dissenting:
I respectfully dissent.
In Betts (225 Ill. App. 3d at 925-28, 588 N.E.2d at 1221-23), this court reversed a summary judgment entered against Grefco. That summary judgment had also been based on the collateral estoppel effects of Kessinger. In Betts, we held the judgment in Kessinger could not be given preclusive effect on the ultimate issue of negligence at the Bloomington plant. We held that Grefco could be estopped from denying it knew, before it distributed diatomaceous earth, that exposure could cause fibrosis. We held, however, that Grefco could argue that diatomaceous earth does not cause fibrosis in cases where the exposure is slight.
The trial court in this case complied with our direction in Betts. Under Betts, Grefco could argue that silicosis (fibrosis resulting from exposure to diatomaceous earth) was unlikely outside the mining and milling industries, and that silicosis was not likely to develop in an end-user setting, such as the Bloomington plant. Of course, Jearl Kessinger, the plaintiff in Kessinger, had acquired silicosis while working in the Bloomington plant, but Grefco could argue that his case was unique, not typical of other workers such as plaintiffs. If Grefco argued that silicosis could never occur at the Bloomington plant, that argument was effectively refuted by the experience of Jearl Kessinger. The trial court’s rulings in this case properly accommodated the competing considerations we discussed in Betts. Plaintiff did not object because the questions asked and answers given were proper.
The policies underlying res judicata are not advanced by the majority’s ruling. What is applied here is collateral estoppel, issue preclusion, and it is applied in a case where plaintiffs were not parties in the previous case. There is no "mutuality of estoppel” here; if Grefco had been successful in Kessinger, plaintiffs would not have been subject to estoppel in this suit. There is an "offensive” use of collateral estoppel here, i.e., use by a plaintiff who seeks to foreclose a defendant from litigating an issue defendant has previously litigated unsuccessfully in another action. Offensive use of collateral estoppel does not always foster judicial economy and fairness in the way that defensive use of collateral estoppel does. (In re Owens (1988), 125 Ill. 2d 390, 398, 532 N.E.2d 248, 251, citing Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322, 330, 58 L. Ed. 2d 552, 561, 99 S. Ct. 645, 651; see also Restatement (Second) of Judgments §§ 28, 29 (1982).) Courts must be cautious in allowing collateral estoppel to be used offensively; the trial courts must have broad discretion to ensure that application of offensive collateral estoppel is not fundamentally unfair to the defendant, even though the technical requirements for collateral estoppel are satisfied. Owens, 125 Ill. 2d at 399, 532 N.E.2d at 252.
The trial court acted within its discretion here. The jury heard all the evidence, including the evidence that Jearl Kessinger contracted silicosis at the Bloomington plant. After hearing that evidence, the jury concluded that these plaintiffs do not have silicosis and cannot recover. The majority opinion sets aside that reasoned determination, not because it was wrong, but because of what may have been said or done in another case. I would affirm.