Kessinger v. Grefco
Annotate this Case
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 79809--Agenda 19--May 1996.
OTTO KESSINGER et al., Appellees, v. GREFCO, INC., Appellant.
Opinion filed October 18, 1996.
JUSTICE McMORROW delivered the opinion of the court:
In this appeal we are asked to determine whether the appellate
court misapplied the doctrine of offensive collateral estoppel when
it reversed a jury verdict in favor of defendant and remanded the
cause for a new trial. The seven plaintiffs are four male employees
of Union Asbestos and Rubber Company (UNARCO) or its successor,
Owens-Corning Fiberglas Corporation, and the wives of three of the
employees. Defendant, Grefco, Inc., and its predecessor supplied
diatomaceous earth, a type of silica, to UNARCO and Owens-Corning
for industrial uses, including the manufacture of hardboard
insulation and pipe covering. During their employment in the 1950s
and 1960s, the four male plaintiffs were exposed to both asbestos
and diatomaceous earth at UNARCO's plant in Bloomington, Illinois.
They filed suit claiming, inter alia, that Grefco had breached a
duty to warn them of the risk of contracting pulmonary fibrosis
from inhaling dust from diatomaceous earth. The female plaintiffs
sought damages based on loss of consortium.
Before trial, plaintiffs moved the trial court to bar Grefco
from claiming that pulmonary fibrosis cannot be caused by exposure
to natural diatomaceous earth. In support, plaintiffs cited
Kessinger v. Grefco, Inc., No. 85--3092 (C.D. Ill. 1987)
(unpublished order), aff'd, 875 F.2d 153 (7th Cir. 1989)
(Kessinger). In Kessinger, a UNARCO employee from the same
Bloomington plant that employed plaintiffs recovered damages based
on the theory that he developed pulmonary fibrosis from exposure to
products or dust containing diatomaceous earth, and that Grefco
breached a duty to warn of such risk, proximately causing the
employee's injuries. In the instant case, the trial court granted
plaintiff's request to bar Grefco from contesting that diatomaceous
earth could cause silicosis, the type of pulmonary disease that can
result from exposure to diatomaceous earth. The trial court also
granted plaintiff's motion to preclude Grefco from arguing that its
predecessor, rather than Grefco, was responsible for the sales of
diatomaceous earth to the UNARCO plant where plaintiffs worked.
However, the trial court denied plaintiffs' subsequent requests to
additionally estop Grefco from arguing to the jury that natural
diatomaceous earth could not cause fibrosis because plaintiffs were
not miners with long-term exposure to the earth dust but instead
were employed at an "end use" manufacturing site where exposure to
the diatomaceous earth was limited in duration and intensity.
Following trial, the jury returned a verdict in favor of
Grefco and against all plaintiffs. In their answers to special
interrogatories, the jury found that none of the four male
plaintiffs suffered from silicosis. Plaintiffs appealed, asserting
four instances of trial error. The appellate court held that
reversible error occurred with respect to the applicability of the
collateral estoppel doctrine and remanded for new trial, observing,
"Some of the error that resulted has been waived, but its total
effect requires the grant of a new trial." 275 Ill. App. 3d 275,
285.
We granted Grefco's petition for leave to appeal (155 Ill. 2d
R. 315) and granted the Illinois Manufacturers' Association leave
to file an amicus curiae brief in support of Grefco. 155 Ill. 2d R.
345. For the reasons that follow, we reverse the judgment of the
appellate court.
BACKGROUND
The male plaintiffs' employer, UNARCO, manufactured insulation
products. Trial evidence revealed that from the 1950s to the early
1970s, a combination of asbestos and diatomaceous earth were used
in the manufacture of some of these products. The four male
plaintiffs had worked for the plant for differing periods of time.
The longest employment of any of the male plaintiffs was
approximately five years, from 1965 to 1970. The other three
employees had worked for the plant for considerably shorter periods
ranging from a few months to approximately a year. Grefco was
responsible for the sale of diatomaceous earth, packaged under the
label "Dicalite," and did not supply any asbestos or other
products. The instant appeal of Grefco does not involve asbestos-
related injuries.
In their complaints, plaintiffs alleged that they developed
pulmonary fibrosis from workplace exposure to diatomaceous earth.
At trial, plaintiffs identified silicosis as the specific type of
pulmonary fibrosis for which plaintiffs sought damages from Grefco.
Silicosis was defined at trial as a scarring of the lungs caused by
inhalation of silica, a type of mineral dust found in diatomaceous
earth. According to plaintiffs, they developed silicosis by
inhaling dust from the diatomaceous earth that Grefco supplied in
50-pound bags to the Bloomington UNARCO plant. The evidence
indicated that some of the bags of diatomaceous earth carried
warnings while others did not. According to plaintiffs, Grefco
proximately caused their illnesses by negligently breaching a duty
to warn end users, such as plaintiffs, of the risks of developing
silicosis by inhaling dust from diatomaceous earth.
Dr. Herbert Abrams, board certified in preventative medicine
and public health, testified for plaintiffs. Based on his study of
the medical records, chest X rays, and CAT scans of the four male
plaintiffs, he believed that all four had developed both asbestosis
and silicosis.
Dr. Robert Jones and Dr. David Cugell testified for Grefco.
Dr. Cugell is director of the pulmonary function laboratory at
Northwestern Memorial Hospital in Chicago. Dr. Jones is a professor
at Tulane Medical School who limits his practice to lung diseases.
Both doctors examined the chest X rays and CAT scans of the four
male plaintiffs. They concluded that almost all of the fibrosis
shown thereon began in the lower part of the lungs, thereby
indicating the presence of asbestos-related conditions rather than
silicosis. Drs. Jones and Cugell testified that they found no
evidence of silicosis on any of the X rays.
The former plant manager of UNARCO, Edward Weaver, testified
in Grefco's defense. According to Weaver, workers at the plant were
given medical examinations out of concern for asbestosis, but he
was never aware that there was a hazard associated with breathing
diatomaceous earth dust. Other evidence produced by Grefco
indicated that natural diatomaceous earth poses no significant
health hazards outside the mining and milling processes in which
exposure to dust is prolonged and continuous.
According to Grefco, exposure to natural diatomaceous earth
dust could cause silicosis in miners and those involved in the
mining and milling process only if inhalation of the dust was
intensive and continuous for long periods of time. In contrast, end
users of the product, such as those persons involved in
manufacturing the insulation products from the diatomaceous earth
at the UNARCO plant, were highly unlikely to contract silicosis,
particularly if their exposure to the dust was infrequent or of
short duration.
Grefco also presented evidence distinguishing between the
health risks associated with the natural form of diatomaceous
earth, which Grefco supplied to UNARCO, and the calcined form,
which Grefco did not supply to UNARCO. According to the evidence
presented, calcined diatomaceous earth results from a process of
heating the earth at very high temperatures, which partially
converts the earth to a crystalline substance. When the calcined
diatomaceous earth is cut for industrial use, the resulting dust
apparently can pose a significant health hazard to persons exposed
for a period of two to five years.
In addition to its primary defense that plaintiffs did not
have silicosis and that Grefco did not breach a duty to warn of
dangers resulting from natural diatomaceous earth dust, Grefco
raised the affirmative defense of intervening causation. This
defense was based on the theory that at the time the four men
worked at the UNARCO plant, their employers knew or should have
known that the plant was using "fibrotic raw materials" and that
workers' exposure to the materials should have been minimized by
the taking of adequate safety measures at the workplace. According
to Grefco, UNARCO's acts or omissions in regard to safety measures
were not foreseeable by Grefco and constituted the intervening
proximate cause of plaintiffs' injuries.
At the request of Grefco, the trial court tendered to the jury
special interrogatories for each male plaintiff asking whether the
jury found that the plaintiff had developed silicosis and, if so,
whether his silicosis was proximately caused by exposure to
diatomaceous earth. Each of the four special interrogatories asked
the following questions:
"A. Do you find that [name of plaintiff] has
silicosis?
Yes_____ No_____
B. Do you find [name of plaintiff]'s exposure to
diatomaceous earth supplied by *** Grefco, Inc. to the
Unarco plaint in Bloomington, Illinois was a proximate
cause of his silicosis?
Yes_____ No_____"
In each of the four tendered special interrogatories, the jury
responded "No" in answer to both questions. The jury returned a
general verdict in favor of Grefco and the circuit court entered
judgment thereon.
On appeal to the appellate court, plaintiffs (1) challenged
the trial court's rulings with respect to Grefco's affirmative
defense of intervening causation and related jury instructions; (2)
argued that the court erred in its ruling on the scope of the
collateral estoppel issues; (3) charged error in the submission of
the special interrogatories to the jury; and (4) contended that
Grefco should have been barred from using photographs at trial that
were not disclosed until the day before trial. With the exception
of the collateral estoppel issue, the appellate court found no
reversible error, particularly in light of the jury's clear
response to the special interrogatories that found none of the
plaintiffs had developed silicosis. However, the appellate court
held that a new trial should be granted because of Grefco's
"continued presentation of the evidence barred by operation of the
doctrine of collateral estoppel." 273 Ill. App. 3d at 284.
The record in the instant appeal includes 85 volumes spanning
more than 17,000 pages, much of which consists of pleadings,
motions, and discovery material that was generated by this complex
multiparty litigation. As noted, plaintiffs raised only four
instances of alleged trial error in their appeal. Three of the four
were resolved against plaintiffs in the appellate court and are not
under review in the instant appeal.
ANALYSIS
In its appeal before this court, Grefco advances two grounds
for reversing the judgment of the appellate court. Grefco argues
that the appellate court's application of the doctrine of offensive
collateral estoppel is erroneous and contradicts recent precedent
of this court and the appellate court. E.g., Herzog v. Lexington
Township, 167 Ill. 2d 288, 296 (1995); Van Milligan v. Board of
Fire & Police Commissioners, 158 Ill. 2d 85, 95 (1994); In re
Owens, 125 Ill. 2d 390 (1988); Betts v. Manville Personal Injury
Settlement Trust, 225 Ill. App. 3d 882 (1992). Alternatively,
Grefco contends that the appellate court erred in granting
plaintiffs a new trial because the special interrogatory answers
reflect the jury's finding that none of the plaintiffs had been
injured by any act or omission of Grefco. Therefore, Grefco
contends, any alleged trial errors did not result in prejudice to
plaintiffs or necessitate a new trial.
I
We begin our analysis by considering the significance of the
jury's special interrogatory answers to the judgment in this case.
To recover legal damages, plaintiffs had the burden of proving by
the preponderance of evidence that Grefco owed them a duty, that
Grefco breached that duty, and that plaintiffs were injured as a
proximate result. The jury explicitly found that none of the four
male plaintiffs suffered from silicosis, the only disease in issue
that was identified by plaintiffs as potentially resulting from
inhalation of diatomaceous earth dust. The record contains
sufficient evidence to support the jury's findings, and plaintiffs
do not contend that either the special interrogatory answers or the
general verdict is against the manifest weight of the evidence.
Therefore, plaintiffs failed to prove an essential element of their
causes of action against Grefco.
In their appeal to the appellate court, plaintiffs claimed
error in the wording of the special interrogatories. However,
plaintiffs did not argue that the interrogatories were
substantively improper or that they failed to address an ultimate
issue of material fact. See 735 ILCS 5/2--1108 (West 1992). The
appellate court held that the special interrogatories "were very
clear because of the evidence" and that no error resulted from the
submission of the special interrogatories to the jury. 273 Ill.
App. 3d at 281. The appellate court further noted that the special
interrogatory answers were consistent with the general verdict
favoring Grefco. In the instant appeal, plaintiffs have not renewed
their challenge to the special interrogatories. Therefore, the
propriety of the special interrogatories is not in dispute.
Notwithstanding the jury's finding that plaintiffs had not
sustained any compensable injury, the appellate court majority
reversed the judgment for Grefco and remanded for new trial. The
appellate court held that the jury's answers to special
interrogatories should not be given controlling effect in the case
at bar because of error "aris[ing] from the collateral estoppel
issue and closely related matters." 273 Ill. App. 3d at 282. The
appellate court concluded that plaintiffs' right to a fair trial
had been undermined when Grefco presented evidence and argument
that should have been precluded by the collateral estoppel effect
of a prior adjudication involving Grefco and a different plaintiff,
Kessinger v. Grefco, Inc., 875 F.2d 153 (7th Cir. 1989).
We reject the appellate court's reasoning with respect to the
dispositive effect to be given the special interrogatories and the
proper scope of collateral estoppel. In our view, the jury's
specific findings that the male plaintiffs did not suffer from
silicosis established that each plaintiff failed to establish his
prima facie cause of action. No plaintiff was found by the jury to
have been injured by tortious acts or omissions of Grefco.
Accordingly, any perceived error in the trial court's discretionary
ruling on collateral estoppel presumably was harmless. See Herzog
v. Lexington Township, 167 Ill. 2d 288, 298 (1995) ("we question
the appellate court's reversal of the jury verdict in favor of
defendant, in light of the special interrogatory answered by the
jury finding that plaintiff was the sole proximate cause of his
injuries"). We do not, however, decide this appeal solely by
confirming the controlling nature of the jury's answers to special
interrogatories. As noted, the appellate court held that the
otherwise controlling nature of the special interrogatories did not
negate error arising from the circuit court's application of the
doctrine of collateral estoppel. For that reason, and because the
appellate opinion in the instant case appears to conflict with
precedent of this court and other appellate decisions, we consider
the proper scope to be given the collateral estoppel doctrine in
the case at bar.
II
According to Grefco, the appellate court misapplied the
doctrine of offensive collateral estoppel by bestowing unduly broad
preclusive effect to the verdict in Kessinger v. Grefco, Inc., 875 F.2d 153 (7th Cir. 1989), a case with significantly different facts
and issues. In Kessinger, an employee of the same UNARCO plant that
employed the instant plaintiffs recovered damages for pulmonary
fibrosis caused by his exposure to natural and calcined
diatomaceous earth over the course of approximately 15 years of
employment. The Seventh Circuit Court of Appeals affirmed the
jury's verdict as not against the weight of the evidence produced
in that case. The federal court's opinion contains few facts
pertinent to the Kessinger plaintiff's medical condition or the
nature and intensity of his exposure to dust from diatomaceous
earth. The issue in the Kessinger opinion that explores Grefco's
liability under products liability law is whether Grefco owed the
plaintiff a legal duty under the facts to warn of dangers
associated with natural diatomaceous earth, and whether breach of
such duty had been proven. With respect to the question of whether
Grefco was aware that a known danger associated with diatomaceous
earth existed during the relevant times, the Seventh Circuit
remarked that the evidence produced at trial was "enough for the
jury to hang its hat on." Kessinger, 875 F.2d at 156. Additionally,
the court held that the record in that case supported the inference
that Grefco had breached its duty to warn plaintiff of the risk of
inhaling diatomaceous earth dust, based on Grefco's alleged failure
to include warnings on bags of Dicalite that were furnished to
UNARCO. Kessinger, 875 F.2d at 157-58.
In the instant case, plaintiffs filed pretrial motions
requesting the circuit court to limit Grefco's evidence by
according collateral estoppel effect to the verdict in Kessinger.
Initially, plaintiffs only sought to preclude Grefco from denying
that exposure to diatomaceous earth could cause silicosis, that
Grefco supplied the substance in issue to UNARCO, and that Grefco,
rather than Grefco's predecessor, was the party legally responsible
for any recovery of plaintiffs. Grefco did not challenge the
estoppel effect to be given the Kessinger case with respect to
these three issues and the circuit court granted plaintiffs'
motion.
Thereafter, plaintiffs filed supplemental motions in limine
seeking to greatly expand the court's previous ruling on the
estoppel issue. Plaintiffs argued that Grefco should not be
permitted to argue or present evidence that silicosis could not
develop in end users, such as plaintiffs, who worked in plants that
used natural diatomaceous earth as an ingredient in other products.
Based on materials produced during discovery, plaintiffs were aware
that Grefco intended to assert that the risk of silicosis from
exposure to natural diatomaceous earth was exceedingly slight for
persons working at sites like the Bloomington UNARCO plant and that
the more likely occurrence of silicosis would be in miners and
workers who were extensively exposed, over 30 to 40 years, to the
dust given off in the mining and milling processes. Grefco's
experts also distinguished between natural diatomaceous earth and
the calcined form, in which high-temperature baking of the earth
results in the formation of cristobalite, a crystalline form of
silica. According to Grefco's experts, the natural form of
diatomaceous earth does not pose a significant health hazard,
particularly where exposure is not of intensive, continuous, and
long-term duration. The calcined form, however, could pose a
significant health hazard to persons exposed for periods estimated
by certain authorities as ranging from two to five years. Grefco
did not supply calcined diatomaceous earth to UNARCO.
In ruling on plaintiffs' supplemental motions in limine on the
estoppel issues, the circuit court considered relevant pleadings
and testimony from the Kessinger trial as well as case law,
including Betts v. Manville Personal Injury Settlement Trust, 225
Ill. App. 3d 882 (1992). The circuit court denied plaintiffs'
supplemental requests to expand the scope of the collateral
estoppel. The trial court held that the general verdict in
Kessinger could not be used to prevent Grefco from asserting that
the nature, intensity, and duration of plaintiffs' exposure to
natural diatomaceous earth in the case at bar was insufficient to
cause silicosis.
In reversing judgment for Grefco and remanding for new trial,
the appellate court in the instant case stated that Grefco "put on
evidence which violated the collateral estoppel created by
Kessinger" and that Grefco "continually violated the estoppel." The
appellate court did not, however, articulate the nature or scope of
"the estoppel" to which it referred. Indeed, no single controlling
issue based on the same facts common to both Kessinger and the
instant case is delineated in the appellate court's opinion. As a
result, we cannot discern the exact ground on which the appellate
court's reasoning rests.
In their brief, plaintiffs posit that "[w]hat the estoppel
order should accomplish is to estop Grefco from a position before
a jury that the diatomaceous earth sold to Bloomington could never
result in disease." It is evident from the record that the circuit
court's order accomplished exactly that. Grefco did not deny that
diatomaceous earth such as that sold to UNARCO could never result
in disease. What Grefco contested was the likelihood of these
plaintiffs contracting silicosis from their relatively minor
exposure to natural diatomaceous earth in the course of their
employment at UNARCO.
The basic theory behind principles of collateral estoppel is
that if two parties undergo a full and fair trial that results in
a final judgment, neither party may seek a different result upon
the same facts and issues in a subsequent lawsuit. When properly
applied, collateral estoppel or issue preclusion promotes fairness
and judicial economy by preventing relitigation in one suit of an
identical issue already resolved against the party against whom the
bar is sought. Defensive use of collateral estoppel occurs when a
defendant invokes the doctrine to prevent a plaintiff from
asserting a claim the plaintiff has previously litigated and lost.
See In re Owens, 125 Ill. 2d 390, 397 (1988). Offensive use of
collateral estoppel "occurs when a plaintiff seeks to foreclose a
defendant from litigating an issue the defendant has previously
litigated unsuccessfully in another action." Owens, 125 Ill. 2d at
397.
This court has repeatedly noted that unrestrained use of
offensive collateral estoppel can frustrate judicial efficiency and
deprive a defendant of a fair trial. E.g., Herzog v. Lexington
Township, 167 Ill. 2d 288, 296 (1995); Van Milligan v. Board of
Fire & Police Commissioners, 158 Ill. 2d 85, 95 (1994); Owens, 125 Ill. 2d at 398-99. Accordingly, this court has "caution[ed] against
the indiscriminate application of offensive collateral estoppel
where there is no mutuality of parties." Herzog, 167 Ill. 2d at
295-96. Traditionally, one party could seek collateral estoppel
against a party opponent only if both had been parties to the prior
lawsuit and thereby bound by the outcome of that suit; this
requirement was referred to as "mutuality." Under the mutuality
requirement, plaintiffs in the instant case would not have been
able to successfully raise a collateral estoppel bar because they
were not parties to or bound by the Kessinger decision. In 1979,
however, this court eliminated the mutuality requirement (Illinois
State Chamber of Commerce v. Pollution Control Board, 78 Ill. 2d 1
(1979)) and set forth the minimum threshold elements that must be
satisfied before the circuit court may conclude that a prior
adjudication precludes litigation of an issue in the case before
it: (1) the issue decided in the prior suit is identical with the
one presented in the pending suit; (2) there was a final judgment
on the merits in the prior adjudication; and (3) the party against
whom the estoppel is asserted was either a party or in privity with
a party in the prior lawsuit. Illinois State Chamber of Commerce,
78 Ill. 2d at 7; accord Herzog, 167 Ill. 2d at 295; Owens, 125 Ill. 2d at 399-400.
In the instant case, the second and third elements are not in
dispute, but Grefco strongly contests the existence of a common and
controlling issue shared by the instant case and Kessinger. This
court has long recognized the importance of the existence of an
identical issue to the operation of issue preclusion:
" `To operate as an estoppel by verdict it is
absolutely necessary that there shall have been a finding
of a specific fact in the former judgment or record that
is material and controlling in that case and also
material and controlling in the pending case. It must
also conclusively appear that the matter of fact was so
in issue that it was necessarily determined by the court
rendering the judgment interposed as a bar by reason of
such estoppel. If there is any uncertainty on the point
that more than one distinct issue of fact is presented to
the court the estoppel will not be applied, for the
reason that the court may have decided upon one of the
other issues of fact.' " Lange v. Coca-Cola Bottling Co.
of Chicago, Inc., 44 Ill. 2d 73, 75 (1969), quoting
Hoffman v. Hoffman, 330 Ill. 413, 418 (1928).
In Lange, this court reversed a summary judgment entered in
favor of a plaintiff who sought to bar defendant from contesting
liability in a personal injury action arising out of a collision
between the parties' vehicles. The basis of the estoppel was a
prior adjudication in which the defendant corporation had sued the
plaintiff for damages to the defendant's truck and lost. This court
held that the general judgment against the defendant corporation in
the prior action could not be used to decide the issue of liability
in the plaintiff's subsequent personal injury lawsuit against the
same defendant, because the earlier judgment contained no specific
findings and could have resulted from the trial court's
determination that neither party was negligent, that both were, or
that only the corporation was negligent. See also Herzog, 167 Ill. 2d at 297 (it is "error [to apply] collateral estoppel where it was
impossible to determine on which issue the plaintiff prevailed in
the previous case").
In the case at bar, both the appellate court majority and
plaintiffs fail to identify the material and controlling factual
finding that was conclusively resolved against Grefco in Kessinger
and which is also the exact and controlling issue central to the
instant litigation. The evidence in the Kessinger trial included
testimony revealing that the plaintiff, a 15-year employee of
UNARCO, had been exposed to dust from both natural and calcined
diatomaceous earth. The general verdict did not, however, reveal
whether the jury found that only calcined or only natural
diatomaceous earth caused the plaintiff's illness, or whether both
forms of the earth contributed to the plaintiff's pulmonary
fibrosis. In the instant case the trial court ruled, and Grefco
agreed, that the result in Kessinger precluded Grefco from
asserting to the jury only that pulmonary fibrosis could never
result from exposure to diatomaceous earth. Grefco did not violate
this ruling and did not deny the possibility that a person could
contract silicosis from inhaling dust from diatomaceous earth. The
circuit court did not grant preclusive effect to the general
verdict in Kessinger, however, on the separate and distinct issue
of whether plaintiffs in the case at bar had sustained the type,
intensity, and duration of exposure to diatomaceous earth that
would result in a significant risk of disease. Nor did the circuit
court prohibit Grefco from distinguishing in the instant case
between the risks associated with calcined and natural diatomaceous
earth, or between the relative risks of miners' and nonminers'
exposure to diatomaceous earth. After reviewing the record we
conclude that the circuit court's rulings on the scope of
collateral estoppel were correct.
The appellate court merely pronounces that the evidence in
Kessinger "indicated that plaintiff had much the same exposure [to
diatomaceous earth dust] as did the male plaintiffs here." 273 Ill.
App. 3d at 282. However, we reject as unfounded the notion that the
Kessinger plaintiff suffered "much the same" exposure as the male
plaintiffs in the case at bar. The plaintiffs in both cases had
different periods of employment during which they were exposed.
They also had different duties and activities at the plant. The
plaintiffs did not share medical histories or current medical
conditions. Presumably, the appellate court would equate the
instant plaintiffs' distinct circumstances and medical conditions
with those of the plaintiff in Kessinger simply because the
plaintiffs in the two lawsuits worked at the same UNARCO plant and
were exposed at some time to diatomaceous earth supplied by Grefco.
That the two cases may share general similarities does not support
the conclusion that the Kessinger verdict worked an estoppel of the
breadth imagined by the appellate court and plaintiffs in the case
at bar.
The appellate court majority also implies error in certain
remarks Grefco made during opening statement and in summation.
These remarks underscored the great number of years of intensive
exposure to natural diatomaceous earth that is required before
silicosis would develop, most likely in the mining and milling
settings as distinct from "end use" manufacturing plants. However,
the record reveals that the parties engaged in extensive pretrial
preparation of the case and presented, without objections from
either side, detailed opening statements to assist the jury in
understanding their respective positions. There is no indication in
the record that the jury was confused or misled by the parties'
arguments. Moreover, Grefco's opening remarks and its summation
were supported by evidence properly admitted at trial. Grefco
presented expert witnesses who stated their opinions that the type
of exposure to natural diatomaceous earth occurring in the instant
case was unlikely to produce disease and in fact had not resulted
in silicosis in plaintiffs. Plaintiffs presented their expert
witness who expressed his belief that plaintiffs had both
asbestosis and silicosis. Therefore, the jury was presented with
evidence specific to the facts of the instant case. Some of the
evidence was medical and scientific in nature, bearing on the
health hazards associated with diatomaceous earth. Grefco was
properly allowed to present evidence and argue that end users of
natural diatomaceous earth ordinarily did not face a significant
health hazard, particularly if they did not inhale the dust over a
long period of time.
Because it is evident that the material issues of fact with
respect to plaintiffs' alleged injuries were not adjudicated by the
Kessinger case, Grefco should not have been barred from litigating
or contesting whether a particular employee at the Bloomington
plant was likely to develop silicosis under the specific
circumstances of that employee's inhalation of diatomaceous earth
dust. That a jury awarded damages to the Kessinger plaintiff, who
sustained injuries following a lengthy exposure to fibrotic
material including natural and calcined diatomaceous earth, bears
little relevance to this or other litigation involving different
plaintiffs with different disease pathologies, different exposure
periods to diatomaceous earth, and different issues that might be
presented in defense. Allowing plaintiffs in the instant case to
benefit from another individual's recovery of damages under
dissimilar circumstances is comparable to permitting patients of a
doctor found liable for malpractice in one patient's surgery to
estop the doctor from fully defending against malpractice suits of
the other patients who had the same operation.
It is important to bear in mind that issues of causation in a
personal injury or products liability case are fact-specific and of
limited relevance beyond the circumstances of the particular
litigation in which such issues are resolved. See, e.g., Marlow v.
American Suzuki Motor Corp., 222 Ill. App. 3d 722, 736-37 (1991),
quoting Goodson v. McDonough Power Equipment, Inc., 2 Ohio St. 3d
193, 203, 443 N.E.2d 978, 987 (1983) ("It would not be prudent to
raise a decision made by one jury in the context of one set of
facts to the standard under which all subsequent cases involving
separate underlying factual circumstances are judged"). Not all who
are exposed to a substance that can cause pulmonary fibrosis
develop a disease. Even if the type or duration of exposure is
substantially the same, as where two individuals worked side-by-
side doing the same tasks for the same length of time, one may
remain disease free while the other does not.
Problems inherent in attempting to apply collateral estoppel
in "exposure" cases are illustrated in In re Agent Orange Product
Liability Litigation, 818 F.2d 145 (2d Cir. 1987). In that case, a
plaintiffs' class of Vietnam War veterans claiming exposure to
Agent Orange asserted a common question regarding whether Agent
Orange could cause disease. According to plaintiffs' argument, the
jury could decide "generic causation," i.e., whether Agent Orange
could cause disease, as an issue common to all class members'
cases. The federal court rejected the argument, noting that the
"relevant question *** is not whether Agent Orange has the capacity
to cause harm, the generic causation issue, but whether it did
cause harm and to whom. That determination is highly
individualistic ***." In re Agent Orange, 818 F.2d at 164-65.
Similarly, in the case at bar the relevant question is not whether
natural diatomaceous earth has the capacity to cause harm or
whether it did or might have caused harm to another plaintiff, but
whether it did in fact cause harm to these plaintiffs. See also
Zurich Insurance Co. v. Raymark Industries, Inc, 118 Ill. 2d 23,
45-48 (1987); Morrissy v. Eli Lilly & Co., 76 Ill. App. 3d 753, 761
(1979) (mere exposure to potentially toxic product does not prove
that the substance caused disease).
Finally, we note that in Betts v. Manville Personal Injury
Settlement Trust, 225 Ill. App. 3d 882 (1992), relied upon by the
circuit court in the instant case and which the dissenting justice
found controlling, Grefco was a defendant and third-party plaintiff
and UNARCO was a third-party defendant in litigation involving the
injured plaintiffs' exposure to asbestos and diatomaceous earth. In
the section of the Betts court's opinion relevant to the doctrine
of collateral estoppel, the appellate court held that the trial
court erred in granting broad preclusive effect to the general
verdict in Kessinger, which thereby impaired Grefco's right to
present a meaningful defense. Specifically, the circuit court in
Betts, attempting to apply the Kessinger verdict to the case before
it, erroneously instructed the jury that they were to apply as
binding certain "findings of fact and law." These findings included
the statement that fibrosis of the lungs is caused by diatomaceous
earth, that Grefco knew of the risks, and that Grefco "was
negligent in failing to warn of the hazards of exposure to
diatomaceous earth, and in particular, the risk of fibrosis of the
lungs by the failure to place warnings on bags of diatomaceous
earth supplied to Bloomington from 1953 to 1967." Betts, 225 Ill.
App. 3d at 926. The appellate court rejected the circuit court's
use of collateral estoppel and explained at length why the
Kessinger verdict was not preclusive of many of the issues
presented in the Betts trial, including the failure to warn theory.
Betts, 225 Ill. App. 3d at 927-28.
Application of the doctrine of collateral estoppel must be
narrowly tailored to fit the precise facts and issues that were
clearly determined in the prior judgment. See, e.g., Lange, 44 Ill. 2d at 75. Even where the threshold elements of the doctrine are
satisfied, and an identical common issue is found to exist between
a former and current lawsuit, collateral estoppel must not be
applied to preclude parties from presenting their claims or
defenses unless it is clear that no unfairness results to the party
being estopped. For example, in Van Milligan, 158 Ill. 2d 85, this
court acknowledged that the threshold requirements might have been
satisfied in a case in which a Chicago police officer was fired
after he was found liable for violating the civil rights of a
citizen in connection with an arrest. This court observed that "it
would be highly unfair to the police officer *** if offensive
collateral estoppel effect were given to the factual findings of
the Federal civil rights suit in this subsequent disciplinary
proceeding in which the police chief seeks the officer's discharge.
We believe that the police officer's substantial interest in a full
hearing, where the grounds for any discipline imposed will be fully
and fairly litigated, militate against the application of
principles of collateral estoppel in this case." Van Milligan, 158 Ill. 2d at 96-97. See also In re Owens, 125 Ill. 2d at 400-01.
We conclude that the circuit court's ruling on the estoppel
effect to be accorded the Kessinger verdict was well within the
scope of its discretion. Accordingly, we reverse the appellate
court's judgment granting plaintiffs a new trial and affirm the
circuit court's judgment on the jury's verdict.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE HARRISON, specially concurring:
I agree with the result reached by the majority for the
reasons stated in part I of its analysis. Because the jury
determined that the plaintiffs did not suffer from silicosis, the
appellate court should not have reversed and remanded for a new
trial based on the circuit court's ruling on collateral estoppel.
The collateral estoppel question had no effect on the outcome of
the case and therefore should not have been addressed by either the
appellate court or this court.
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 79809--Agenda 19--May 1996.
OTTO KESSINGER et al., Appellees, v. GREFCO, INC., Appellant.
Opinion filed October 18, 1996.
JUSTICE McMORROW delivered the opinion of the court:
In this appeal we are asked to determine whether the appellate
court misapplied the doctrine of offensive collateral estoppel when
it reversed a jury verdict in favor of defendant and remanded the
cause for a new trial. The seven plaintiffs are four male employees
of Union Asbestos and Rubber Company (UNARCO) or its successor,
Owens-Corning Fiberglas Corporation, and the wives of three of the
employees. Defendant, Grefco, Inc., and its predecessor supplied
diatomaceous earth, a type of silica, to UNARCO and Owens-Corning
for industrial uses, including the manufacture of hardboard
insulation and pipe covering. During their employment in the 1950s
and 1960s, the four male plaintiffs were exposed to both asbestos
and diatomaceous earth at UNARCO's plant in Bloomington, Illinois.
They filed suit claiming, inter alia, that Grefco had breached a
duty to warn them of the risk of contracting pulmonary fibrosis
from inhaling dust from diatomaceous earth. The female plaintiffs
sought damages based on loss of consortium.
Before trial, plaintiffs moved the trial court to bar Grefco
from claiming that pulmonary fibrosis cannot be caused by exposure
to natural diatomaceous earth. In support, plaintiffs cited
Kessinger v. Grefco, Inc., No. 85--3092 (C.D. Ill. 1987)
(unpublished order), aff'd, 875 F.2d 153 (7th Cir. 1989)
(Kessinger). In Kessinger, a UNARCO employee from the same
Bloomington plant that employed plaintiffs recovered damages based
on the theory that he developed pulmonary fibrosis from exposure to
products or dust containing diatomaceous earth, and that Grefco
breached a duty to warn of such risk, proximately causing the
employee's injuries. In the instant case, the trial court granted
plaintiff's request to bar Grefco from contesting that diatomaceous
earth could cause silicosis, the type of pulmonary disease that can
result from exposure to diatomaceous earth. The trial court also
granted plaintiff's motion to preclude Grefco from arguing that its
predecessor, rather than Grefco, was responsible for the sales of
diatomaceous earth to the UNARCO plant where plaintiffs worked.
However, the trial court denied plaintiffs' subsequent requests to
additionally estop Grefco from arguing to the jury that natural
diatomaceous earth could not cause fibrosis because plaintiffs were
not miners with long-term exposure to the earth dust but instead
were employed at an "end use" manufacturing site where exposure to
the diatomaceous earth was limited in duration and intensity.
Following trial, the jury returned a verdict in favor of
Grefco and against all plaintiffs. In their answers to special
interrogatories, the jury found that none of the four male
plaintiffs suffered from silicosis. Plaintiffs appealed, asserting
four instances of trial error. The appellate court held that
reversible error occurred with respect to the applicability of the
collateral estoppel doctrine and remanded for new trial, observing,
"Some of the error that resulted has been waived, but its total
effect requires the grant of a new trial." 275 Ill. App. 3d 275,
285.
We granted Grefco's petition for leave to appeal (155 Ill. 2d
R. 315) and granted the Illinois Manufacturers' Association leave
to file an amicus curiae brief in support of Grefco. 155 Ill. 2d R.
345. For the reasons that follow, we reverse the judgment of the
appellate court.
BACKGROUND
The male plaintiffs' employer, UNARCO, manufactured insulation
products. Trial evidence revealed that from the 1950s to the early
1970s, a combination of asbestos and diatomaceous earth were used
in the manufacture of some of these products. The four male
plaintiffs had worked for the plant for differing periods of time.
The longest employment of any of the male plaintiffs was
approximately five years, from 1965 to 1970. The other three
employees had worked for the plant for considerably shorter periods
ranging from a few months to approximately a year. Grefco was
responsible for the sale of diatomaceous earth, packaged under the
label "Dicalite," and did not supply any asbestos or other
products. The instant appeal of Grefco does not involve asbestos-
related injuries.
In their complaints, plaintiffs alleged that they developed
pulmonary fibrosis from workplace exposure to diatomaceous earth.
At trial, plaintiffs identified silicosis as the specific type of
pulmonary fibrosis for which plaintiffs sought damages from Grefco.
Silicosis was defined at trial as a scarring of the lungs caused by
inhalation of silica, a type of mineral dust found in diatomaceous
earth. According to plaintiffs, they developed silicosis by
inhaling dust from the diatomaceous earth that Grefco supplied in
50-pound bags to the Bloomington UNARCO plant. The evidence
indicated that some of the bags of diatomaceous earth carried
warnings while others did not. According to plaintiffs, Grefco
proximately caused their illnesses by negligently breaching a duty
to warn end users, such as plaintiffs, of the risks of developing
silicosis by inhaling dust from diatomaceous earth.
Dr. Herbert Abrams, board certified in preventative medicine
and public health, testified for plaintiffs. Based on his study of
the medical records, chest X rays, and CAT scans of the four male
plaintiffs, he believed that all four had developed both asbestosis
and silicosis.
Dr. Robert Jones and Dr. David Cugell testified for Grefco.
Dr. Cugell is director of the pulmonary function laboratory at
Northwestern Memorial Hospital in Chicago. Dr. Jones is a professor
at Tulane Medical School who limits his practice to lung diseases.
Both doctors examined the chest X rays and CAT scans of the four
male plaintiffs. They concluded that almost all of the fibrosis
shown thereon began in the lower part of the lungs, thereby
indicating the presence of asbestos-related conditions rather than
silicosis. Drs. Jones and Cugell testified that they found no
evidence of silicosis on any of the X rays.
The former plant manager of UNARCO, Edward Weaver, testified
in Grefco's defense. According to Weaver, workers at the plant were
given medical examinations out of concern for asbestosis, but he
was never aware that there was a hazard associated with breathing
diatomaceous earth dust. Other evidence produced by Grefco
indicated that natural diatomaceous earth poses no significant
health hazards outside the mining and milling processes in which
exposure to dust is prolonged and continuous.
According to Grefco, exposure to natural diatomaceous earth
dust could cause silicosis in miners and those involved in the
mining and milling process only if inhalation of the dust was
intensive and continuous for long periods of time. In contrast, end
users of the product, such as those persons involved in
manufacturing the insulation products from the diatomaceous earth
at the UNARCO plant, were highly unlikely to contract silicosis,
particularly if their exposure to the dust was infrequent or of
short duration.
Grefco also presented evidence distinguishing between the
health risks associated with the natural form of diatomaceous
earth, which Grefco supplied to UNARCO, and the calcined form,
which Grefco did not supply to UNARCO. According to the evidence
presented, calcined diatomaceous earth results from a process of
heating the earth at very high temperatures, which partially
converts the earth to a crystalline substance. When the calcined
diatomaceous earth is cut for industrial use, the resulting dust
apparently can pose a significant health hazard to persons exposed
for a period of two to five years.
In addition to its primary defense that plaintiffs did not
have silicosis and that Grefco did not breach a duty to warn of
dangers resulting from natural diatomaceous earth dust, Grefco
raised the affirmative defense of intervening causation. This
defense was based on the theory that at the time the four men
worked at the UNARCO plant, their employers knew or should have
known that the plant was using "fibrotic raw materials" and that
workers' exposure to the materials should have been minimized by
the taking of adequate safety measures at the workplace. According
to Grefco, UNARCO's acts or omissions in regard to safety measures
were not foreseeable by Grefco and constituted the intervening
proximate cause of plaintiffs' injuries.
At the request of Grefco, the trial court tendered to the jury
special interrogatories for each male plaintiff asking whether the
jury found that the plaintiff had developed silicosis and, if so,
whether his silicosis was proximately caused by exposure to
diatomaceous earth. Each of the four special interrogatories asked
the following questions:
"A. Do you find that [name of plaintiff] has
silicosis?
Yes_____ No_____
B. Do you find [name of plaintiff]'s exposure to
diatomaceous earth supplied by *** Grefco, Inc. to the
Unarco plaint in Bloomington, Illinois was a proximate
cause of his silicosis?
Yes_____ No_____"
In each of the four tendered special interrogatories, the jury
responded "No" in answer to both questions. The jury returned a
general verdict in favor of Grefco and the circuit court entered
judgment thereon.
On appeal to the appellate court, plaintiffs (1) challenged
the trial court's rulings with respect to Grefco's affirmative
defense of intervening causation and related jury instructions; (2)
argued that the court erred in its ruling on the scope of the
collateral estoppel issues; (3) charged error in the submission of
the special interrogatories to the jury; and (4) contended that
Grefco should have been barred from using photographs at trial that
were not disclosed until the day before trial. With the exception
of the collateral estoppel issue, the appellate court found no
reversible error, particularly in light of the jury's clear
response to the special interrogatories that found none of the
plaintiffs had developed silicosis. However, the appellate court
held that a new trial should be granted because of Grefco's
"continued presentation of the evidence barred by operation of the
doctrine of collateral estoppel." 273 Ill. App. 3d at 284.
The record in the instant appeal includes 85 volumes spanning
more than 17,000 pages, much of which consists of pleadings,
motions, and discovery material that was generated by this complex
multiparty litigation. As noted, plaintiffs raised only four
instances of alleged trial error in their appeal. Three of the four
were resolved against plaintiffs in the appellate court and are not
under review in the instant appeal.
ANALYSIS
In its appeal before this court, Grefco advances two grounds
for reversing the judgment of the appellate court. Grefco argues
that the appellate court's application of the doctrine of offensive
collateral estoppel is erroneous and contradicts recent precedent
of this court and the appellate court. E.g., Herzog v. Lexington
Township, 167 Ill. 2d 288, 296 (1995); Van Milligan v. Board of
Fire & Police Commissioners, 158 Ill. 2d 85, 95 (1994); In re
Owens, 125 Ill. 2d 390 (1988); Betts v. Manville Personal Injury
Settlement Trust, 225 Ill. App. 3d 882 (1992). Alternatively,
Grefco contends that the appellate court erred in granting
plaintiffs a new trial because the special interrogatory answers
reflect the jury's finding that none of the plaintiffs had been
injured by any act or omission of Grefco. Therefore, Grefco
contends, any alleged trial errors did not result in prejudice to
plaintiffs or necessitate a new trial.
I
We begin our analysis by considering the significance of the
jury's special interrogatory answers to the judgment in this case.
To recover legal damages, plaintiffs had the burden of proving by
the preponderance of evidence that Grefco owed them a duty, that
Grefco breached that duty, and that plaintiffs were injured as a
proximate result. The jury explicitly found that none of the four
male plaintiffs suffered from silicosis, the only disease in issue
that was identified by plaintiffs as potentially resulting from
inhalation of diatomaceous earth dust. The record contains
sufficient evidence to support the jury's findings, and plaintiffs
do not contend that either the special interrogatory answers or the
general verdict is against the manifest weight of the evidence.
Therefore, plaintiffs failed to prove an essential element of their
causes of action against Grefco.
In their appeal to the appellate court, plaintiffs claimed
error in the wording of the special interrogatories. However,
plaintiffs did not argue that the interrogatories were
substantively improper or that they failed to address an ultimate
issue of material fact. See 735 ILCS 5/2--1108 (West 1992). The
appellate court held that the special interrogatories "were very
clear because of the evidence" and that no error resulted from the
submission of the special interrogatories to the jury. 273 Ill.
App. 3d at 281. The appellate court further noted that the special
interrogatory answers were consistent with the general verdict
favoring Grefco. In the instant appeal, plaintiffs have not renewed
their challenge to the special interrogatories. Therefore, the
propriety of the special interrogatories is not in dispute.
Notwithstanding the jury's finding that plaintiffs had not
sustained any compensable injury, the appellate court majority
reversed the judgment for Grefco and remanded for new trial. The
appellate court held that the jury's answers to special
interrogatories should not be given controlling effect in the case
at bar because of error "aris[ing] from the collateral estoppel
issue and closely related matters." 273 Ill. App. 3d at 282. The
appellate court concluded that plaintiffs' right to a fair trial
had been undermined when Grefco presented evidence and argument
that should have been precluded by the collateral estoppel effect
of a prior adjudication involving Grefco and a different plaintiff,
Kessinger v. Grefco, Inc., 875 F.2d 153 (7th Cir. 1989).
We reject the appellate court's reasoning with respect to the
dispositive effect to be given the special interrogatories and the
proper scope of collateral estoppel. In our view, the jury's
specific findings that the male plaintiffs did not suffer from
silicosis established that each plaintiff failed to establish his
prima facie cause of action. No plaintiff was found by the jury to
have been injured by tortious acts or omissions of Grefco.
Accordingly, any perceived error in the trial court's discretionary
ruling on collateral estoppel presumably was harmless. See Herzog
v. Lexington Township, 167 Ill. 2d 288, 298 (1995) ("we question
the appellate court's reversal of the jury verdict in favor of
defendant, in light of the special interrogatory answered by the
jury finding that plaintiff was the sole proximate cause of his
injuries"). We do not, however, decide this appeal solely by
confirming the controlling nature of the jury's answers to special
interrogatories. As noted, the appellate court held that the
otherwise controlling nature of the special interrogatories did not
negate error arising from the circuit court's application of the
doctrine of collateral estoppel. For that reason, and because the
appellate opinion in the instant case appears to conflict with
precedent of this court and other appellate decisions, we consider
the proper scope to be given the collateral estoppel doctrine in
the case at bar.
II
According to Grefco, the appellate court misapplied the
doctrine of offensive collateral estoppel by bestowing unduly broad
preclusive effect to the verdict in Kessinger v. Grefco, Inc., 875 F.2d 153 (7th Cir. 1989), a case with significantly different facts
and issues. In Kessinger, an employee of the same UNARCO plant that
employed the instant plaintiffs recovered damages for pulmonary
fibrosis caused by his exposure to natural and calcined
diatomaceous earth over the course of approximately 15 years of
employment. The Seventh Circuit Court of Appeals affirmed the
jury's verdict as not against the weight of the evidence produced
in that case. The federal court's opinion contains few facts
pertinent to the Kessinger plaintiff's medical condition or the
nature and intensity of his exposure to dust from diatomaceous
earth. The issue in the Kessinger opinion that explores Grefco's
liability under products liability law is whether Grefco owed the
plaintiff a legal duty under the facts to warn of dangers
associated with natural diatomaceous earth, and whether breach of
such duty had been proven. With respect to the question of whether
Grefco was aware that a known danger associated with diatomaceous
earth existed during the relevant times, the Seventh Circuit
remarked that the evidence produced at trial was "enough for the
jury to hang its hat on." Kessinger, 875 F.2d at 156. Additionally,
the court held that the record in that case supported the inference
that Grefco had breached its duty to warn plaintiff of the risk of
inhaling diatomaceous earth dust, based on Grefco's alleged failure
to include warnings on bags of Dicalite that were furnished to
UNARCO. Kessinger, 875 F.2d at 157-58.
In the instant case, plaintiffs filed pretrial motions
requesting the circuit court to limit Grefco's evidence by
according collateral estoppel effect to the verdict in Kessinger.
Initially, plaintiffs only sought to preclude Grefco from denying
that exposure to diatomaceous earth could cause silicosis, that
Grefco supplied the substance in issue to UNARCO, and that Grefco,
rather than Grefco's predecessor, was the party legally responsible
for any recovery of plaintiffs. Grefco did not challenge the
estoppel effect to be given the Kessinger case with respect to
these three issues and the circuit court granted plaintiffs'
motion.
Thereafter, plaintiffs filed supplemental motions in limine
seeking to greatly expand the court's previous ruling on the
estoppel issue. Plaintiffs argued that Grefco should not be
permitted to argue or present evidence that silicosis could not
develop in end users, such as plaintiffs, who worked in plants that
used natural diatomaceous earth as an ingredient in other products.
Based on materials produced during discovery, plaintiffs were aware
that Grefco intended to assert that the risk of silicosis from
exposure to natural diatomaceous earth was exceedingly slight for
persons working at sites like the Bloomington UNARCO plant and that
the more likely occurrence of silicosis would be in miners and
workers who were extensively exposed, over 30 to 40 years, to the
dust given off in the mining and milling processes. Grefco's
experts also distinguished between natural diatomaceous earth and
the calcined form, in which high-temperature baking of the earth
results in the formation of cristobalite, a crystalline form of
silica. According to Grefco's experts, the natural form of
diatomaceous earth does not pose a significant health hazard,
particularly where exposure is not of intensive, continuous, and
long-term duration. The calcined form, however, could pose a
significant health hazard to persons exposed for periods estimated
by certain authorities as ranging from two to five years. Grefco
did not supply calcined diatomaceous earth to UNARCO.
In ruling on plaintiffs' supplemental motions in limine on the
estoppel issues, the circuit court considered relevant pleadings
and testimony from the Kessinger trial as well as case law,
including Betts v. Manville Personal Injury Settlement Trust, 225
Ill. App. 3d 882 (1992). The circuit court denied plaintiffs'
supplemental requests to expand the scope of the collateral
estoppel. The trial court held that the general verdict in
Kessinger could not be used to prevent Grefco from asserting that
the nature, intensity, and duration of plaintiffs' exposure to
natural diatomaceous earth in the case at bar was insufficient to
cause silicosis.
In reversing judgment for Grefco and remanding for new trial,
the appellate court in the instant case stated that Grefco "put on
evidence which violated the collateral estoppel created by
Kessinger" and that Grefco "continually violated the estoppel." The
appellate court did not, however, articulate the nature or scope of
"the estoppel" to which it referred. Indeed, no single controlling
issue based on the same facts common to both Kessinger and the
instant case is delineated in the appellate court's opinion. As a
result, we cannot discern the exact ground on which the appellate
court's reasoning rests.
In their brief, plaintiffs posit that "[w]hat the estoppel
order should accomplish is to estop Grefco from a position before
a jury that the diatomaceous earth sold to Bloomington could never
result in disease." It is evident from the record that the circuit
court's order accomplished exactly that. Grefco did not deny that
diatomaceous earth such as that sold to UNARCO could never result
in disease. What Grefco contested was the likelihood of these
plaintiffs contracting silicosis from their relatively minor
exposure to natural diatomaceous earth in the course of their
employment at UNARCO.
The basic theory behind principles of collateral estoppel is
that if two parties undergo a full and fair trial that results in
a final judgment, neither party may seek a different result upon
the same facts and issues in a subsequent lawsuit. When properly
applied, collateral estoppel or issue preclusion promotes fairness
and judicial economy by preventing relitigation in one suit of an
identical issue already resolved against the party against whom the
bar is sought. Defensive use of collateral estoppel occurs when a
defendant invokes the doctrine to prevent a plaintiff from
asserting a claim the plaintiff has previously litigated and lost.
See In re Owens, 125 Ill. 2d 390, 397 (1988). Offensive use of
collateral estoppel "occurs when a plaintiff seeks to foreclose a
defendant from litigating an issue the defendant has previously
litigated unsuccessfully in another action." Owens, 125 Ill. 2d at
397.
This court has repeatedly noted that unrestrained use of
offensive collateral estoppel can frustrate judicial efficiency and
deprive a defendant of a fair trial. E.g., Herzog v. Lexington
Township, 167 Ill. 2d 288, 296 (1995); Van Milligan v. Board of
Fire & Police Commissioners, 158 Ill. 2d 85, 95 (1994); Owens, 125 Ill. 2d at 398-99. Accordingly, this court has "caution[ed] against
the indiscriminate application of offensive collateral estoppel
where there is no mutuality of parties." Herzog, 167 Ill. 2d at
295-96. Traditionally, one party could seek collateral estoppel
against a party opponent only if both had been parties to the prior
lawsuit and thereby bound by the outcome of that suit; this
requirement was referred to as "mutuality." Under the mutuality
requirement, plaintiffs in the instant case would not have been
able to successfully raise a collateral estoppel bar because they
were not parties to or bound by the Kessinger decision. In 1979,
however, this court eliminated the mutuality requirement (Illinois
State Chamber of Commerce v. Pollution Control Board, 78 Ill. 2d 1
(1979)) and set forth the minimum threshold elements that must be
satisfied before the circuit court may conclude that a prior
adjudication precludes litigation of an issue in the case before
it: (1) the issue decided in the prior suit is identical with the
one presented in the pending suit; (2) there was a final judgment
on the merits in the prior adjudication; and (3) the party against
whom the estoppel is asserted was either a party or in privity with
a party in the prior lawsuit. Illinois State Chamber of Commerce,
78 Ill. 2d at 7; accord Herzog, 167 Ill. 2d at 295; Owens, 125 Ill. 2d at 399-400.
In the instant case, the second and third elements are not in
dispute, but Grefco strongly contests the existence of a common and
controlling issue shared by the instant case and Kessinger. This
court has long recognized the importance of the existence of an
identical issue to the operation of issue preclusion:
" `To operate as an estoppel by verdict it is
absolutely necessary that there shall have been a finding
of a specific fact in the former judgment or record that
is material and controlling in that case and also
material and controlling in the pending case. It must
also conclusively appear that the matter of fact was so
in issue that it was necessarily determined by the court
rendering the judgment interposed as a bar by reason of
such estoppel. If there is any uncertainty on the point
that more than one distinct issue of fact is presented to
the court the estoppel will not be applied, for the
reason that the court may have decided upon one of the
other issues of fact.' " Lange v. Coca-Cola Bottling Co.
of Chicago, Inc., 44 Ill. 2d 73, 75 (1969), quoting
Hoffman v. Hoffman, 330 Ill. 413, 418 (1928).
In Lange, this court reversed a summary judgment entered in
favor of a plaintiff who sought to bar defendant from contesting
liability in a personal injury action arising out of a collision
between the parties' vehicles. The basis of the estoppel was a
prior adjudication in which the defendant corporation had sued the
plaintiff for damages to the defendant's truck and lost. This court
held that the general judgment against the defendant corporation in
the prior action could not be used to decide the issue of liability
in the plaintiff's subsequent personal injury lawsuit against the
same defendant, because the earlier judgment contained no specific
findings and could have resulted from the trial court's
determination that neither party was negligent, that both were, or
that only the corporation was negligent. See also Herzog, 167 Ill. 2d at 297 (it is "error [to apply] collateral estoppel where it was
impossible to determine on which issue the plaintiff prevailed in
the previous case").
In the case at bar, both the appellate court majority and
plaintiffs fail to identify the material and controlling factual
finding that was conclusively resolved against Grefco in Kessinger
and which is also the exact and controlling issue central to the
instant litigation. The evidence in the Kessinger trial included
testimony revealing that the plaintiff, a 15-year employee of
UNARCO, had been exposed to dust from both natural and calcined
diatomaceous earth. The general verdict did not, however, reveal
whether the jury found that only calcined or only natural
diatomaceous earth caused the plaintiff's illness, or whether both
forms of the earth contributed to the plaintiff's pulmonary
fibrosis. In the instant case the trial court ruled, and Grefco
agreed, that the result in Kessinger precluded Grefco from
asserting to the jury only that pulmonary fibrosis could never
result from exposure to diatomaceous earth. Grefco did not violate
this ruling and did not deny the possibility that a person could
contract silicosis from inhaling dust from diatomaceous earth. The
circuit court did not grant preclusive effect to the general
verdict in Kessinger, however, on the separate and distinct issue
of whether plaintiffs in the case at bar had sustained the type,
intensity, and duration of exposure to diatomaceous earth that
would result in a significant risk of disease. Nor did the circuit
court prohibit Grefco from distinguishing in the instant case
between the risks associated with calcined and natural diatomaceous
earth, or between the relative risks of miners' and nonminers'
exposure to diatomaceous earth. After reviewing the record we
conclude that the circuit court's rulings on the scope of
collateral estoppel were correct.
The appellate court merely pronounces that the evidence in
Kessinger "indicated that plaintiff had much the same exposure [to
diatomaceous earth dust] as did the male plaintiffs here." 273 Ill.
App. 3d at 282. However, we reject as unfounded the notion that the
Kessinger plaintiff suffered "much the same" exposure as the male
plaintiffs in the case at bar. The plaintiffs in both cases had
different periods of employment during which they were exposed.
They also had different duties and activities at the plant. The
plaintiffs did not share medical histories or current medical
conditions. Presumably, the appellate court would equate the
instant plaintiffs' distinct circumstances and medical conditions
with those of the plaintiff in Kessinger simply because the
plaintiffs in the two lawsuits worked at the same UNARCO plant and
were exposed at some time to diatomaceous earth supplied by Grefco.
That the two cases may share general similarities does not support
the conclusion that the Kessinger verdict worked an estoppel of the
breadth imagined by the appellate court and plaintiffs in the case
at bar.
The appellate court majority also implies error in certain
remarks Grefco made during opening statement and in summation.
These remarks underscored the great number of years of intensive
exposure to natural diatomaceous earth that is required before
silicosis would develop, most likely in the mining and milling
settings as distinct from "end use" manufacturing plants. However,
the record reveals that the parties engaged in extensive pretrial
preparation of the case and presented, without objections from
either side, detailed opening statements to assist the jury in
understanding their respective positions. There is no indication in
the record that the jury was confused or misled by the parties'
arguments. Moreover, Grefco's opening remarks and its summation
were supported by evidence properly admitted at trial. Grefco
presented expert witnesses who stated their opinions that the type
of exposure to natural diatomaceous earth occurring in the instant
case was unlikely to produce disease and in fact had not resulted
in silicosis in plaintiffs. Plaintiffs presented their expert
witness who expressed his belief that plaintiffs had both
asbestosis and silicosis. Therefore, the jury was presented with
evidence specific to the facts of the instant case. Some of the
evidence was medical and scientific in nature, bearing on the
health hazards associated with diatomaceous earth. Grefco was
properly allowed to present evidence and argue that end users of
natural diatomaceous earth ordinarily did not face a significant
health hazard, particularly if they did not inhale the dust over a
long period of time.
Because it is evident that the material issues of fact with
respect to plaintiffs' alleged injuries were not adjudicated by the
Kessinger case, Grefco should not have been barred from litigating
or contesting whether a particular employee at the Bloomington
plant was likely to develop silicosis under the specific
circumstances of that employee's inhalation of diatomaceous earth
dust. That a jury awarded damages to the Kessinger plaintiff, who
sustained injuries following a lengthy exposure to fibrotic
material including natural and calcined diatomaceous earth, bears
little relevance to this or other litigation involving different
plaintiffs with different disease pathologies, different exposure
periods to diatomaceous earth, and different issues that might be
presented in defense. Allowing plaintiffs in the instant case to
benefit from another individual's recovery of damages under
dissimilar circumstances is comparable to permitting patients of a
doctor found liable for malpractice in one patient's surgery to
estop the doctor from fully defending against malpractice suits of
the other patients who had the same operation.
It is important to bear in mind that issues of causation in a
personal injury or products liability case are fact-specific and of
limited relevance beyond the circumstances of the particular
litigation in which such issues are resolved. See, e.g., Marlow v.
American Suzuki Motor Corp., 222 Ill. App. 3d 722, 736-37 (1991),
quoting Goodson v. McDonough Power Equipment, Inc., 2 Ohio St. 3d
193, 203, 443 N.E.2d 978, 987 (1983) ("It would not be prudent to
raise a decision made by one jury in the context of one set of
facts to the standard under which all subsequent cases involving
separate underlying factual circumstances are judged"). Not all who
are exposed to a substance that can cause pulmonary fibrosis
develop a disease. Even if the type or duration of exposure is
substantially the same, as where two individuals worked side-by-
side doing the same tasks for the same length of time, one may
remain disease free while the other does not.
Problems inherent in attempting to apply collateral estoppel
in "exposure" cases are illustrated in In re Agent Orange Product
Liability Litigation, 818 F.2d 145 (2d Cir. 1987). In that case, a
plaintiffs' class of Vietnam War veterans claiming exposure to
Agent Orange asserted a common question regarding whether Agent
Orange could cause disease. According to plaintiffs' argument, the
jury could decide "generic causation," i.e., whether Agent Orange
could cause disease, as an issue common to all class members'
cases. The federal court rejected the argument, noting that the
"relevant question *** is not whether Agent Orange has the capacity
to cause harm, the generic causation issue, but whether it did
cause harm and to whom. That determination is highly
individualistic ***." In re Agent Orange, 818 F.2d at 164-65.
Similarly, in the case at bar the relevant question is not whether
natural diatomaceous earth has the capacity to cause harm or
whether it did or might have caused harm to another plaintiff, but
whether it did in fact cause harm to these plaintiffs. See also
Zurich Insurance Co. v. Raymark Industries, Inc, 118 Ill. 2d 23,
45-48 (1987); Morrissy v. Eli Lilly & Co., 76 Ill. App. 3d 753, 761
(1979) (mere exposure to potentially toxic product does not prove
that the substance caused disease).
Finally, we note that in Betts v. Manville Personal Injury
Settlement Trust, 225 Ill. App. 3d 882 (1992), relied upon by the
circuit court in the instant case and which the dissenting justice
found controlling, Grefco was a defendant and third-party plaintiff
and UNARCO was a third-party defendant in litigation involving the
injured plaintiffs' exposure to asbestos and diatomaceous earth. In
the section of the Betts court's opinion relevant to the doctrine
of collateral estoppel, the appellate court held that the trial
court erred in granting broad preclusive effect to the general
verdict in Kessinger, which thereby impaired Grefco's right to
present a meaningful defense. Specifically, the circuit court in
Betts, attempting to apply the Kessinger verdict to the case before
it, erroneously instructed the jury that they were to apply as
binding certain "findings of fact and law." These findings included
the statement that fibrosis of the lungs is caused by diatomaceous
earth, that Grefco knew of the risks, and that Grefco "was
negligent in failing to warn of the hazards of exposure to
diatomaceous earth, and in particular, the risk of fibrosis of the
lungs by the failure to place warnings on bags of diatomaceous
earth supplied to Bloomington from 1953 to 1967." Betts, 225 Ill.
App. 3d at 926. The appellate court rejected the circuit court's
use of collateral estoppel and explained at length why the
Kessinger verdict was not preclusive of many of the issues
presented in the Betts trial, including the failure to warn theory.
Betts, 225 Ill. App. 3d at 927-28.
Application of the doctrine of collateral estoppel must be
narrowly tailored to fit the precise facts and issues that were
clearly determined in the prior judgment. See, e.g., Lange, 44 Ill. 2d at 75. Even where the threshold elements of the doctrine are
satisfied, and an identical common issue is found to exist between
a former and current lawsuit, collateral estoppel must not be
applied to preclude parties from presenting their claims or
defenses unless it is clear that no unfairness results to the party
being estopped. For example, in Van Milligan, 158 Ill. 2d 85, this
court acknowledged that the threshold requirements might have been
satisfied in a case in which a Chicago police officer was fired
after he was found liable for violating the civil rights of a
citizen in connection with an arrest. This court observed that "it
would be highly unfair to the police officer *** if offensive
collateral estoppel effect were given to the factual findings of
the Federal civil rights suit in this subsequent disciplinary
proceeding in which the police chief seeks the officer's discharge.
We believe that the police officer's substantial interest in a full
hearing, where the grounds for any discipline imposed will be fully
and fairly litigated, militate against the application of
principles of collateral estoppel in this case." Van Milligan, 158 Ill. 2d at 96-97. See also In re Owens, 125 Ill. 2d at 400-01.
We conclude that the circuit court's ruling on the estoppel
effect to be accorded the Kessinger verdict was well within the
scope of its discretion. Accordingly, we reverse the appellate
court's judgment granting plaintiffs a new trial and affirm the
circuit court's judgment on the jury's verdict.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE HARRISON, specially concurring:
I agree with the result reached by the majority for the
reasons stated in part I of its analysis. Because the jury
determined that the plaintiffs did not suffer from silicosis, the
appellate court should not have reversed and remanded for a new
trial based on the circuit court's ruling on collateral estoppel.
The collateral estoppel question had no effect on the outcome of
the case and therefore should not have been addressed by either the
appellate court or this court.
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