2017 IL App (1st) 153649
 

No. 1-15-3649
 

May 9, 2017
 

SECOND DIVISION 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIRST DISTRICT
 

JO ANN STARTLEY, Individually and as ) Appeal from the Circuit Court 

Executor of the Estate of Ronnie A. ) Of Cook County. 

Startley, Deceased, and on Behalf of ) 

Their Children, ) 

) No. 14 L 2716 

Plaintiff-Appellant, ) 

) The Honorable 

v. ) James M. McGing, 

) Judge Presiding. 

WELCO MANUFACTURING COMPANY, ) 

) 

Defendant-Appellee. ) 

JUSTICE NEVILLE delivered the judgment of the court, with opinion. 

Justices Pierce and Mason concurred in the judgment and opinion. 

OPINION 

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

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

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

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

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

develop mesothelioma. We also hold that Illinois law applies to this case, the estate presented 
 

 

 

 

 

 

 

 

 

No. 1-15-3649 

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

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

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

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

¶ 2 BACKGROUND 

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

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

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

or four months before returning to Alabama. 

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

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

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

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

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

2015, only one defendant, Welco, remained. 

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

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

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

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

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

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

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No. 1-15-3649 

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

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

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

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

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

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

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

mesothelioma. 

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

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

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

exchange took place during Walter’s evidence deposition: 

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

use while you were in Chicago in 1965 with Ronnie? 

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

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

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

* * * 

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

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

that? 

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No. 1-15-3649 

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

* * * 

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

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

*** 

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

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

Wel-Cote or—or Bestwall. 

* * * 

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

where Bestwall was being used? 

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

then.” 

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

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

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

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

denied the motion for summary judgment. 

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

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

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

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No. 1-15-3649 

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

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

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

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

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

fiber types cause mesothelioma.” 

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

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

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

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

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

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

had established the danger of asbestos dust by 1964. 

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

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

the cells around the lungs. 

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

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

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

mesothelioma. 

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

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No. 1-15-3649 

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

the length and the width of the fiber? 

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

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

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

been proven to cause diffuse malignant mesothelioma? 

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

evidence is definitive.” 

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

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

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

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

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

increases as the level of exposure increases. 

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

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

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

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

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

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

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No. 1-15-3649 

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

most. 

¶ 15 The jury also heard questions about the packaging: 

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

A. Black. 

* * * 

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

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

seemed like.” 

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

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

light brown lettering on a black background. 

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

bore no warnings. 

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

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

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

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

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

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

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No. 1-15-3649 

¶ 19 The trial court said, “there’s only one witness, Walter,” to show that Ronnie used WelCote at the jobs in Illinois. The court said: 

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

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

Wel-Cote. 

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

about a gray color ***. 

* * * 

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

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

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

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

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

demonstrate gray looking bags. 

* * * 

*** [T]here’s very minimal product identification in this case. There is no 

testimony to support frequency of the [use of] defendant’s product. There’s no 

testimony to support repeated exposure to the defendant’s product. *** 

* * * 

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No. 1-15-3649 

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

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

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

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

¶ 21 ANALYSIS 

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

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

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

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

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

2d 343, 353-54 (1992). 

¶ 23 Frequency, Regularity, and Proximity 

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

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

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

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

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

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

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

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

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No. 1-15-3649 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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No. 1-15-3649 

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

the other.” 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In this record, there is no evidence concerning the percentage of GeorgiaPacific joint compound used in comparison to the quantity of other products used 

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

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

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

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No. 1-15-3649 

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

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

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

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

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

Other courts that have considered similar factual scenarios have reached the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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No. 1-15-3649 

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

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

The court found that the plaintiffs had failed to meet the frequency-regularityproximity test ***.” Stephens, 239 S.W.3d at 318-19. 

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

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

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

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

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

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

cited therein. 

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

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

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

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

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

Pacific products on numerous occasions and in several locations over an 

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

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

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

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

13 
No. 1-15-3649 

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

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

* * * 

Holcomb presented evidence that he used Kelly-Moore’s Paco jointcompound brand, including Paco Quik-Set, in Florida and Las Vegas. *** 

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

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

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

may amount to regular and proximate exposure over an extended period 

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

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

Holcomb’s cancer. 

*** 

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

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

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

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

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

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

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

*** 

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No. 1-15-3649 

Holcomb testified that he used Georgia Pacific brand joint-compound 

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

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

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

remembered using Georgia Pacific products when working at the motel. 

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

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

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

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

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

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

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

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

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

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

used was manufactured by defendant). 

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

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

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

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

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

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No. 1-15-3649 

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

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

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

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

980 F.2d at 419. 

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

evidence: 

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

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

and regularity prongs become less cumbersome when dealing with cases 

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

exposures to asbestos fibers. *** 

*** 

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

proximity test is irrelevant when determining whether the plaintiff has proved 

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

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

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

products. 

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

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

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No. 1-15-3649 

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

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

reason for this diminished importance is that mesothelioma can result from 

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

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

Tragarz. 

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

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

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

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

in the deposition shown at trial, he said only he “imagine[d]” they used Bestwall and WelCote more. Because the estate’s experts testified that relatively low levels of exposure 

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

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

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

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

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

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

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

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

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

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

¶ 36 Other Bases for Affirming the Judgment 

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

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

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

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

¶ 38 Choice of Law 

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

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

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

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

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

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

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

the court should consider: 

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

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

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

business of the parties, and 

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

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No. 1-15-3649 

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

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

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

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

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

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

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

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

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

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

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

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

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

correctly applied Illinois law to the litigation. 

¶ 42 Duty to Warn 

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

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

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

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

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

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

19 
 

 

 

 

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

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

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

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

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

inhaling asbestos dust. 

¶ 44 Danger of Chrysotile 

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

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

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

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

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

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

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

definitive.” 

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

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

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

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

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

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

20 
 

 

 

 

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

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

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

plaintiffs cannot recover without definitive experimental proof of the causal relationship 

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

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

directed verdict. 

¶ 47 CONCLUSION 

¶ 48 Walter’s testimony that he and Ronnie used Wel-Cote on jobs in Illinois was sufficient to 

create an issue of material fact as to whether exposure to Wel-Cote in Illinois constituted a 

substantial factor in causing Ronnie to contract mesothelioma. The trial court correctly 

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

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

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

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

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

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

¶ 49 Reversed and remanded. 

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