The family of an Alabama drywall worker who died after contracting mesothelioma will be allowed to return to a jury trial in Cook County over the family’s claims the drywaller’s illness was caused by inhaling asbestos from drywall joint compound dust on job sites on which he worked for just a few months in the Chicago area in 1965.
On May 9, a three-justice panel of the Illinois First District Appellate Court reversed the directed verdict handed down by Cook County Judge James M. McGing in December 2015 in favor of defendant drywall joint compound manufacturer, Kansas City-based Welco Manufacturing.
The case had landed in Cook County Circuit Court in 2014, when the family of Ronnie Startley, who is deceased, filed suit against Welco and a host of other industrial defendants, asserting the illness contracted by Startley was caused by asbestos fibers contained in the drywall joint compound he helped spread and sand.
Startley had lived and worked as a drywall finisher most of his life in Alabama. However, his family only brought suit in Cook County, leveling no claims under Alabama law, which would have precluded the family’s lawsuit as “untimely” under the statute of limitations.
The family asserted the litigation should be allowed to proceed under Illinois law because Startley lived and worked as a drywall finisher in Illinois for “three or four months” in 1965, alongside his cousin, Walter Startley.
According to court documents, the Startley cousins together worked on “close to 50 commercial sites” during that time, as well as several houses.
In all of the projects, the lawsuit asserted, the cousins used drywall joint compound containing asbestos. The products were made by several companies, including the Wel-Cote brand compound manufactured and sold by Welco.
During the course of the litigation, the plaintiffs settled or dismissed every defendant named in the original lawsuit, except Welco. The plaintiffs proceeded to trial against Welco.
However, the judge cut short the trial, granting a directed verdict in favor of Welco, which had argued the Startley family had not demonstrated a clear link between Startley’s use of Wel-Cote and his later illness, which, they said, he could have contracted from any of the other products he used, or which he could have contracted while working in Alabama for most of his life, rather than Illinois, in which he worked for just a few months.
[T]here’s very minimal product identification in this case,” Judge McGing wrote in his order for directed verdict. “There is no testimony to support frequency of the [use of] defendant’s product. There’s no testimony to support repeated exposure to the defendant’s product.”
The judge noted only Walter Startley could testify to the repeated use of Wel-Cote during the time the Startleys lived and worked in Illinois, and then, only among the other joint compound products they used.
On appeal, however, the three First District justices said the trial court had erred.
They said the amount of time Startley worked in lllinois, relative to the decades he worked in Alabama, doesn’t matter in this case, as the justices said the plaintiffs had presented enough evidence to indicate the amount of Welco’s product Startley used while in Illinois could have caused his later cancer. Thus, they said, because Illinois could be the place “where the injury occurred,” Illinois law should apply in the case.
“Walter’s testimony that he and Ronnie used Wel-Cote on jobs in Illinois was sufficient to create an issue of material fact as to whether exposure to Wel-Cote in Illinois constituted a substantial factor in causing Ronnie to contract mesothelioma,” the justices wrote.
Further, the justices said they believed expert testimony presented by Dr. Richard Lemen, asbestos exposure researcher and former acting and deputy director of the Centers for Disease Control’s National Institute for Occupational Safety and Health, established that Welco could have had a “duty to warn” Startley of the hazards of using joint compound containing asbestos.
The justices sent the case back to Cook County Circuit Court, ordering a new trial.
According to Cook County court records, the Startley family is represented in the litigation by attorneys with the firm of Robert N. Wadington & Associates, of Chicago.
Welco is defended by the firm of Foley & Mansfield PLLP, of Chicago, court records state.