                                        2017 IL App (1st) 153649

                                             No. 1-15-3649

                                              May 9, 2017


                                                                                SECOND DIVISION



                                                 IN THE


                                  APPELLATE COURT OF ILLINOIS


                                            FIRST DISTRICT



     JO ANN STARTLEY, Individually and as            )       Appeal from the Circuit Court
     Executor of the Estate of Ronnie A.             )       Of Cook County.
     Startley, Deceased, and on Behalf of            )
     Their Children,                                 )
                                                     )       No. 14 L 2716
           Plaintiff-Appellant,                      )
                                                     )       The Honorable
           v.                                        )       James M. McGing,
                                                     )       Judge Presiding.
     WELCO MANUFACTURING COMPANY,                    )
                                                     )
           Defendant-Appellee.                       )


                   JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                   Justices Pierce and Mason concurred in the judgment and opinion.


                                              OPINION

¶1         The estate of Ronnie Startley filed a complaint against Welco Manufacturing Company

        (Welco), claiming that asbestos from Welco’s products caused Ronnie to contract

        mesothelioma. The trial court directed a verdict in favor of Welco, because no witness could

        specify how often Ronnie used Welco’s products in his work. We find the evidence sufficient

        to create an issue of material fact as to whether use of Welco’s products caused Ronnie to

        develop mesothelioma. We also hold that Illinois law applies to this case, the estate presented
     No. 1-15-3649



        sufficient evidence to show that Welco had a duty to warn users of the dangers of asbestos

        dust, and the estate presented sufficient evidence to show that the specific kinds of asbestos

        fiber found in Welco’s products caused Ronnie to develop mesothelioma. Accordingly, we

        reverse the judgment entered in favor of Welco and remand for a new trial.

¶2                                          BACKGROUND

¶3         Ronnie lived and worked almost all of his life in Alabama. In his work finishing drywall,

        he regularly used several brands of joint compounds that contained asbestos. Ronnie moved

        with his family to Illinois in 1965. He worked there with his cousin, Walter Startley, for three

        or four months before returning to Alabama.

¶4         In 2013, doctors discovered that Ronnie had contracted mesothelioma. Ronnie filed a

        complaint against a number of corporations that manufactured the brands of joint compound

        that Ronnie used during his lengthy career. Ronnie died in 2014, and his wife Jo Ann

        Startley, as executor for Ronnie’s estate, became the plaintiff in the lawsuit. The estate either

        dismissed outright or settled with most of the defendants. When the case came to trial in

        2015, only one defendant, Welco, remained.

¶5         The estate’s amended complaint included no allegations concerning Ronnie’s extensive

        exposure to asbestos while he worked in Alabama, because Alabama’s statute of limitations

        completely barred all of the estate’s claims as untimely. Welco filed a motion for summary

        judgment, and the estate filed a response. Both parties attached transcripts from several

        depositions to their briefs. Walter, in his discovery and evidence depositions, explained the

        work he and Ronnie did. They came to work sites after other workers hung the drywall.


                                                     2

     No. 1-15-3649



        Walter and Ronnie took 25-pound sacks of dry joint compound, poured some in a five-gallon

        bucket, mixed it with water, and then spread three or four coatings of the compound on the

        drywall. They sanded after each coating, with the most extensive sanding after the final

        coating. Walter could see dust from the joint compound both when they poured the

        compound in the bucket and when they sanded the coatings on the drywall. Expert testimony

        supported the estate’s assertion that the dust from the joint compounds included asbestos, and

        that asbestos from the joint compounds contributed to causing Ronnie to contract

        mesothelioma.

¶6         Walter estimated that he and Ronnie worked on “close to 50” commercial sites, plus

        some houses, in the three or four months they worked together in Illinois in 1965. Walter

        could not recall which brand of joint compound they used at any specific site. The following

        exchange took place during Walter’s evidence deposition:

                     “Q. *** Do you remember the brand names of joint compounds that you’d

                use while you were in Chicago in 1965 with Ronnie?

                     A. USG, Gold Bond, Bestwall and Wel-Cote.

                     Q. Did you use any of those more than the others?

                     A. Wel-Cote and Bestwall was the most we used.

                                                  ***

                     Q. *** Earlier your counsel was asking you whether or not you remembered

                if one product was on site more than the other. Do you recall him asking you

                that?

                                                     3

       No. 1-15-3649



                       A. I couldn’t because, you know, there’s no way of me knowing, really.

                                                    ***

                       Q. *** [Y]ou can’t tell me whether or not you recall there being more jobs

                  that had one product versus the other; is that correct?

                       ***

                       A. Well, I really can’t, because *** that’s a long time ago ***, but I

                  remember the bags was being like gray-looking stuff and I imagine it would be

                  Wel-Cote or—or Bestwall.

                                                    ***

                       Q. *** [C]an you tell me any job site that you remember Ronnie being on

                  where Bestwall was being used?

                       A. Lord, I couldn’t say that. I don’t know, there was so many jobs back

                  then.”

¶7           Welco argued that because Walter did not recall how frequently Ronnie used Welco’s

          Wel-Cote joint compound in Illinois, and he could not specifically identify any particular job

          for which they used Wel-Cote, the evidence did not meet established standards for showing

          that Welco’s products proximately caused Ronnie to contract mesothelioma. The trial court

          denied the motion for summary judgment.

¶ 8	         At the jury trial, Dr. Richard Lemen testified that the term “asbestos” refers to several

          distinct chemical compounds with some similar properties. A form of asbestos called

          “chrysotile” makes up more than 90% of the asbestos used commercially. Although

                                                       4

       No. 1-15-3649



          chrysotile occurs naturally in long fibers, the fibers break down rapidly in processing, and

          relatively short fibers make up the chrysotile used in most products. Two other forms of

          asbestos, amosite and crocidolite, do not break down as rapidly as chrysotile. Some

          researchers have concluded that crocidolite has much greater potency and causes disease at

          much lower concentrations than chrysotile. However, according to Dr. Lemen, “all of the

          fiber types cause mesothelioma.”

¶9           Dr. Lemen testified that scientists started studying the dangers of asbestos in the 1920s.

          He said, “by the early to mid-1930s, the association with the dust was well established, and

          methods were laid out to suppress dust in hopes of reducing the amount of disease.” Doctors

          knew then of the link between asbestos and both asbestosis and lung cancer. Mesothelioma

          occurs more rarely and researchers did not much study the link between asbestos and

          mesothelioma until the early 1960s. But generally, the United States Public Health Service

          had established the danger of asbestos dust by 1964.

¶ 10         Dr. Arnold Brody testified that all varieties of asbestos cause all of the asbestos diseases,

          including mesothelioma. He explained in detail the mechanisms by which asbestos damages

          the cells around the lungs.

¶ 11         Dr. Eugene Mark testified that Ronnie’s lifelong work with joint compounds that

          contained asbestos caused him to contract diffuse malignant mesothelioma, and his exposures

          over several months of work in Illinois were “substantial contributing factors” to causing the

          mesothelioma.

¶ 12         The following exchange took place on cross-examination of Dr. Mark:


                                                      5

        No. 1-15-3649



                        “Q. Do you agree that with regard to asbestos fibers, dimension is important,

                   the length and the width of the fiber?

                        A. To some degree, the longer fibers are more oncogenic than shorter fibers;

                   but beyond that, I wouldn’t be able to say. ***

                        Q. *** Do you agree that fibers shorter tha[n] 5 microns in length have not

                   been proven to cause diffuse malignant mesothelioma?

                        A. Essentially, yes. There is evidence to it, but I don’t believe that the

                   evidence is definitive.”

¶ 13          Dr. Mark added that pure chrysotile, in which less than 1% of the substance consists of

           other forms of asbestos, occurs only in laboratory settings. He said, “in the real world,

           products have 5 percent, 10 percent, 2 percent” contamination with other forms of asbestos.

           And he said, “The majority opinion is that chrysotile causes diffuse malignant mesothelioma

           at any level.” Any level of exposure to chrysotile increases the risk of disease, and the risk

           increases as the level of exposure increases.

¶ 14	         The jury watched an edited version of Walter’s evidence deposition. Welco objected to

           several passages from the deposition, and the trial court resolved the objections. In the

           videorecording played for the jury, Walter said that he and Ronnie used “USG, Gold Bond,

           Bestwall and Wel-Cote.” The parties deleted from the recording the passage in which Walter

           said, “Wel-Cote and Bestwall was the most we used.” The record on appeal does not explain

           the deletion. Welco’s list of objections includes no objection to the deleted testimony. The




                                                           6

       No. 1-15-3649



          jury heard the passage in which Walter said he “imagine[d]” they used Wel-Cote or Bestwall

          most.

¶ 15         The jury also heard questions about the packaging:

                       “Q. *** Can you tell me the color of any of the writing on the bags?

                       A. Black.

                                                             ***

                       Q. *** And the Bestwall, what—what color [bag] would that have been in?

                       A. I can’t—seemed like it was a light—lighter color brown or something,

                  seemed like.”

¶ 16         A photograph of a Wel-Cote bag of the kind used in 1965 showed a bag that one might

          describe as beige or light brown, with both black lettering on a light brown background and

          light brown lettering on a black background.

¶ 17         The parties stipulated that Welco used chrysotile in its joint compound, and that its bags

          bore no warnings.

¶ 18         At the close of the estate’s case, Welco moved for a directed verdict, arguing that the

          evidence did not prove (1) that Welco had a duty to warn users about the danger of working

          with the joint compound, (2) that asbestos of the kind found in Wel-Cote caused Ronnie to

          contract mesothelioma, and (3) that exposure to Welco’s products occurred with sufficient

          frequency for it to constitute a significant factor causing Ronnie to contract mesothelioma.

          Welco also renewed its argument that Alabama law barred the estate’s claim.



                                                        7

       No. 1-15-3649



¶ 19          The trial court said, “there’s only one witness, Walter,” to show that Ronnie used Wel-

          Cote at the jobs in Illinois. The court said:

                  “[Walter] names four different joint compounds that he says they used in

                  Chicago in 1965, that he used with Ronnie: USG, Gold Bond, Bestwall, and

                  Wel-Cote.

                       He doesn’t even really remember anything regarding these bags. He talks

                  about a gray color ***.

                                                      ***

                       He was asked *** ‘You can’t tell me whether or not you recall there being

                  more jobs that had one product versus the other; is that correct?’

                       ‘I really can’t because I don’t—that’s a long time ago.’ Then he says, ‘And I

                  couldn’t really tell, but I remember the bags being like gray looking.’

                       *** [T]here were exhibits entered into evidence. They certainly don’t

                  demonstrate gray looking bags.

                                                               ***

                       *** [T]here’s very minimal product identification in this case. 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. ***

                                                               ***




                                                          8

       No. 1-15-3649



                       The Court finds that the plaintiff has not met its burden *** and that to allow

                  this case to proceed and to be tendered to the jury that any decision for damages

                  would be based upon nothing more than speculation or conjecture.”

¶ 20         The court granted Welco’s motion for a directed verdict. The estate now appeals.

¶ 21                                              ANALYSIS

¶ 22         We review de novo the decision to enter a directed verdict. Sullivan v. Edward Hospital,

          209 Ill. 2d 100, 112 (2004). “A motion for directed verdict *** will not be sustained unless

          all of the evidence so overwhelmingly favors the movant that no contrary verdict based on

          that evidence could ever stand. [Citation.] *** [A]ll of the evidence must be reviewed in a

          light most favorable to the opponent of the motion.” Thacker v. UNR Industries, Inc., 151 Ill.

          2d 343, 353-54 (1992).

¶ 23                                 Frequency, Regularity, and Proximity

¶ 24         The Thacker court held that, if a plaintiff seeks to recover damages from a manufacturer

          because a worker has contracted an asbestos-related disease, the plaintiff must show that “(1)

          [the injured worker] regularly worked in an area where the defendant’s asbestos was

          frequently used and (2) the injured worker did, in fact, work sufficiently close to this area so

          as to come into contact with the defendant’s product.” Thacker, 151 Ill. 2d at 359. The

          Thacker court called this approach the “frequency, regularity and proximity” test. (Internal

          quotation marks omitted.) Thacker, 151 Ill. 2d at 359.

¶ 25         The Thacker court then applied the test to the facts of the case and said:




                                                        9

       No. 1-15-3649



                 “[T]he evidence showed that plaintiff worked in the UNARCO plant for more

                 than eight years and that at least 75 tons of defendant’s raw asbestos was

                 processed at the plant during this time. The defendant notes in its brief that even

                 under the most generous calculation, a maximum of just 3% of the total dust in

                 the plant could have been generated from Manville asbestos and that the actual

                 dust at the decedent’s work site was, in all likelihood, significantly less. In light

                 of plaintiff’s medical evidence which indicated that even slight exposure would

                 adversely affect the decedent’s health, however, and in light of the total volume

                 of asbestos at the UNARCO facility, we cannot say that 3% is insignificant as a

                 matter of law. (Cf. Sholtis v. American Cyanamid Co. (1989), 238 N.J. Super. 8,

                 25-26, 568 A.2d 1196, 1205 (finding that several parties collectively responsible

                 for 5% to 10% of airborne asbestos could each be held liable).) To the contrary,

                 we believe that the evidence developed at trial as to the amount of Manville

                 asbestos likely to have been used at the facility, the nature of the work

                 performed there and the extended period of time the decedent worked within the

                 plant are sufficient for us to conclude that there was frequent use of Manville

                 asbestos at the Bloomington facility where the decedent regularly worked.”

                 (Emphasis in original.) Thacker, 151 Ill. 2d at 360.

¶ 26         Here, in the testimony presented at trial, Walter said little about the frequency with which

          he and Ronnie used Wel-Cote. He remembered a light brown bag of joint compound, but he

          thought Bestwall came in the light brown bag. He made no guess as to the color of Welco’s


                                                      10 

       No. 1-15-3649



          bags. He testified that he could not “recall there being more jobs that had one product versus

          the other.”

¶ 27         Courts from several jurisdictions have applied the frequency, regularity and proximity

          test to similarly vague testimony in a number of cases. In Georgia-Pacific Corp. v. Stephens,

          239 S.W.3d 304 (Tex. Ct. App. 2007), the court summarized cases in which courts found the

          evidence insufficient to show that the defendants’ products caused the plaintiffs’ diseases.

          Stephens worked around asbestos dust emanating from several manufacturers’ products.

          After Stephens contracted mesothelioma, he sued Georgia-Pacific for causing the disease. A

          jury found in favor of Stephens. On appeal, the Stephens court said:

                  “The record does not reveal, however, how frequently this dust came from

                  Georgia-Pacific’s joint compound, as opposed to one of the other joint compound

                  products [Stephens’s] coworkers recalled seeing on their job sites. [Stephens’s]

                  coworkers recalled seeing ten different joint compound products: Kaiser Gypsum,

                  Bestwall, Flintkote, Gold Bond, Georgia-Pacific Ready-mix, Georgia-Pacific dry

                  powder, Kelly Moore patching, Paco, Durabond, and USB. Lenius testified that

                  Kaiser Gypsum, Gold Bond, and Flintkote were used most frequently.

                        In this record, there is no evidence concerning the percentage of Georgia-

                  Pacific joint compound used in comparison to the quantity of other products used

                  on [Stephens’s] job sites, nor any quantitative estimate of the number of times

                  Georgia-Pacific joint compound was used on [Stephens’s] job sites. On the other

                  hand, there is evidence that three other joint compounds were used more


                                                      11 

No. 1-15-3649



          frequently than Georgia-Pacific’s product. Thus, although there was evidence that

          [Stephens] was exposed to asbestos-containing joint compound generally, there

          was no quantitative evidence presented upon which [Stephens’s] experts could

          rely to determine that he was exposed to Georgia-Pacific’s product in sufficient

          quantities to have increased his risk of developing mesothelioma. [Citation.]

                Other courts that have considered similar factual scenarios have reached the

          same conclusion. For example, the Eastland Court of Appeals recently decided a

          case in which a brake worker had inhaled asbestos dust from installing the brake

          products of six different manufacturers. Vaughn v. Ford Motor Co., 91 S.W.3d

          387, 393 (Tex.App.—Eastland 2002, pet. denied). When Vaughn was asked

          whether he had used the various products equally, one more than another, or one

          less than another, he replied that he did not know. Id. The court, applying Illinois

          law regarding the frequency-regularity-proximity test, concluded that, ‘[a]lthough

          there was evidence from which a jury could have found that Vaughn’s exposure

          to asbestos-containing brake products was a cause of his [mesothelioma] and

          evidence that each exposure contributed to his disease, there was no evidence

          from which a jury could have found that Vaughn was frequently exposed to any

          particular defendant’s brake product.’ Id. at 392, 394.

                Likewise, the United States Court of Appeals for the Eighth Circuit decided a

          case in which several witnesses testified that they had either seen or installed

          Owens-Corning Kaylo insulation at a tire plant. See Jackson [v. Anchor Packing


                                               12 

       No. 1-15-3649



                  Co.], 994 F.2d [1295, 1304 (8th Cir. 1993)]. The evidence indicated that

                  numerous other insulation products were also in use at the plant. See id. at 1299.

                  The court found that the plaintiffs had failed to meet the frequency-regularity­

                  proximity test ***.” Stephens, 239 S.W.3d at 318-19.

          See also Robertson v. Allied Signal, Inc., 914 F.2d 360, 383 (3d Cir. 1990) (frequency,

          regularity, and proximity test not met where no witness could say how much of

          defendant’s product workers used and how many times they used it in relevant area).

¶ 28          We find this case distinguishable from Stephens insofar as Walter identified Wel-Cote as

          one of the joint compounds most likely used more frequently than the others. But we also

          find more persuasive authority that apparently conflicts with Stephens and the authorities

          cited therein.

¶ 29          In Holcomb v. Georgia Pacific, LLC, 289 P.3d 188 (Nev. 2012), Holcomb inhaled dust

          from joint compounds made by several different manufacturers, but he could not specify how

          often he used any single manufacturer’s compound. The trial court entered summary

          judgment against Holcomb. On appeal, the Holcomb court said:

                  “Holcomb testified that he used Kelly-Moore, Kaiser Gypsum, and Georgia

                  Pacific products on numerous occasions and in several locations over an

                  approximately seven-year period ***. While he could not identify the particular

                  packaging, logos, or names of some of the products, and he could not identify

                  specific locations and jobs on which he used the products 40 years ago, that

                  level of identification is not required. Ultimately, his testimony and other


                                                     13 

No. 1-15-3649



          evidence provide the basis for a reasonable inference that Holcomb’s

          mesothelioma was caused by exposure to each of the respondents’ products.

                                                ***

                Holcomb presented evidence that he used Kelly-Moore’s Paco joint-

          compound brand, including Paco Quik-Set, in Florida and Las Vegas. ***

          Holcomb stated that he used Kelly-Moore’s Paco products numerous times

          throughout the period. This is more than a minimal amount and, when

          considered with Holcomb’s asserted direct exposure to asbestos in the product,

          may amount to regular and proximate exposure over an extended period

          sufficient to cause mesothelioma. Accordingly, a jury could reasonably infer that

          Kelly-Moore’s Paco products were a substantial factor in the development of

          Holcomb’s cancer.

                ***

                *** Holcomb testified that he was accustomed to using Kaiser Gypsum’s

          products throughout his years in both Florida and Las Vegas. Holcomb testified

          that he used Kaiser Gypsum’s products ‘on several jobs, lots and lots.’ ***

          Putting this into context with the medical evidence that minimal dosages of

          asbestos can contribute to mesothelioma and the more relaxed nature of the test

          in mesothelioma cases, [citation], we conclude that Holcomb has presented

          sufficient evidence to defeat summary judgment against Kaiser Gypsum. ***

                ***


                                             14 

       No. 1-15-3649



                       Holcomb testified that he used Georgia Pacific brand joint-compound

                  products on countless jobsites in Florida and Las Vegas and was ‘accustomed to

                  using’ Georgia Pacific products. Holcomb recalled seeing the Georgia Pacific

                  name on bags, recalled using Georgia Pacific products ‘a lot,’ ‘many times,’ and

                  remembered using Georgia Pacific products when working at the motel.

                  Holcomb identified the Georgia Pacific brand joint compound as one he often

                  used between 1969 and 1973 in Florida and 1975 and 1978 in Las Vegas.”

                  Holcomb, 289 P.3d at 198-99.

¶ 30         The Holcomb court reversed the summary judgment entered in favor of Kelly Moore,

          Kaiser Gypsum and Georgia Pacific. Holcomb, 289 P.3d at 200; see also Rotondo v. Keene

          Corp., 956 F.2d 436, 442 (3d Cir. 1992) (frequency, regularity, and proximity test met where

          plaintiff worked in boiler room two days per week for three months, and pipecoverers used

          defendant’s asbestos-containing product in boiler room 50% of time); Goss v. American

          Cyanamid Co., 650 A.2d 1001, 1003, 1006 (N.J. Super. Ct. App. Div. 1994) (frequency,

          regularity and proximity test met where plaintiff testified that most asbestos pipe covering he

          used was manufactured by defendant).

¶ 31         We find Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), especially persuasive.

          Tragarz, a sheet metal worker suing to recover damages related to mesothelioma, testified

          that he sometimes cut Kaylo asbestos products and sometimes worked alongside insulators

          and pipefitters when they cut and installed Kaylo asbestos products. He worked with Kaylo

          products “off and on, all over.” (Internal quotation marks omitted.) Tragarz, 980 F.2d at 414.


                                                      15 

       No. 1-15-3649



          No witness could name a specific job site at which Tragarz worked with or near Kaylo

          products. The Tragarz court summarized the testimony of other witnesses who said that

          “Tragarz was exposed to Kaylo asbestos products on more than one occasion,” and “Kaylo

          *** was on the majority of sites [the witness] worked from the mid-1960s onward.” Tragarz,

          980 F.2d at 419.

¶ 32         The Tragarz court then applied the frequency, regularity and proximity test to the

          evidence:

                  “[The] frequency, regularity, and proximity test is not a rigid test with an

                  absolute threshold level necessary to support a jury verdict. *** [T]he frequency

                  and regularity prongs become less cumbersome when dealing with cases

                  involving diseases, like mesothelioma, which can develop after only minor

                  exposures to asbestos fibers. ***

                       ***

                       *** This does not mean, however, that the frequency, regularity, and

                  proximity test is irrelevant when determining whether the plaintiff has proved

                  that the exposure to defendant’s product was a substantial factor in causing the

                  resulting disease. Rather, this simply means that these factors become somewhat

                  less critical when a party puts forth direct evidence of exposure to a defendant’s

                  products.

                       Not only is the so-called frequency, regularity, and proximity test less vital in

                  cases involving direct evidence, *** the frequency, regularity, and proximity


                                                        16 

       No. 1-15-3649



                  test becomes even less rigid for purposes of proving substantial factor when

                  dealing with cases in which exposure to asbestos causes mesothelioma. The ***

                  reason for this diminished importance is that mesothelioma can result from

                  minor exposures to asbestos products ***.” Tragarz, 980 F.2d at 420-21.

¶ 33         The Tragarz court found the evidence sufficient to support a jury verdict in favor of

          Tragarz.

¶ 34         Here, Ronnie developed mesothelioma after repeated exposure to asbestos. Although

          Walter could not say how frequently he and Ronnie used Wel-Cote for their work in Illinois,

          he testified that they used it for some of their jobs; in the deleted portion of the evidence

          deposition, he testified that they used Bestwall and Wel-Cote more than other brands, while

          in the deposition shown at trial, he said only he “imagine[d]” they used Bestwall and Wel-

          Cote more. Because the estate’s experts testified that relatively low levels of exposure

          contribute to causing mesothelioma, here, as in Tragarz, a jury could find the exposures to

          Wel-Cote in Illinois constituted a substantial factor in causing the injury.

¶ 35         The trial court heard Welco’s argument about the frequency, regularity, and proximity

          test and watched Walter’s evidence deposition before trial and found the evidence sufficient

          to present a genuine issue of material fact as to whether exposure to Wel-Cote constituted a

          substantial factor causing the injury. We see only one significant difference between the

          evidence presented with the motion for summary judgment and the evidence presented at

          trial. With no explanation in the record for the change, the videorecording played at trial did




                                                       17 

       No. 1-15-3649



          not include Walter’s testimony, “Wel-Cote and Bestwall was the most we used.” We find the

          unexplained alteration insufficient to justify taking the question of causation from the jury.

¶ 36                                Other Bases for Affirming the Judgment

¶ 37         Anticipating that this court might reject the trial court’s application of the frequency,

          regularity, and proximity test, Welco has advanced three other bases for affirming the

          judgment entered in its favor. Welco argues (1) Alabama law should apply, (2) Welco had no

          duty to warn, and (3) the estate did not prove that Welco’s chrysotile fibers caused injury.

¶ 38                                             Choice of Law

¶ 39         In general, “the local law of the State where the injury occurred should determine the

          rights and liabilities of the parties, unless [another state] has a more significant relationship

          with the occurrence and with the parties.” Ingersoll v. Klein, 46 Ill. 2d 42, 45 (1970). That is,

          “a presumption exists, which may be overcome only by showing a more or greater

          significant relationship to another state.” (Emphasis in original.) Townsend v. Sears, Roebuck

          & Co., 227 Ill. 2d 147, 163 (2007).

¶ 40         To decide whether the circumstances overcome the presumption under the facts of a case,

          the court should consider:

                       “ ‘(a) the place where the injury occurred,

                       (b) the place where the conduct causing the injury occurred,

                       (c) the domicil, residence, nationality, place of incorporation and place of

                  business of the parties, and

                       (d) the place where the relationship, if any, between the parties is centered.

                                                        18 

       No. 1-15-3649



                  These contacts are to be evaluated according to their relative importance with

                  respect to the particular issue.’ ” Townsend, 227 Ill. 2d at 160 (quoting

                  Restatement (Second) of Conflict of Laws § 145(2), at 414 (1971)).

¶ 41          Welco emphasizes that Ronnie lived and worked almost all of his life in Alabama, and he

          used Wel-Cote in Alabama. Ronnie’s treating physicians and his family all live in Alabama.

          However, the estate claimed damages only from the injuries inflicted while Ronnie worked

          with Wel-Cote in Illinois in 1965, when Ronnie and his family lived in Illinois. Because the

          injury at issue occurred in Illinois, Ingersoll establishes a presumption that Illinois law

          applies. The conduct that caused the injury included the shipment of Wel-Cote to Illinois,

          where Ronnie’s employer put the product to its intended use. See Adams v. Buffalo Forge

          Co., 443 A.2d 932, 935 (Me. 1982). The parties’ relationship at the time of injury centered in

          Illinois. See Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 437 (Mo. 1984). Applying the

          Townsend factors, and in view of the Ingersoll presumption, we hold that the trial court

          correctly applied Illinois law to the litigation.

¶ 42                                              Duty to Warn

¶ 43          A plaintiff who seeks to recover from a manufacturer for failure to warn users of the

          dangers of a product must show that “the defendant manufacturer knew or should have

          known of the danger that caused the injury, and that the defendant manufacturer failed to

          warn plaintiff of that danger.” Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 35 (1980). Dr.

          Lemen testified that scientists studied the dangers of asbestos dust in the 1920s and 1930s,

          and by the early 1960s the United States Public Health Service had confirmed that inhaling


                                                         19 

       No. 1-15-3649



          asbestos dust caused several severe diseases. A trier of fact could infer that Welco, as a

          manufacturer of asbestos products, should have known of the dangers of inhaling asbestos

          dust before 1965. See Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 206-08

          (1983). We find that the estate has presented sufficient evidence to withstand a motion for a

          directed verdict on the issue of whether Welco had a duty to warn Ronnie of the dangers of

          inhaling asbestos dust.

¶ 44                                       Danger of Chrysotile

¶ 45         Finally, Welco focuses on a single statement from Dr. Mark, claiming that the testimony

          requires entry of a judgment in favor of Welco. In pretrial proceedings, one of Welco’s

          codefendants presented a study that concluded that about two-thirds of the chrysotile from

          one specific mine broke down into fibers less than five microns in length before use in

          manufacturing. When asked the question, “Do you agree that fibers shorter tha[n] 5 microns

          in length have not been proven to cause diffuse malignant mesothelioma?” Dr. Mark

          answered, “Essentially, yes. There is evidence to it, but I don’t believe that the evidence is

          definitive.”

¶ 46         We find that this testimony does not require the jury to ignore Dr. Mark’s opinion that

          exposure to Welco’s joint compound substantially contributed to Ronnie’s development of

          diffuse malignant mesothelioma. Nor does Dr. Mark’s testimony negate Dr. Lemen’s and Dr.

          Brody’s testimony that all forms of asbestos cause mesothelioma. Most significantly, Welco

          presented no evidence to rebut Dr. Mark’s testimony that chrysotile fiber used in

          manufacturing lacks the purity of laboratory chrysotile, and that chrysotile for manufacturing


                                                     20 

       No. 1-15-3649



          includes a mixture of about 2% to 10% of the more dangerous longer fibers. Moreover, Dr.

          Mark testified that experiments provide some evidence of a connection between short fiber

          asbestos and diffuse malignant mesothelioma. Welco cites no case or statute holding that

          plaintiffs cannot recover without definitive experimental proof of the causal relationship

          between a known hazard and a plaintiff’s specific disease. We find the evidence of the

          danger of chrysotile, as used in manufacturing, sufficient to withstand Welco’s motion for

          directed verdict.

¶ 47                                         CONCLUSION

¶ 48         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 trial court correctly

          applied Illinois law because the injury occurred in Illinois, and no countervailing

          considerations overcame the presumption that Illinois law should apply. Dr. Lemen’s

          testimony established that Welco had a duty to warn the persons who used its asbestos

          products of the dangers of inhaling asbestos dust. A finder of fact could rely on expert

          testimony concerning the link between all forms of asbestos and mesothelioma. Accordingly,

          we reverse the judgment entered in favor of Welco and remand for a new trial.

¶ 49         Reversed and remanded.




                                                     21 

