COURT SPLITS ON CLOSELY BALANCED CASE; MAJORITY REVERSES DIRECTED VERDICT

February 12, 2004

Steven P. Garmisa
Hoey & Farina Attorney

The rules are easy to recite -- but tough to apply -- in a case with closely balanced evidence.

"Mere conjecture and speculation" will not support a verdict for the plaintiff. But circumstantial evidence can be enough to prove a case -- even if this evidence also could sustain contrary conclusions.

The hard part was applying these rules in an asbestos case with exquisitely close evidence. In an appeal from a directed verdict, the Illinois Appellate Court wound up splitting 2-1 on whether plaintiff's evidence was strong enough to prove liability. Caruso v. M&O Insulation Co., 2003 WL 23101135 (4th Dist., Dec. 29).

The crucial question of fact was whether M&O Insulation Co. installed products containing asbestos in the Dallman plant operated by City Water Light and Power in Springfield.

Antonio Caruso, a CWLP employee, developed mesothelioma from exposure to asbestos after working for decades at the Dallman plant. He and his wife filed a lawsuit against several parties, including M&O Insulation.

Until two weeks before trial, M&O emphatically denied that it had ever performed any insulation work at the Dallman plant. But when Caruso's persistent counsel uncovered records showing that M&O had in fact worked at the Dallman plant, M&O dropped that defense. Admitting it worked at the Dallman plant, M&O produced records showing that it provided insulation for CWLP as early as April 1975.

M&O's alternative argument was that it never supplied insulation products that contained asbestos. M&O was incorporated in 1972. According to M&O this was, fortuitously, the year products made with asbestos were banned.

Actually, Justice Robert W. Cook noted on appeal, asbestos was never "banned" in 1972. Instead, 1972 was the year when the Occupational Health and Safety Administration issued a warning that breathing asbestos fibers could be harmful.

The Carusos also relied on testimony from Melvin Corbeil, the president of another defendant, that asbestos-free products were not available until 1973 or '74. While Corbeil later said asbestos-free products might not have become available until 1974 or '75, and might have been available as early as 1970, he finally returned to his original answer, stating: "I'm telling you the best of my recollection was '73 to '74, you know, somewhere around that time."

M&O's flip-flop on whether it ever worked at the Dallman plant arguably undercut the credibility of its equally emphatic denials that it had ever used asbestos-containing insulation.

With records showing that M&O installed insulation for CWLP in April 1975, and Corbeil's testimony that asbestos-free products did not become available until 1973 or '74 -- plus the reasonable inference that it would have taken time to deplete inventories of insulation that contained asbestos -- was this enough evidence to prove that it was more likely than not that M&O installed asbestos- containing products in the Dallman plant?

No, the trial judge decided, granting a motion for a directed verdict at the close of plaintiff's case.

Reversing, the Appellate Court majority decided there was enough evidence to support a verdict against M&O. As Cook's majority opinion explained (with various omissions):

"In a jury case, plaintiff must present at least some evidence on every element essential to his cause of action, and if he fails to do so, a directed verdict is appropriate. Even if the plaintiff produces some evidence, however, that evidence may lose its significance when viewed in the context of all of the evidence. Where there is evidence on both sides, a motion for directed verdict may still be granted, but only where all the evidence viewed in a light most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict can ever stand.

"A directed verdict is improper where there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome.

"The use of circumstantial evidence is not limited to those instances in which the circumstances support only one logical conclusion. Circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom, and the facts established by such inferences are considered when an issue is decided as a matter of law or a verdict is directed.

"While circumstantial evidence may be used to show causation, proof which relies upon mere conjecture or speculation is insufficient.

"Plaintiff here presented some evidence from which a reasonable jury could have concluded that M&O sold or installed products containing asbestos at the Dallman plant. Plaintiff presented evidence that he worked at a plant where asbestos was present and that as a result he contracted mesothelioma. Plaintiff presented evidence that M&O supplied materials to that plant, materials which were commonly known to contain asbestos. Again, a plaintiff may meet his or her burden of proving causation with circumstantial evidence; Illinois law does not require unequivocal or unqualified evidence of causation.

"The evidence in this case did not overwhelmingly favor M&O, particularly when that evidence is viewed in the light most favorable to plaintiffs. M&O was unable to present definitive evidence, in the form of invoices or the like, that the materials it supplied to the Dallman plant were asbestos-free. We are forced to rely on the fallible testimony of witnesses.

"Corbeil, a witness adverse to plaintiff, testified to the best of his recollection that asbestos-free insulation did not become available until 1973 or 1974.

"The burden of establishing the contents of the products it supplied, facts peculiarly within the knowledge of M&O, should not be placed on plaintiff. The mere denial that M&O used asbestos is not controlling. Positive direct testimony may be contradicted and discredited by adverse testimony, circumstantial evidence, discrepancies, omissions or the inherent improbability of the testimony itself.

"Credibility issues are certainly present in this case. The fact that M&O claimed, until two weeks before trial, that it had never performed any insulating work for CWLP is significant. The jury would not have been required to accept M&O's explanation of innocent mistake.

"The jury could have concluded that M&O was engaging in intentional deception and that its statements regarding asbestos were also deceptions. At the very least the jury could have concluded that M&O's recollections, both as to where it worked and what products it dealt with, were simply inaccurate and entitled to little weight."

Dissenting, Justice John T. McCullough concluded that: "Plaintiffs failed to provide 'some evidence' that M&O sold products containing asbestos to the Dallman plant in Springfield. Corbeil's testimony as to when asbestos-free products became available was speculative and thus not sufficient....

"Plaintiffs must present evidence that defendant used materials containing asbestos in its product and that that product was used by defendant in CWLP's Dallman plant. Plaintiffs failed to meet their burden with regard to the necessary elements of the case, and the trial court rightfully granted a directed verdict."

However, Cook's majority opinion held that, "Because plaintiff presented some evidence that M&O sold products containing asbestos, and because the assessment of credibility of the witnesses is decisive in this case, it was error to direct a verdict."

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