dissenting:
This is a difficult and important case to which my colleagues and I have given a lot of thought. For the reasons that follow, I conclude we should not affirm the trial court’s judgment. Accordingly, I respectfully dissent.
The supreme court in Thacker adopted the “frequency, regularity, and proximity test” to assist plaintiffs in proving proximate cause in fiber-drift asbestos cases. However, the supreme court has never held that the rules that generally govern negligence cases do not apply in appropriate asbestos cases. This case is one of those appropriate cases, and defendant should have been permitted to present the sole-proximate-cause defense. Because the trial court’s rulings barred defendant from doing so, this court should reverse and remand for a new trial.
I. THE SOLE-PROXIMATE-CAUSE DEFENSE
In Ward v. K mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990), the supreme court wrote that “[t]he essential elements of a cause of action based on common[-]law negligence may be stated briefly as follows: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” In Leonardi, the supreme court further explained the proximate-cause requirement as follows:
“In any negligence action, the plaintiff bears the burden of proving not only duty and breach of duty, but also that defendant proximately caused plaintiff’s injury. [Citations.] The element of proximate cause is an element of the plaintiff’s case. *** Obviously, if there is evidence that negates causation, a defendant should show it. However, in granting the defendant the privilege of going forward, also called the burden of production, the law in no way shifts to the defendant the burden of proof. [Citations.]
* * i’fi
*** [P]laintiffs argue that the sole proximate cause defense distracts a jury’s attention from the simple issue of whether a named defendant caused, wholly or partly, a plaintiffs injury. We disagree. The sole proximate cause defense merely focuses the attention of a properly instructed jury *** on the plaintiffs duty to prove that the defendant’s conduct was a proximate cause of plaintiffs injury.” (Emphasis in original.) Leonardi, 168 Ill. 2d at 93-94, 658 N.E.2d at 455-56.
II. USE OF THE SOLE-PROXIMATE-CAUSE DEFENSE IN THIS CASE
Because Leonardi did not limit the applicability of the sole-proximate-cause defense, it should be available in appropriate asbestos cases. I use that phrase “appropriate asbestos cases” advisedly because I recognize that both Spain and Kochan could be viewed as prohibiting a defendant in an asbestos-fiber-drift case from raising a sole-proximate-cause defense. However, this case is not a fiber-drift case, which can be viewed as sui generis. Thus, in deciding the issues this case presents, this court need not and should not definitively resolve how, if at all, the sole-proximate-cause defense can be used in a fiber-drift case.
In cases like this one, where undisputed evidence exists of direct contact between the decedent and a defendant’s asbestos-containing product, the defendant should be able to negate causation by showing that (1) the decedent’s exposure to other asbestos-containing products or fibers was extensive and (2) his exposure to the defendant’s product could be viewed by the trier of fact as negligible or insignificant, particularly when compared to his extensive exposure to the other asbestos-containing products. Under such circumstances, the trier of fact should be permitted to decide whether the decedent’s exposure to the other asbestos-containing products constitutes the sole proximate cause of decedent’s injury.
Support for this principle can be found in section 431 of the Restatement (Second) of Torts and Comments a and b thereto, which provide as follows:
“What Constitutes Legal Cause
The actor’s negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.
Comment:
a. Distinction between substantial cause and cause in the philosophic sense. In order to be a legal cause of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent. Except as stated in § 432(2), this is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiffs harm. The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called ‘philosophic sense, ’ yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.
b. In many cases the question before the court is whether the actor’s negligence was in fact the cause of the other’s harm — that is, whether it had any effect in producing it — or whether it was the result of some other cause, the testimony making it clear that it must be one or the other, and that the harm is not due to the combined effects of both. In such a case, the question, whether the defendant’s negligence has a substantial as distinguished from a merely negligible effect in bringing about the plaintiffs harm, does not arise if the testimony clearly proves that the harm is from a cause other than the actor’s negligence. Indeed, the testimony often makes it clear that, if the defendant’s conduct had any effect, the effect was substantial. It is only where the evidence permits a reasonable finding that the defendant’s conduct had some effect that the question whether the effect was substantial rather than negligible becomes important.” (Emphases added.) Restatement (Second) of Torts § 431, Comments a, b, at 428-29 (1965).
Section 431 and Comments a and b recognize the possibility that a case may arise in which the defendant’s conduct may have had some effect in causing the plaintiffs harm, but when viewed in the totality of all the evidence in the case, a reasonable trier of fact could find that the effect of defendant’s conduct was “negligible” or “insignificant.” This is the standard that the trial court should have applied to the circumstances in this case.
III. HYPOTHETICAL QUESTIONS
The problem with the majority’s resolution of this case becomes apparent when two hypothetical questions I asked at oral argument are considered. In the first, all of the evidence is the same as that presented (or offered to be presented) in this case, except that the record also shows beyond any doubt that the injured plaintiff worked only once in his life on an asbestos-containing product of the defendant. I asked plaintiffs counsel if this one change in the facts from the present case would be sufficient to permit the defendant in this hypothetical to introduce evidence of deceased plaintiffs other exposures to asbestos products. He responded no.
In the second hypothetical, the facts are again the same as in this case except that the injured plaintiff was not someone who worked on a boiler containing asbestos but instead was a janitor in a school where a boiler manufactured by defendant was installed in the basement. Assume the record shows beyond any doubt that the janitor’s only exposure to defendant’s asbestos-containing product occurred when she was in the janitor’s office in the basement at various times during a single day on which the boiler was being repaired. Assume further that (1) the janitor was married for 30 years to a man who worked during the entire course of their marriage in a plant like the one in Thacker, where raw asbestos and asbestos fibers were constantly present in the air, and (2) according to expert testimony in an offer of proof, asbestos fibers would have been present on the husband’s clothing that he wore home from work. I asked plaintiffs counsel whether under these circumstances defendant would be permitted to introduce evidence of these other exposures to asbestos to account for deceased plaintiff’s mesothelioma when, years later, she sues this defendant. His answer was again no.
In my opinion, counsel’s responses that even in these extreme cases, defendant would still not be permitted to introduce evidence of other exposures to asbestos is entirely consistent with the majority’s decision in this case and one further indication why that decision is wrong.
These hypothetical questions could, of course, continue, with the next one involving contacts even more remote than the last with regard to the issue of the plaintiffs exposure to any asbestos as a result of defendant’s conduct. Examples would be (1) teachers or students on the upper floors of the same school; (2) workers in the school cafeteria; (3) occasional visitors to the school, like parents, three weeks after the boiler repair; or (4) a postal worker or other delivery person who had occasion to be at the school office on a few occasions after the boiler repair. Perhaps further examples could even include the people who resided across the street from the school.
Barring a sole-proximate-cause defense in either of the above hypothetical questions, or in cases where the injured plaintiffs contact with the defendant’s asbestos product is even more remote, defies logic and common sense. Yet, I have trouble finding a principled basis upon which I could conclude that such evidence should be barred in this case (as the majority holds) but not barred in any of these hypotheticals.
IV THE RULE IN OTHER JURISDICTIONS
To help this court understand the issues before it, we have had the benefit of several amici briefs. One of those amici writes the following in support of defendant’s position in this case:
“[T]he Lipke [r]ule exists only in Illinois. In virtually all courts of which we are aware, juries routinely resolve issues of proximate cause in asbestos cases after hearing all the evidence of a plaintiffs exposure history. We are unaware of any reported cases outside of Illinois excluding such evidence on the ground that it would confuse the jury.” (Emphasis in original.)
The amici brief then lists several decisions from jurisdictions throughout the nation that have concluded that evidence of a plaintiffs other asbestos exposures was admissible even though the facts of those cases were not as favorable to the defendant as were the facts in this case.
One such case is AC&S, Inc. v. Asner, 344 Md. 155, 176-77, 686 A.2d 250, 260-61 (1996), in which the Maryland Court of Appeals (the highest court of that state) wrote the following in a case factually similar to this one:
“A factual defense may be based on the negligible effect of a claimant’s exposure to the defendant’s product, or on the negligible effect of the asbestos content of a defendant’s product, or both. In such a case the degree of exposure to a non[ ]party’s product and the extent of the asbestos content of the non[ ]party’s product may be relevant to demonstrating the non[ ]substantial nature of the exposure to, or the asbestos content of, the defendant’s product. But, a defendant would not ordinarily generate a jury issue on lack of substantial factor causation only by showing the dangerousness of a non[ Iparty’s product to which the claimant was exposed. Ordinarily a defendant would have to follow up the evidence of exposure to the products of non[ Jparties with evidence tending to prove that the defendant’s product was not unreasonably dangerous or was not a substantial causal factor. Under these circumstances the proposition that the defendant’s product is not a substantial cause may be made more probable by evidence tending to prove that the claimant’s disease was caused by the products of one or more non[ Jparties. See, e.g., Becker v. Baron Bros., 138 N.J. 145, 649 A.2d 613 (1994) (whether processed chrysotile in brake products posed a risk of causing mesothelioma in users was a sharply disputed issue of fact at trial, so that trial court erred in instructing as a matter of law that the products were defective without a warning).”
Such evidence was presented to the trial court in this case, including “evidence tending to prove that the claimant’s disease was caused by the products of one or more non[ Jparties.” As in Becker, cited above, defendant contends that it presented “substantial evidence that: (i) its boilers contained chrysotile asbestos, and not amphibole asbestos; and (ii) recent scientific studies have concluded that, unlike amphibole asbestos, chrysotile asbestos does not cause mesothelioma. *** Even plaintiffs own experts acknowledge that there is an ongoing scientific debate as to whether chrysotile asbestos is capable of causing mesothelioma.”
Defendants also argue as follows:
“[EJven putting aside the type of asbestos contained in [defendant’s] boilers, the low dose of asbestos that [decedent] received from his exposure to [defendant’s] boilers was not large enough to cause mesothelioma. [Decedent] allegedly worked on 20-25 [of defendant’s] boilers over his 30-year career. *** The testing performed on [defendant’s] boilers showed that the possible lifetime asbestos dose to a person who installed 600 boilers over a 30-year period is many times lower than the ‘lifetime dose that we have just walking around breathing asbestos that is in the air.’ *** Moreover, even plaintiffs experts testified that the dose delivered by chrysotile asbestos is lower than the dose delivered by amphibole asbestos.”
In Warner/Elektra/Atlantic Corp. v. County of DuPage, No. 83 C 8230, slip op. at_(N.D. Ill. March. 6, 1991), then-federal district Judge liana Diamond Rovner wrote the following (in a nonasbestos context) about how excluding evidence of alternative causes of a decedent’s injuries leaves the sole defendant in an untenable position:
“Plaintiffs concede that they bear the burden of demonstrating that [defendant’s] negligence was a proximate cause of their injury, and that [defendant] may counter with evidence that its conduct was not a proximate cause of any injury to plaintiffs. But plaintiffs would have the issue of proximate cause tried in a vacuum, with no reference to the other actors whose conduct may also have been a proximate cause of plaintiffs’ injury. In the trial scenario plaintiffs propose, [defendant] could argue to the jury that it was not responsible for the [events] which injured plaintiffs, but could not suggest who was responsible. Thus, the jury’s natural question — ‘If not you, who?’ — would be left unanswered. That result would be untenable.”
I agree with Judge Rovner’s analysis.
I earlier referred to defendant’s contention that only in Illinois would evidence of the other asbestos exposures in this case be precluded. Neither plaintiff nor any of the amici in support of plaintiff have disputed that contention, which I would expect them to do if it were not correct. Accepting it as true, I find it troubling. Although Illinois is entirely free to establish its own rule of procedure and evidence to apply in Illinois courts, encountering a rule that exists only in Illinois that precludes seemingly important evidence with major consequences for a certain category of defendants should — at a minimum — give us Illinois judges reason to pause and reflect. Having done so, I am now convinced that our singular Illinois rule is no longer justified (assuming it ever was), and I now believe that Illinois should follow our sister states and not preclude this evidence.
V CONCLUSION
The trial court made clear in its extraordinarily thoughtful and scholarly memo denying defendant’s posttrial motion that it was quite unhappy doing so. Yet, given the current state of Illinois law, the court felt itself bound to follow those decisions of the appellate court on point even if the trial court believed them to be erroneous. In this regard, the trial court was correct. However, we are free to disregard erroneous decisions of the appellate court or to distinguish them, as the case may be. Citing section 431 of the Restatement, I conclude we can — and should — distinguish this case from Lipke, Spain, and Kochan. We should reverse and remand for a new trial at which the trial court would be permitted to exercise its discretion regarding whether, consistent with section 431 of the Restatement, defendant should be permitted to pursue its sole-proximate-cause defense by presenting the jury with evidence of the decedent’s other asbestos exposures.