were only produced from March 1952 to May 1956. The court found that a reasonable jury could infer that Mr. Quirin smoked these cigarettes, based on his testimony about starting to smoke them shortly after joining the USS Tolovana in May 1954 and continuing until after leaving the ship in 1957.

Finally, Lorillard and H. V argue that Quirin cannot establish a causal link between the original Kent cigarettes and his mesothelioma, emphasizing that Quirin must provide evidence that the asbestos in those cigarettes was a direct cause of his injury.

In Illinois, a plaintiff in an asbestos-related case is not required to demonstrate that a specific exposure to asbestos was the sole cause of their mesothelioma; instead, they can show that it was a 'substantial factor' in causing the disease. The Illinois Supreme Court employs the 'frequency, regularity and proximity' test to help plaintiffs establish causation. This test aims to balance the challenge of proving causation with the rights of defendants against unfounded liability claims. Plaintiffs must provide more than mere conjecture to support their claims; they cannot hold manufacturers liable based on minimal exposure or brief encounters with their products.

In the case discussed, Mr. Quirin's claim does not fail due to the absence of evidence regarding the exact dose of asbestos he inhaled from smoking original Kent cigarettes. Illinois courts do not mandate precise quantification of asbestos exposure to meet the substantial factor criterion. Distinguishing between negligible exposure and significant exposure supported by expert testimony is essential. Recent court rulings indicate that evidence of exposure from a specific product, along with expert analysis linking that exposure to asbestos-related diseases, can create a genuine issue of material fact regarding causation.

Quirin has provided sufficient evidence to contest the summary judgment regarding his exposure to asbestos from Kent cigarettes, including his testimony about smoking five to seven cigarettes daily, which suggests frequent and regular exposure. Additionally, expert testimony from Dr. Millette indicates that asbestos fibers may have been released from the cigarettes, fulfilling the proximity requirement. Dr. Brodkin’s testimony further supports the claim that Quirin's cigarette use could be a proximate cause of his mesothelioma. However, defendants Lorillard and H. V argue that Quirin's significant occupational asbestos exposure during military service and employment with Illinois Bell undermines the assertion that smoking Kent cigarettes was a substantial factor in his illness.

Dr. Brodkin's testimony indicated uncertainty regarding whether Kent cigarettes directly caused Mr. Quirin's mesothelioma or whether his occupational exposure alone could have led to the disease independent of his smoking history. The argument presented conflates the substantial factor test in Illinois law with the 'but for' test, whereas they are alternative standards. Under Illinois law, Quirin does not need to prove that exposure to asbestos from the original Kents was sufficient on its own to cause the disease; he only needs to demonstrate that a reasonable jury could find that the product contributed to his condition. The court determined that Quirin successfully met this burden, resulting in the denial of Lorillard and H. V's motion for summary judgment. Count III of the complaint, concerning loss of consortium, was previously dismissed, but the court acknowledged loss of consortium as a compensable pecuniary injury under the Wrongful Death Act. Illinois distinguishes between discovery and evidence depositions, with the latter potentially admissible at trial under specific conditions, unlike the Federal Rules of Evidence, which do not recognize this distinction. The admissibility of an unavailable witness's deposition is determined by Federal Rule of Civil Procedure 32. Additionally, Quirin's statement regarding Dr. Millette's findings on asbestos fiber counts is unsupported by the cited exhibit, and the court will rely solely on the content of the exhibit provided in Quirin's Rule 56.1 statements of fact.