corporate representative for term coke he testified about the products from komei and i think one thing was clear from his testimony is that trump who did not make a dry wall paper but i think even if we make the assumption that did make a dry wall tape i think we still must get to a point where the verdict is overturned and i'd like to explain why we believe that even if you assume the trim co did make this report it dry wall there's no evidence that the tape contained at best and i think that's very important because when we look at the testimony of just someone he says i don't know whether the product i use contained discusses so at that point it was incumbent upon and he said some of the tapes as they call that contained asbestos in those he referred to as the butyl tapes which were an insulation tape that goes in between the windows and then he referred to a foam tape and a sponge tape that also were for the same purposes that deposition was was taken november of twenty sixteen but when he testified at trial and that's to testimony that i'm i'm focusing on he specifically said in this was not refuted by any additional any other evidence biplanes the jury looked at mr kohler and said you're not familiar with the entire product line that gets us to them the assumption that i just put forward to the court we have a purported trem co drywall thing but what says that you know there were a variety of things that could have been done with respect to this purported trim quote drywall tape there could have been products sheets there could have been expert testimony there could have been samples of the product brought in there could have been co workers there could have been someone knowledgeable with the consistency of the product remember factor in all and tell us that you just can't have exposure to the product and said that's enough you've got to show that is to defend its product at that product contained as fast as and that there were sufficient fibers released from that that that led to the condition one is certain and so is our position and even if you get to the point we say ok maybe we said there's a trample dry well take what says that tape contained asbestos what says it it release fibers what says that they were at a sufficient level of exposure to meet that are known nothing does and that's our point with respect to this drywall tape and you know i point out that there were any other some confusion in the records they used the term documents and pages loosely i think but just on a minimum there are supposedly fourteen thousand pages of documents that were released from trim cosa part of the sharpness of the geisha and where in that is any document that know we really don't even need to get the proximate cause right now i think the proximate cause argument is a strong argument on our side but that assumes that there is a drum corps drywall tape and kohler testified that they didn't make a drywall tape now he said  we didn't make a blue or white tape he said we didn't make a table larger than three quarters of an inch or less it was a custom ordered tape now we have mr mr sontag testifying he thinks his boss bought these tapes at the local hardware store these were not custo on the product that's what he testified to and corey testified that our products didn't have a company name on the tape it was only on the packaging of the box that was in the ad because it was a advertising part of the ad product but the interesting thing about that ad i'm glad you brought that up because mr sontag testified that the dry wall tapes that he used didn't have any craft paper backing any release paper well the made has backing crappy and i think that's another distinction and that's actually was next on my list to run through the things that are testifying to the packaging they did trim coated not packages tapes with individual that says that's how their products were made and i know there was some discussion in the examination of mr kohler but his extent of his knowledge of the product line but i would i recall that he was examined with respect one of the exhibits that had a variety of the products listed and there were some that he didn't have as instant into movement here already with others and i think counsel's point in this was you don't know the whole product line here but i think the interesting thing on the rehabilitation mr larson did is this color was clear that he knew the process that was utilized by trim code to make their lives and he he made an analogy to it he called it a strewed tape and he made an analogy to something we're probably all familiar with mark generation plato he said it's like you played a machine you put it in there you squeeze it and outcomes this product he said that's how we make our tape and the manufacturing process that he said he was familiar with the tr is not a manufacturing process it would make a trial and he said that in his testimony it virgin roman numerals i think it was volume seventeen page forty three so i think that's that's something to keep in some mud on it and use that to to make your scenes where you feel some passions with that but that's not the tape that's not to tape that that trend komi so i think from two perspectives in this case you've got franco not making the tape and then you've got even if trunk oh made even if we assume for discussion from home a dry wall tape they failed to prove that it contained asbestos or had fiber release or any level of fiber replace and i think that's critical to the argument that we're trying to make to the court today  we just don't have that here the last thing i want to touch on just briefly and again we've raised this in our brief and we rely on our brief respect to the remaining arguments because the argument about impairment and our position here is that the testimony of d he runs through the objective physical condition of mr sontag and what's he find he doesn't find impairment and he says the condition is not limiting it's not progressing mr sunday had a normal pulmonary function test twice no restriction in his lungs no respiratory difficulties he was in good health did not have restrictive long function yet no shortness of breath no chest pain no symptoms calling causing distress  asbestosis and i know they went back and forth on that but i think the critical part here is that there was no impairment that this gentleman suffered i know there was a testimony from his daughter and or his wife about maybe he can't garden as much as he used to but again we've got remember an eighty two year old gentleman who can go up and down the stairs and not show shortness of breath which is what the medical records show that's pretty good because i'm not that old and i know i have shortness of breath i mean it's a very good thing for this and that's one of the reasons we relied on cases from other jurisdictions that have dealt with the issue of the pearl thickening the asbestos fibers in the long and the cases that we cited from pennsylvania and maryland arizona all made the comment that the mere presence of these unaccompanied by as they put it an objective leave verifiable functional impairment are not enough to show compensable harm and i think the interesting thing is those cases were in part many times were grounded on on the cases in those states where they addressed a fear of cancer a fear of age or fear in fact in something where they didn't actually have an impairment they built on those to reach a conclusion that they that they announced in those cases in the the asbestos products liability case that we cited from pennsylvania actually if he is able to establish that there is a possibility of future injury even those less than fifty percent can be ciro to fifty percent if there's testimony  from a doctor that establishes that the percentage likelihood is there such evidence here well first of all bill it was actually specifically mentioned discussed in the asbestos product litigation which from pennsylvania that was  again what we're asking you to do is in a case where where there's no impairment that's been documented in an objective sense by doctor of a functional impairment you know almost every case we run into we're going to see a petition  has to be the proof otherwise the proof of the standard will always be met by playing the same shores breath or or whatever their claim i think there has to be an objective element and that's what the whole white case talks about and that's what we're saying and objective leave verifiable functional impairment and that would be a doctor for me to test that measures the lung capacity pulmonary function something of that past that nature and says i can document this not just a complaint but i can document this and back this up that's different and it's almost at a time i just want to conclude we think this is a case where the verdict does rise to the level of being against the manifest weight of the evidence which contradicted the evidence it's contrary to the evidence to the point where the jury good morning my name is sandra kelly and i represent the sundays on this appeal and i'm here today to request that you affirm the verdict entered by the mclean county jury in this case i think what you just heard and if you re read the br the evidence in the view most favorable to the plaintiff's position and that's the evidence that you have before you in addition to that there was evidence on all of the various points and one of the things that factor supreme court opinion and back your point so that on all the various elements of the plaintiff's claim the plaintiff needs to set forth evidence on that particular element and there was evidence on each and every element of plaintiff's claim and what the jury did as the province of the jury in these kinds of cases is the jury looked at the evidence looked at the credibility of the witnesses and they they they they they essentially what the jury did was they found in favor of plaintiff on each and every one of those elements they didn't find in favor of the trump of spin on the evidence and there's lots of reasons for that one of the things that justice will wait pointed out was that mr koehler if you look at the briefs and you look at what the trial testimony was is he was the corporate representative  opposition but he was impeached on a number of things in fact one of the arguments that was just made to you was the allegations in this case was that mr sunday used to drywall plaster tape that's not the allegation mr sunday was not a drywall he was a plaster and that's why we sort of have this sort of disconnect when you listen to what trampas says about the mis identification of their claim in this identification mess identification of the tape it does it's not a what the evidence was in the tape in that case one of the things that mr sunday talked to both was that as a plaster he could not do drywall work he did not use drywall tape he used a particular ice tape that was for the purpose of plast and one of the things that occurred in his career as a plasterer that went back to the fifty's was that in the mid part of the one nine hundred seventy s in order to compete with drywall they changed the process to a one step process to make it cheaper essentially where they would use these never said i used to dry wall tape he never even necessarily said what he used was a plaster tape but they used a particular rise tape that served the purpose for this and he said repeatedly it was a trim coat tape the argument that was set forth to you in the papers and also was related to the jury and argued to you just now was well there's no evidence in the point of before no evidence that it was in   and his knowledge as corporate representative when he testified at deposition and as justice holder white point to though was impeached at the trial at least twice was that all of the tapes were specialists containing at least up until the late one nine hundred seventy s when a couple of them started to have a substitute and it wasn't until the one nine hundred ninety s that all of the tapes had discussed this commode what does that mean for this particular case well mr sontag as i indicated to you said that he from go on every single job and it wasn't just him they had laborers that did work with the tape other plasterers that did work with the tape and they would use this tape extensively on each and every single job and not only did they use it  it was something that they used beginning in the mid one nine hundred seventy s at a time when even under color testimony all of the tapes contain this fastness so there was a that even if you look at it at the in the late most favorable to try and go there was a number of years where the only kind of tape that had trunk was name on it that mr sunday could have used contains festus and that was the evidence that was placed before the jury the only argument that was made to you was well there's no fiber release from these these tapes and i think one of the things they point to their papers as well mr sontag i'm self didn't even say that he saw dust when he was cutting and using the tape or others were cutting in using the tape and that really is sort of like a meaningless point in the sense that their own corporate representative koehler indicated that especially us the kind that can be inhaled and respirable and cause disease in individuals can't be seen with the naked eye and when you have a specialist dust that can cause disease you can't see it in here you can't see it on the surface that doesn't get them to the end zone in any respect but there was evidence in the case that there would have been exposure with respect to this for instance at volume c one one eight four of pages forty two to forty three dr frank plaintiff's medical expert he's a physician practices in occupational medicine and disease has done research on a specialist for decades he indicated that all products even those that are of capsulated which is one of the arguments that trump who advanced in this case has the ability to release fibers if they were manipulated in any way and one of the things that he indicated was with respect to things like tapes or gas if you do things that abrade the encapsulated material it causes fibers to get into the air the evidence in this case was that mr sunday he worked in these very small enclosed unventilated area they didn't open windows in these small homes that they were doing residential plastering work they didn't have fans going because it changed the way the plaster would dry and so they would cut this tape they would cut her repeatedly to fill all the seams and this is the kind of activity that would release fibers into the air in addition to that trim go through another corporate representative of a man by the name of mr sturt whose testimony was read to the jury and  their very own health hazard data that they supply in their amnesty sheet so in addition to dr fray saying that if you do something to these tapes and has the ability to release fibers you also have the start of testimony who was it's an admission it was a corporate representative at the method that our product based on our own m s g sheets indicate that as best as fibers once released have the ability to cause these diseases one of which is the lung damage the disease that mr sunday can self developed so there was evidence on all those points that there was five or release there was evidence that they were a specialist contain tapes and all those things the jury weighed the evidence assess the credibility of koehler and they made their determination and  this court just like the trial for should not disturb that verdict because there is evidence on each and every element of plaintiff's claim with respect to that on the medical issues one of the things that was just mentioned to you is that part of the diagnosis of as this ptosis i think that was sort of the theme that i heard there just a moment ago as does ptosis is actually a disease of the inside of alone it's a scarring it's a chronic can condition it's permanent aversive ball and in most instances in individuals it progresses meaning that it gets worse over time as you would expect because people don't develop it right away they eventually develop the scarring and it can get worse even without exposure and over time the disease number two it progresses and number three as dr ross you mentioned if you have an individual that had exposure to develop this affliction they are much more at risk for the development of cancer as for kelly you are new to the jury medical bills that came in without objection from transco in the amount of approximately ten thousand dollars they relate to monitoring they relate to testing palmeri function testing chest x rays c t scans and one of the things that dr indicated was that on at least an annual basis he's doing a continued c t scan or chest x ray imaging of the chest of mr sign bag to ensure that he is not progressing as many people do and also to ensure that he's not developed any kind of cancer that's one of the things that came out in addition one of the other things that i argued to the jury in closing argument was the fact that tram co admitted that mr sunday was injured one of the things that didn't get discussed in this case because they've at least partially settled the joint and several verdict that was entered in this case is there was another defendant in this case frank men and sprague men and trumka had counter claims against each other and the counter claim that was filed by tram co indicated that sprint was negligent and that mr sunday was injured and that he suffered damages as a result that's one of the things that tram co alleged and argued to the jury was that he was injured and he developed this injury from exposure to a specified us they essentially agreed with plaintiff on that point one of the other things that i argued to the jury with respect to the impairment of mr sontag is the family both his wife and his daughters indicated that he was far less able to do what he had before since you've been diagnosed with asthma as ptosis that he had shortness of breath and that he was less able to do things such as gardening and other and other things of that nature than he had previously is a jerk able to hold war damages for that matter aspect they spoke only on the family's testimony absent that of buttons connecting yes best poses to the shortness of breath yeah and i think they are because it's all part of the elements of on with his lungs or his health was related to any past smoking in fact i think what most of the experts in fact on both sides were saying was that mr sontag was actually in pretty good health for somebody of his age he was a smoker and he didn't have a lot of ongoing medical chronic conditions unlike other people his age but he's been very active person and he continued to try to be so with his family had indicated was as much as he would try as much as he tried to put on a good face he was less able to do all of those things regardless of all those points one of the things that the jury is tasked with is to determine not only the existence of the injury but the amount of damages that are workable for them and that comes from the case of espinosa the elgin juliet railroad it's one sixty five bill second one of seven that's the province of the jury to determine and in this case the jury looked at the evidence and they could i mean  repeatedly i diagnosed chosen date with asbestosis i diagnosed him with that injury the question was the impairment and if you look at the damages that the jury awarded in this case this jury i think took a good job and a good look at what the evidence was in the case and they determined that he wasn't somebody that was on oxygen twenty four seven he wasn't somebody that was bedridden and i think that's why they came up with the damage that they did in the case because they examined it based on all of the the facts that were before them in terms of what his impairment was with respect to this injury here saying that they compensated him for impairment i think what they compensated him for was his injury as it was related by the physicians and it wasn't just dr rasi if you look at plaintiff's exhibit one twenty three osis it's fibrosis or scarring of the lung related to his festivus and i think the jury believed the testimony and evaluate the credibility of all of those physicians in determining that yes in fact mr sunday had as best that the short answer is no i don't think there's an illinois case that says as of us ptosis without impairment if we had such a situation is and is not compensable i think the sunday case is different though because i think there was impairment i mean one of the things that dr ross he talked about extensively is because of the five product changes the scarring changes within mr sunday lungs he has less and less last a cd of his tissues in his lung he has less lung that volume but he still falls within the range of what is normal and that sort of i think is the key factor here is mr sontag as i mentioned before he was somebody that was very active he was a healthy guy he smoked very remotely and very little in the past and nobody was able to say you know that those things related of any way shape or form to what his problems were but mr sontag is an individual that he may be in the range of normal but he still has this condition which has affected just from a biologic and physiological standpoint the capacity of his lungs so he may fall within the range of what's normal for somebody that's eighty two but it's not the joe sontag that it was before and that's why when we put forth the evidence of what family had indicated which is that he was less able to do things that he done before that also was evidence of impairment so he had the disease and i think if you look at the actual as best ptosis which is the disease it's an injury as i indicated even trump agreed it was an injury and he had that injury and that's compensable and it's up to the jury to determine then is that injury the one that's been supported by medical opinion to what degree are damages awarded will for that injury and that's what this jury did they assess the evidence in the case they looked at the facts that were presented to them and they made their determination on this was a case where the total jury verdict of between two claims one for one for joe and one for his wife phyllis a loss of consortium was two hundred forty five thousand it's not like they gave them millions of dollars for this but they assessed the evidence because they were presented with all these facts and i think that's when you look at everything in this case this jury carefully considered all of the evidence before there was sontag described that he used everybody knows what that product is can go to the hardware store and buy a white or blue fiber state you can see through doesn't have back backing paper doesn't have crappy for it slightly tacky that's not a look at the product that he describes seen use there is no evidence that fits with the types of products that were manufactured by trumka based on mr koehler's testimony based on the testimony about his familiarity with the processes that were that would go into and these processes do not produce a drywall faith or a plaster tape or a tape that fits mr sunday's description there's no evidence that opposes that and that's why i think this is very critical when we accept the fact that they're saying that there was  answered that in his deposition i think he made it clear bed based on information that he had the time and i think his trial testimony was i refuted that there were three categories of tapes that they made and they made those in the seventy's and two of them didn't contain