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Appellate Court Affirms Decision That Plaintiff's Asbestos Exposure Claim Was Unproven

Rick Kornak provides sharp news and insightful articles for the Mesothelioma Cancer Alliance.

Rick Kornak

January 07, 2015

Bloomington, Illinois - Referring to the expert testimony of Arthur Frank, head of the environmental and occupational health department at Drexel University, the Fourth District Appellate Court affirmed a McLean County court’s verdict in an asbestos personal injury case. For 45 years, Mr. Frank has researched the respiratory health effects of asbestos exposure; however, the nature of his testimony could have confused jurors.

The case involved plaintiff Carol Holloway, a former employee at the Eureka vacuum cleaner factory, who claimed to have developed asbestosis as a result of on-site exposure to the toxin. Ms. Holloway alleged that she was exposed to asbestos through contaminated insulation that was delivered by Sprinkmann Sons, a now-defunct entity that did business with Eureka during Ms. Holloway’s tenure in the 1960s and ’70s.

The ambiguity of Mr. Frank’s testimony stemmed from the difficulty in measuring the levels of exposure that could subsequently result in the development of an asbestos-related disease. Mr. Frank acknowledged that exposure to asbestos, a naturally occurring mineral, is impossible to avoid, and that everyone experiences some level of exposure. He also stated that a “threshold” exists, and that crossing that threshold can lead to respiratory illnesses, such as asbestosis or mesothelioma. The problem, he said, was in identifying that threshold and pinpointing the exposure’s attribution. “Nobody really knows the dose,” Mr. Frank said in his testimony, “but everybody agrees that it takes relatively a lot of asbestos to give you asbestosis.”

Using terminology like “relatively a lot” led jurors in the McLean County court to side with the defendant, Sprinkmann Sons. Following an appeal, the appellate court agreed with the lower court’s assessment, finding that Ms. Holloway had not proven her claim, and that one could only speculate that the plaintiff’s disease was the result of exposure at the Eureka factory.

In explaining the appellate court’s decision, Justice Thomas Appleton wrote, “On the one hand, [Mr. Frank] testified it took ‘relatively a lot’ of asbestos to give you asbestosis, and he was unable to say how much ‘relatively a lot’ was. On the other hand, he testified that when someone had asbestosis, each and every exposure to any asbestos product had to be regarded as a cause. That seems to mean that if someone, by exposure to an undisturbed asbestos product, breathed no greater quantity of asbestos fibers than the person would have breathed in a pure state of nature, say, when hiking in the mountains, that product nevertheless must be regarded as one of the causes of the person’s asbestosis.” Thus, Justice Appleton concluded, a paradox was presented to the McLean County jurors, in which there was no proof that the plaintiff’s exposure threshold had been crossed through her employment at Eureka.

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