## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Zickuhr v. Ericsson , Inc. , 2011 IL App (1st) 103430

Appellate Court Caption AMY Z I CKUHR, Individually and as Special Administrator of the Estate of Richard C am pbell, Dec ease d, and FL ORENCE CAMPBEL L
, Plaintiffs-Appellee s, v. ERI CSS ON, I NC., Defe ndant-Appe llant.

District & N o. First District, Six th Division Docke t No. 1-10-3430

Filed September 30, 2011

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising from the death of plai n t iff’s dece dent from mesothelioma alleg edly cause d by his exposure to defe ndant’s asbestoscontaining elec trical cable s, the appellate court aff irmed the d en i al of defe ndant’s motion for judgme nt n.o.v. or a new trial and held that OSHA
regulations wer e proper ly excluded, that the trial court cure d any err or resulting from improper statements made during closing ar guments by plaintiffs’ counsel, and that plaintiffs’ failure to disclose that one of their witnesses woul d testify that plaintiff’s exposure to the asbestos contributed to his disease did not violate Supre me Court Rule 213.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 08-L -005433; the Hon. Richard E lrod, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Mark I

. Tivin and J eff rey S. Hood, both of O’Conne ll, Tivin, Miller & Bur ns, L L C, of Chicag o, and H. L ane Young
, Ollie M. Har t o n , and Hawkins Parnell, all of Thac kston & Young L L P, of Atlanta, Geor g ia, for appellant.

Wil liam Connelly and Nicholas J

. Vog elzang
, both of Conn el ly & Vog elzang L L C, and Konstantine Sparag is and Ba bak Ba khtiari, both of L aw Offic es of Konstantine Sparag is, PC, both of Chicag o, for appellee s.

Panel PRES I DI NG J USTI CE R. GORDON d e li v e r e d th e ju d g ment of the court, with opinion.
J ustices Gar cia a

nd L ampkin concur

red in the judg ment and opinion.

OP INION

¶ 1 Following a jury trial, the jury awa rded Richard Campbel l ’s es t at e $ 1

. 5 m i l l i on in damag es as a result of defe ndant Ericsson, Inc.’s neg lige nce in causing R i ch ar d ’s mesothelioma death from exposure to d efendant’s asbestos-c ontaining elec trical cable s. Ericsson later filed a posttrial motion for judgme nt notwithstanding the verdic t or, alternatively , for a

new tria l, which was de nied. ¶ 2 On appea l, defe ndant contends the trial co u rt erre d i n d en y i n g its posttrial motion beca use: (1) the evidenc e established t h at t h e cable the dece dent worke d with lacke d asbestos; (2) plaintiffs failed to establish that t h e ca ble was the cause of the dece dent’s mesothelioma; (3) the trial court’s exclusion of the Occ upational Safety and Hea lth Administration regulations prejudice d defe ndant; (4) plaintiffs’ improper statements during closing arguments wer e prejudicia l and deprive d defe ndant of a fair trial; and (5) the trial
court abused its discretion by all o wi n g p laintiffs’ controlled expert Dr. Steven Dikman to testify that defe ndant’s cable s wer e a contributing cause of the dece dent’s mesothelioma. We aff irm.

¶ 3 BA CKGROUND ¶ 4 Plaintiffs Richard Campbell (the dece dent) and his wife Flore nce Campbell broug ht this
neg lige nce action aga inst d efe ndant on a claim that the decedent developed mesothelioma from exposure to asbestos-c ontaining elec trical cable manufa cture d by defe ndant. The dece dent was diag nosed with mesothelioma in Marc h 2008 and subsequently died from the illness on Fe bruar

y 1, 2009. Plaintiffs’ complaint was amende d in Fe bruar y 2009 to include
wrong ful death and survivor c ounts. ¶ 5 Fr om 1955 to 1985, the decedent wo rk ed at U.S

. Steel’s S outh Works plant, wher e he

-2-drove a boom truck for the elec tric shop and perf ormed maintenanc e functions. The position require d the dece dent to repa ir industrial wire, repla ce burnt cable s, pull cable in and out of pipe conduit and take scra p cable to the salvag e yard. Such duties involved the c utting and stripping of elec trical wires and cable s. The dece dent claimed that his work pro duced asbestos dust that he disposed of usinga coa l shovel at the end of eac h workda

y

. ¶ 6 The wire and cable used at South Works plant wer e orig inally manufa cture d and sold by Anac onda Wire and Cable Company (Ana conda)

. In 1974, Anac onda acquir ed Continental Wire and Cable (Continental) and in ap proxi mately 1980, Ericsson acquir ed Anac onda. Plaintiffs al l eg e the wire and cable Anac onda sold to South Works contained asbestos. Plaintiffs further a ll e g e th a t a s An a c o n d a’s succe ssor-in-intere st, the defe ndant was neg lige nt in failingto adequately

war n of the da

ng ers of asbestos exposure whe n using its produc ts. ¶ 7 Plaintiffs orig inally broug ht action ag ainst sever al additional defe ndants for selling other asbestos-c ontaining products to South Works with o u t p roper war ning of asbestos dang er. The other defe ndants settled, leaving Ericsson as the only rema ining defe ndant at trial. After the jury verdic t, the trial court enter ed judgme nt on t h e v er d i ct but reduc ed the awa rd to $560,000 to g ive the defe ndant cre dit for setoffs due to the prior settlements. Plaintiffs’ case

was consolidated with the case of Scott v. Ericsson, Inc., No. 08 L 13715, and the jury found in favor of Ericsson and ag ainst the Scott estate. The Scott estate did not appea l that decision. Ray mond Scott was a union elec trician who develope d mesothelioma afte r working at U.S. Steel from 1970 until its close. 1

¶ 8 The Tr ial ¶ 9 Dec edent’ s Testimony ¶ 10 Prior to his death, t h e d ec ed en t t es t i fied in a videotaped deposition to workingwith Anac onda’s electric al wire at U. S

. Steel, which contained asbestos. He reca lled observing Anac onda cab l e in the 1950s and 1960s that designated “Ana conda” printed on its cable jacke ts and on t h e ca b l e. The dece dent testified that he knew the Anac onda cable was insulated with asbestos beca use the word “asbe stos” was printed on its cable ree ls also. The dece dent did not rec all workingwith any product labe led “Continental.” ¶ 11 The dece dent testified that he worke d with Anac onda wire and cable containing asbestos from 1955 to 1984 at U.S. Steel. He was diag nosed with mesothelioma in Marc h 2008. The dece dent testified that he stripped cable ever y day and would take the scra p cable out to the salvag e y ard and use shredde rs to strip the cable

. He testified to stripping miles of cable

. He would first shave off the insulation that cover ed the wires in the cable to save the copper core for salvag e. His cable stripping work took place in a s h an t y wher e the shredding machine

was located. During the shredding proce ss, the shanty beca me so dusty that he “couldn’ t breathe.” The dust from the cable shredding would cover him from head to toe, and the dust attache d onto his clothes and h ai r. In addition, the dece dent testified that as part of his maintenanc e duties he would repa ir old industrial wire, which involved stripping the wire

T he r eco rd doe s no t r ef

le ct th e yearth at U.S. St eel cl ose d. 1

-3-and installing lug nuts and clea ning the end of the cable with a knife when the cable burned
up, and ag ain removing the insulation. The dece dent testified that cable s used for elec trical
power in the plant fre quently burned up and had to be repla ced. These proce sses also cre ated du s t as well. When dece dent pulled the wires and cable throug h conduit, dust was al s o

cre ated beca

use debris would acc umulate in the conduit and cre ated dust when the cable was pulled. The dece dent reme mbere d seeing ree ls of Anac onda asbestos wire at U.S. Steel in the 1960s, but could not definitively rec all seeing it there in the 1970s
, but he did pull out old cable and wire on a continuous basis up until 1984. He knew the Anac onda wire was asbestos-insulated be cause he obser ved the wor d “asbe stos” on the re els.

¶ 12 Raymond Sc ott’s Testimony ¶ 13 R aym o n d S co t t testified via videotaped dispositi on on behalf of plaintiffs that whi l e working at U.S. Stee l be g inning in the 1970s, he observe d cable spools that r ead “ asbestos Contine n t al C able Company .” Scott testified that by stripping these cable s, dust was produce d and the workmen who stripped t hese cables were exposed to this dust on a daily basis for year s. Scott also contrac ted mesothelioma and die d prior to trial.

¶ 14 Erich Kothe’s Testimony ¶ 15 Erich Kothe, an eng ineer employ ed by Ana co n d a fr o m 1 9 51 to 1986, testified in a videotaped evidenc e dep o s i t i o n on behalf of plaintiff as a corpor ate repr esentative of defe ndant. Kothe h el p ed develop Anac onda’s wire and cable products. He testified that C o n t i nental manufa cture d asbestos-c ontaining wire from 1946 to 1984. He testified that chry sotile was the ty

pe of a sbestos Continental used. ¶ 16 Kothe noted that although Anaconda acquir ed Continental in 1974, Anac onda stopped producing asbestos-c ontaining cable in 1946, except b y specia l order and that was usually varnish cambr ic cable
, which was produce d into the 1950s. Kothe testified that not only was wire with asbestos a health hazard, it was an unsuitable materia l in wiring cable and he does not know why it wa s even used. He testified the word “asbe stos” was ne ver pr inted on any Anac onda or Conti nental cable ree ls. He further testified that while he was employed at Anac onda, the company did not have the technolog y to print the name “Ana conda” direc tly
on any cable jacke ts, the cable , or on the re els that containe d asbestos. ¶ 17 Kothe testified that in the 1970s he vis i t ed t h e fa ct o ry in Mexi co wher e Continental added asbestos to its wire. He observe d that Continental was coating wire with asbestos and did so from 1970 to 1984. Kothe t es t ified that the Continental personne l would wea r respirators around the asbestos beca use of the asbestos dust in the atmosphere

. The Mexi can fac tory also had a ventilation sy stem to keep the dust from penetr ating the rest of the fac tory “for the health of the employees.” The personne l that handled the asbestos wore space suits, in which their heads wer e totally enclose d with air pumped into their suits in order to avoid
any exposure to the asbestos dust. ¶ 18 Ko t h e t es t i fi ed that the first test defe ndant conducte d conce rning asbestos’s da ng ers

o ccur red in the 1990s as a result of an asbestos lawsuit ag ainst Ericsson. At that tim e, t h e tests wer e perf

o rm ed o n Anac onda wire, but it has never been perf ormed on Continental

-4-wire. Def endant’ s lawyers had the test perf ormed. They found some asbestos fibers wer e rele ased into t h e ai r when wire from a ree l labeled “Ana conda” was stripped. Howeve r, Kothe testi fied that when Anaconda sold varnish cam b ri c ca ble t hat contained asbestos, i t did not believe the product was hazardous beca use it contained saturate d asbestos as opposed
t o ra w asbestos. Kothe testified that defe ndant knew its customers would cut and strip i t s wires, but he said those ac t i o n s re l ease d such small amounts of asbestos that it would not

cause disease. Kothe conce ded that Anac onda’s own corpor ate literature stated “Ana conda Continental.” T hese brochur es ref ere nced asbestos-c ontaining wire and wer e offe red and

rec eived in evidenc e and published to the jury

. Kothe confirme d that when wi re i s p ulled throug h conduit, the ca sing c an bec ome damag ed.

¶ 19 Dr. Steve n Dikman’ s Testimony ¶ 20 Dr. Steven Dikman, a patholog ist, was plaintiffs’ controlled expert prac ticing pathology
at Mount Sinai Hospital in New York City since 1969. Dr. Dikman testified that Mount Sinai Hospital conducts a sig nificant amount of clinical and experimental rese arc h investigating

as b est os eff

ects. Dr. Dikman testified that exposure to any ty pe of asbestos can ca u s e mesothelioma. ¶ 21 Dr. Dikman was asked a hy pothetical question to establish the ca usation of decede nt’s mesothelioma. Ericsson objecte d based on I llinois Supreme Court Rule 213 (ef f. J an. 1, 2007) g rounds. The trial court overr uled the objection and Dr. Dikman opined that plaintiff’s
occupational expo s u re to signific ant asbestos dust would be a contributing fac tor to mesothelioma. Dr. Dikman testified that exposure to asbestos “may be prese nt for 50 y ear s [i n the pleura

or lungare a] after

exposure.”

¶ 22 Dr. Arnold Brody’s Testimony ¶ 23 Dr. Arnold Br ody is curr ently a profe ssor of molecular and biomedical scienc es at North Carolina State Univer sity with a master’ s deg ree in anatomy and a doctora

te degree in cell biology who previo u sly participated in the university ’s tox icolog y curr iculum. Dr. Br ody testified as a controlled expert for plaintiffs. Dr. Br ody opined that all ty pes of asbestos can

cause all of the asbestos-r elated diseases including mesothelioma, that it is the asbestos that

esca pes the produc t and is inha led that cause s the disease. D r. B rody opined that, base d on his rese arc h, chry sotile asbestos alone cause s mesothelioma. Dr. Br ody testif i ed “we find chry sotile asbesto s i n t he lungs of people deca des afte r they ’ve died.” But, he noted the asbestos conce ntration in ambient air is small enoug h to breathe without risking disease. Dr. Br ody also testified that he possessed no knowledg e on the specific mecha nics of wire products.

¶ 24 Regis Lageman’s Testimony ¶ 25 Reg is L ag eman testi fi ed o n b eh al f o f p l ai n t i ff as an adver se witness and also as defe ndant’s corpor ate repr esentative m ost knowledg eable on what defe ndant knew

conce rning asbestos’s health risks. L ag eman holds a bache lor of scienc e deg ree in elec trical

-5-eng ineer ing from J ohns Hopkins University and worke d closely with defe ndant’s cable and

wir e a s h e tra

n s itio ned throug h the positions of specific ations eng ineer
, product eng ineer
, and senior proce ss eng ineer at Continental from 1967 to 1977. L ag eman t estified that the defe ndant is the entity responsible fo r al l prior Anac onda and Continental products. He verifie d Continental produce d some asbestos-c ontaining wire until 1984. He testified that asbestos-c ontaining wires wer e labeled “asbe stos; varnish Cambric asbestos-insulated wire”

on the spools. But, L ag eman testified that t h e wi res had no war ning labels, beca

use the
company believed no dang erous fibers wer e rele ased when cutting or stripping the wire. He testified that the d e f

e n d a nt waited until the 1990s to test its asbestos-c ontaining wire, beca use the defe ndant had no evidenc e fibers wer e being rele ased prior to the 1990s asbestos lawsuit
ag ainst Ericsson. ¶ 26 L ag eman testified that U.S. Steel was a “big customer” of defe ndant’s soaking pit wire, which was partially composed of asbestos. L ag eman testified that the m ajority of asbestos used was chry sotile asbestos and used for soaking pits in steel mills

. Eac h spool of soaking pit wire would contain nearly a mile’s leng th of wire. L ag eman acknow ledg ed that the wire and cab l e t h at the dece dent descr ibed that he stripped would have contained asbestos, but based on the same description, it was not w ire that was sold by defe ndant. He testified that the defe ndant d i d n o t prese ntly have rec ords indicating wher e defe ndant had sent its asbestos-c ontaining w ire a nd cable

.

¶ 27 OSHA Regulations ¶ 28 The defe ndant attempted to introduce into evidenc e t h e as b es t o s regulations of the Occ upational Safety an d Hea lth Administration (OSHA), claiming OSHA regulations sho we d t h e asbestos-containing wire did not require a war ning label beca

use the fiber it fore seea bly re lease d fell within the permissible exposure limit

. Plaintiffs objected and the trial court excluded this evidenc e, citing that OSHA regulation s ap p ly only to employeremploy ee rela

tionships, and since the dece dent was not defen d ant’s employ ee, OSHA
regulations were irrele vant.

¶ 29 Closing Arguments ¶ 30 Duringclosingarguments, plaintiffs asked the jury to awa rd damag es within the ra

ng e of $ 7 to $14 milli on. Plaintiffs then said, “It’s a total win for this corpor ation if y ou don’t

come back with a substantial ver d i ct

. I t ’s an absolute win.” Def endant objected. After sustaining the objection, the trial judge admonished the jury by saying, “What is a win or a loss Ithink is i rre levant. What is releva nt is if y ou find that the defe ndant is liable then the plaintiffs are entitled to be fairly [compensated] for their losses. Who wins or loses is not the issue here .”

¶ 31 ANALYSI S ¶ 32 On appea l, de fenda nt c ontends that the trial court err ed in de nying its posttrial motions fo r judgme nt notwithstanding the verdic t or, alternatively
, for a new trial beca use (1) t h e

-6-evidenc e established that the cable and wire the dece dent worke d with lacke d asbestos; (2)

plaintiff failed to est ablish that defe ndant’s cable and wire was the cause of dece dent’s mesothelioma; (3) defe ndant was prejudice d by the exclusion of OSHA re gu l ations; (4) defe ndant was prejudice d and deprive d of a fair trial by plaintiff’s improper statements during closing arguments; and (5) the trial court err ed by allowing plaintiff’s controll ed expert, Dr. Steven Dikman, to testify that defe ndant’s cable and wire was a contributing

cause of the dece dent’s mesothelioma when that testimony was not disclosed under I llinois Supreme Court Rule 213.

¶ 33 J udg ment Nothwithstanding the Ver dict ¶ 34 Th e d ef

en d an t fi rs t ar gu es t h at the trial court’s judgme nt must be reve rsed and a judgme nt should be enter ed in favor of defe ndant notwithstanding the jury verdic t, claiming (1) that there was no ev i d ence t hat defendant’s cable and wire contained asbestos; and (2) that there was no evidenc e that the cable and wire caus ed m es othelioma and dece dent’s death. ¶ 35 J udg ments notwithstanding the verdic t are proper o n l y wh er e all the evidenc e viewe d
most favor ably to the oppone nt s o o v e rwhe lmingly favor s the movant that no contra ry verdic t could eve r stand. Maple v . Gustafson
, 151 I ll. 2d 445, 453 (1992). I t is the province of the jury to resolve conflicts in the evidenc e, to pass upon the cre dibilit y of the witnesses and to decide what weight should be g iven to the witnesses’ te stimony

. Maple , 151 I ll. 2d at 452. On revie w of a trial court’s decision to deny a motion for a judgme nt notwithstanding the verdic t, all of the evidenc e must be revie wed in a light most favor able to the opponent of the motion. Thacke r v. UNR Industries, Inc.
, 151 I ll. 2d 343, 353-54 (1992). A court does not weig h the evidence, nor

is it concerne d with the credibility of t he witnesses; rathe r, i t may only consider the evidenc e and a ny infere nces the ref

rom, in the light most favor able to the party resisting the motion. Mizowek v. De Franco
, 64 I ll. 2d 303, 309-10 (1976). A judgme nt notwithstanding the verdic t is not appropr iate if “re asonable minds might dif fe r as to the infere nces or conclusions to be drawn from the fac ts prese nted.” Pasquale v. Speed Products Engineering , 166 I ll. 2d 337, 351 (1995). ¶ 36 In a cause of action for neg lige nce or strict product liability arising from alleg ed exposure
to a sbestos, a plaintiff must prove that the defe ndant’s asbestos was the cause in f act of the injury

. Thacker
, 151 I ll. 2d at 3 5 4. To prove causation in fac t, the plaintiff must prove medical causation, i.e.
, that exposure to asbestos cause d the injury
, and that it was the defe ndant’s asbestos-c ontaining product which cause d the injury

. Thacker
, 151 I ll. 2d at 354. ¶ 37 To meet t h i s b u rd en , a plaintiff must show that the injured party was exposed to the defe ndant’s asbestos throug h proof t h at “he regularly worke d in an are a wher e the defe ndant’s asbestos was fre quently used” and the injured party worke d in sufficie nt proxi mity to this are a so as to come into contac t with the defe ndant’s product. Thacker
, 151 I ll. 2d at 359. T h i s t es t is often ref err ed to as the “fr equenc y , regularity and proxi mity ” or “substantial-fa ctor” test. ¶ 38 This was a highly contested case and the jury verdic t was based on who the jury believed

was telling the truth. In the case at bar, the dece dent testified that he worke d with asbestos-

-7-containing Anac onda wire from 1955 to 1984 at U.S. Steel. He drove a boom tr uck for the elec tric shop and perf

ormed maintenanc e functions which included repa iring industrial wire, repla cing burnt cable s, pulling wire cable in a nd out of pipe conduit and transporting scra p cable to the salvag e y ard. The dece dent’s duties involved t h e cu t ting and stripping of elec trical wires and cable s. The de cede nt testified that the cutting and stripping of the wire and cable produce d asbestos dust that he disposed of using a coal shovel at the end of eac h work da y

. ¶ 39 The wire an d cab l e u s ed at U. S

. S t ee l we re orig inally manufa cture d and sold by Anac onda, which stopped producing cable containing asbestos in the 1950s. Anac onda acquir ed Continental in 1974 and Continental manufa cture d cable containing asbestos from 1946 to 1984. Defe ndant ac quired Ana conda in 1980. ¶ 40 Erich Kothe, an eng ineer employ ed by Anac onda from 1951 to 1986, testified on behalf of plaintiff, as defe ndant’s corpor ate repr esenta tive, in a videotape deposition. Kothe helped develop Anac onda’s wire and cable products. Kothe testified t h at the first test defe ndant conducte d conce rning asbest o s dang ers occur red in the 1990s as a result of an asbestos lawsuit filed ag ainst the defendant. Def endant’ s lawyers had the test perf ormed. The test result sho we d that some asbestos fibers wer e rele ased into the air when wire from a ree l labe l ed “Ana conda” was stripped. Howeve r, Kothe testified that when Anac onda sold varnish cambr ic cable that contained asbestos, it did not believe the product was hazardous beca use it c ontained saturate d asbestos as opposed to r aw asbestos. Kothe testified that the defe ndant knew its customers would cut and strip its wires, but that those actions release d such small amounts of asbestos that it would not cause d i s ea s e. The defe ndant never contemplated that someone would use a shredding machine. Ko t h e conce ded that Anac onda’s own corpor ate literature stated “Ana conda Continental.” These brochur es ref ere nced asbe s to s

- c o ntain in g w ir e and wer e offe red and rec eived in evidenc e and published to the jury

. ¶ 41 Reg is L ag eman, defe ndant’s other corpor ate repr es en t at i v e, testified on behalf of the plaintiff as an adver se witness that Continental made asbestos-c ontaining wire in the 1970s

an d s h i p p ed it to steel mills

. He testified that the defe ndant “comb[ed] the felted asbestos
onto the wire” from 1967 to 1984. The defe ndant purcha sed 4 to 5 tons of asbestos annually starting in 1967, which was g radua lly reduc ed to zero by 1984. The ty pe of asbestos used was 80% to 95% long- fiber chry sotile asbestos, which was better for wire cre ation

. L ag eman acknow ledg ed that Continental’s cata logue s listed U.S. Steel as a customer and claimed that “U.S. Steel was a big customer for soaking pit cable ,” and that “par t of the insulation sy stem and par t of t he jacket i s asbestos.” Soaking pit cable
, which contained s ome asbestos, was sold to U.S. Steel until 1984. He testified the compan y ’s as b est os-coated wire would be labeled “ asbestos; varnish c ambric a sbestos-insulated wire ” on the spools. ¶ 42 Fur

ther, L ag ema n t es t i fi ed t h at t h e wi res contained no war ning labels beca

use the defe ndant believed that no dang erous fibers wer e rele ased when the wire was cut or stripped. He testified that the defe ndant waited until the 1990s to test its wires that contained asbestos beca use it ha d no evidenc e that fibe rs wer e being rele ased until it was made a defe ndant in a lawsuit.

-8-¶ 43 The defe ndant, in its brief to this court, indicate that there was no evidenc e that the wire

and cable shredde d by the dece dent and Scott contained asbestos and was sold to U.S. Steel by defe ndant. It based its arg ument on the followingtestimony of L ag eman: “Q. Mr. L ag eman, did you rea d Mr. Campbell and Mr. Scott’s de positions? A. Yes, I have. Q. And did y ou see their descr iption of the cable s that they worke d with that they believed conta i ned asbestos that would have been manufa cture d by Anac onda or Anac onda Continental? A. Yes, I did reviewthat in detail. Q. Did they descr ibe any Anac onda Continental wires or cable s that would have

ever had asbe stos in their covering s?
A. Ba sed on the descr iptions that they g ave in the depositions, there was no wire

or cable t h at we ’ve ever manufa cture d that I could have fit into that specific ation. There was a g ener al indication of the wire but not h i n g s p ecific enoug h for me to

narr ow down as to ty

pe. Q. Did Continental or Anac onda C o n t i nental ever sell a cable that just had the name ‘ Anac onda’ on the cable or the re el?
A. You’r e talkingabout the Ana conda Continental e ntity ? Q. Yes. A. That just had Ana conda on it, no. The ree ls were not printed. Q. So if Mr. Campbell identified an Anac onda-only cable
, would that have been something that was manufa cture d by Continental or Anac onda Continental?

***
A. He indicated in his deposition that there was the word ‘Ana conda ’ an d sometimes the word ‘asbe stos’ on a ree l. At the Continental wire fac ility that beca me Anac onda which beca

me Anac onda Ericsson, we did not surfa ce p rint or paint a name on the r eel be cause the re els wer e potentially reusa ble. Q. And did Anaconda

Continental ever se ll any cable that just said ‘Ana conda’ on the re el?
A. No. That would have been incorre ct. We wer e part of Anac onda, but we wer e the Anac onda Continental Division. Q. And if Mr. S co t t i d en t i fied using Anaconda Cont inental cable i n the 1960s
, would that have be en possible?
A. No. Anac onda Continental didn’t exis t as a leg al entity until late 1973 or ‘74. Prior to that, we we re a ctual compe titors. Q. You mentioned this a second ag o, but did Anac onda Continental ever print the word ‘a sbestos’ on its reels? A. No. That wouldn’t make sense . The re els wer e re turnable a nd–

***

-9-Q. I f Mr. Scott or Mr. Campbell saw the word ‘asbe stos’ on a wire and cable ree l, would that have be en an Anaconda Continental reel?
A. We never

printed the wor d ‘asbe stos’ on any cable

.
*** Q. How a bout on the ree ls?
A. The w ord ‘a sbestos’ neve r appe are d on the re els. Q. Was Anac onda Continental able to print on the cover ing of a wire or cable that contained a sbestos?
A. The shor

t answer is no. Q. All rig ht, sir. I f Mr. Scott or M r. C am p b el l saw printing on a cable manufa cture d b y An ac o nda Continental, would the cover ing of that cable have contained a sbestos?
A. No. At the time we’ re talking about manufa cturing fr o m ’77 to ’84, the asbestos cable was essentially braide d so it was an uneven cover ing, and we wer en’t able to print on uneve n cover ings. Q. Could y ou print on the smooth rubber or Neopr ene c overing s of the ca bles?
A. Yes. Any jacke t that was smooth like rubber
, Neopr ene, PVC, we could print on with a print whee l. Q. Did Anac onda Continental rubber or Neopr ene, did it ever contain asbestos? A. No, the c ompounds for the jac ket did not.” Yet, L ag eman acknow ledg ed t h at t h e cable and wire the dece dent described contained asbestos. ¶ 44 Ray

mond Scott, an e l ec t ri ci an whose work duties involved handling wire and cable at U.S. Steel, beg inning in the 1970s, essentially corr oborate d the dece dent’s testimony

. Scott observe d cable spools that rea d, “Asbe stos Continental Cable Company .” Scott testified that by stripping these cable s dust was produce d and that the worke rs who stripped these cable s

wer e exposed to this duston a daily basis for year s. ¶ 45 In viewing the evidenc e, defe ndant’s argument that there was no evidenc e that any of the defe ndant’s products used at U.S. Steel contained asbestos is with o u t m er i t

. Kothe, a corpor ate repr esentative of defe ndant and the eng ineer primarily employ ed by Anac onda, a company the defe ndant purcha sed, verifie d the p re s en ce of asbestos on wire and cable
, produce d by Anac onda and la te r Co ntinental, used at U.S. Steel. Reg is L ag eman, defe ndant’s
corpor ate repr esentative, testified that Contin en t al
, a company acquir ed by defe ndant, manufa cture d wire and cable with asbestos. Def endant purcha sed 4 to 5 tons of as bestos annually starting in 1967, which was g radua lly reduc ed to zero by 1984 and defen d an t “comb[ed] the felted asbestos onto the wire” from 1967 to 1984. L ag eman opined that from the testimony of the dece dent and Scott, “ther e was no wire or ca b l e that we’ ve ever manufa cture d that Icould have fit into that specification.” ¶ 46 As a result, there was evidenc e that defe ndant’s cable and wire contained asbestos during 1970 to 1984. Th e d ec ed ent and/or Scott descr ibed either Anac onda wire or Anac onda-

-10-Continental wire with the word “asbe stos” on its ree ls. The dece dent testified it was even on

the cable and its jacke t

. L age man and Kothe testified that defe ndant never place the word “asbe stos” o n its cable
, jacke ts, or ree ls. The jury hear d the evidenc e and passed upon the

cre dibilit y of the witnesses and believed the plaintiff’s witnesses over L ag eman and Kothe. The de fenda

nt produce d no rec ords to substantiate its claim that the wire and cable sold to U.S. Steel during dece dent’s tenure did not contain asbestos. But, most i m p o rt an tly
, the dece dent’s testimony illust rate d that he was constantly repla cing wire and cable at the plant. A rea sonable jury could have found from the evidenc e that some of that wire probably was deca des old in orig in and manufa cture d by defe ndant’s companies with asbestos and that the dece dent was exposed to that proce ss for y ear s. The other issue for the jury was whether the asbestos in the wire and cable cause d the dece dent’s mesothelioma and subsequent death. On this iss ue the e vidence was a lso sufficient to support the jury ’s ver dict. ¶ 47 Def

endant claims that the p l ai n t i ff s co u l d n o t p ro v e causation beca use no witness testified as to the quantity of asbe stos fibers re lease d when the de cede nt stripped the wire s and cable s. Howeve r, defe ndant does not cite any authority which would require this ty pe of testimony
, and the exactitude of providing the quantity of asbestos fibers rele ased could be

an impossibi lity beca

use the exact amount of wire or cable stripped in a day probably varie d and the amount of asbestos rele ased into the atmosphere would als o v ar y

. In addition, the dece dent did his shredding in an enclose d shant y wh er e he testified he had difficulty in breathing and that the dust from t h e s h redding proce ss attache d to his clothing and hair. There did not appea

r to be much of an atmosphere for the dust to rele as e i n t o

. W h en a proponent of any argument fails to offe r supporting leg al authority or “any rea soned
argument,” the proponent of the argument waives c onsideration of the argument. Roiser v. Cascade Mountain, Inc

. , 367 I ll. App. 3d 559, 568 (2006). ¶ 48 I t appea

rs that defe ndant’s theory in t h i s ca s e i s that the quantity of asbestos fiber s rele ased from th e s t ri pped wires and cable produce s a small amount of asbestos dust that could not cause mesothelioma. However, though the defe ndant has no burden to prove any thing, there was no expert testimony prese nted that supported defe ndant’s position. I t was p laintiff’s burden to introduce sufficie nt evidenc e to establish that defe ndant cause d t h e mesothelioma. Nolan v. W eil-Mc Lain , 233 I ll. 2d 416, 434 (2009). ¶ 49 The “substantial fac tor” test used to establish causation require s the defe ndant’s conduct
to be responsi b l e fo r producing the plaintiff’s injury

. Thacker
, 151 I ll. 2d at 355. As we previously explained, to deter mine if asbestos exposure is a substantial f actor in c ausation, the “fr equenc y , regularity and proxi mity ” test may be used, which states that a plaintiff can show exposure to defe ndant’s asbestos by proving that: (1) plaintiff “re gularly worke d in an

are a wher e the defe ndant’s asbestos was fre quently used”; and (2) the injured plaintiff

wo rked “suff

iciently close to this are a so as to come into contac t with the defe ndant ’s product.” Thacker , 151 I ll. 2d at 359. ¶ 50 Be cause of the problems associate d with proving one’s prese nt condition was cause d by past exposure to a produc t, I llinois courts have not require d a findingof the e x act qua ntity of asbestos fibers a dece dent was exposed to. Thacker v. UNR Industries, Inc.
, 213 I ll. App. 3d 38, 40-41 (19 91) (citing W ehme ier v. UNR Industries
, Inc. 213 I ll. App. 3d 6 (1991))

. Instead, the plaintiffs in a sbestos case s must show “the fre quency of the use of

the product

-11-and the regularity or extent of the plaintiff’s em p l o y m ent in proxi mity there to.” (Interna l quotation marks omitted.) W ehme ier , 213 I ll. App. 3d at 29. ¶ 51 In the case at bar, the dece dent t estified that he worked wit h Anac onda wi re an d cable containing asbestos from 1955 to 1984 at U.S. Steel. He was diag nosed with mesothelioma in Marc h 2008. The de cede nt testified t hat he stripped cable every day and would take the

scra p cable out to the salvag e y ard and use shredde rs to strip the cable

. He would first shave off the insulation that cover ed the wires in the cable to save the copper core for salvag e. His cable stripping work took place in a shanty wher e the shredding machine was located. During the shredding proce ss, the shanty beca me so dusty that he “couldn’ t breathe.” The dust from the cable shredding would cover him from head to toe, and the dust attache d onto his clothes and hair . In addition, the dece dent testified that as part of his ma intenance duties he would
repa ir industrial wire, which involved stripping the wire and installing lug nuts and clea ning
t h e en d of the cable with a knife when the cable burned up, and ag ain removing the insulation. These proce sses also cre at ed dust as well. When dece dent pul led t he wires and cable throug h conduit, dust was also cre ated beca use debris would acc umulate in the conduit and created dus t when the cable was pull ed. I n addition, Kothe testi fied tha t in the pul ling
proce ss the casing s on the cable can be damag ed. Dr. Dikman’s testimony in a hy pothetical question, which included t h e ev i dence most favor able to the plaintiff, produce d sufficie nt evidenc e of causation. Dr. Dikman opined that the dece dent’s exposure to the asbestos wire and cable “would be a contributi n g fa ct o r, a cause .” Dr. Dikman also testified that the
exposure to asbestos can be found in the lung are a 50 y ear s afte r exposure. Dr. Br ody confirme d that evidenc e of asbestos exposure can be found in dead people deca des afte r their deaths. Asbestos exposure can take many y ear s befor e the disease is diag nosed. The disease and the c ause of

death he re a

re not disputed.

¶ 52 Motion for a Ne w Trial ¶ 53 Next, we must deter mine whether the trial court err ed in denying defe ndant’s motion for

a new trial. “I f the trial judge
, in the exercise of his discretion, finds that the verdic t is ag ainst the m anife st weig ht of t he evidence, he s ho u l d gra n t a new trial; on the ot her hand, wher e there is suffici en t ev i d ence to support the verdic t of the jury
, it constitutes an abuse of discretion for

the trial cour

t to gr ant a motion for a

new tria l.” Maple , 151 I ll. 2d at 456. A court’s ruling on a motion for a new trial will not be reve rsed except in those instances wher e it is affirmatively

shown that it clear ly

abused its discre tion. Maple , 151 I ll. 2d at 455. ¶ 54 In deter

mining whether the trial court abused its discre tion, the review ing c ourt should consi d er wh ether the jury ’s verdic t was supported by the evidenc e and whether the losing party was denied a fair trial. Maple
, 151 I ll. 2d at 455. A verdic t is contra ry to the manifest weig ht of t he eviden ce o n l y when the oppos ite conclusion i s clea rly evident or the verdict is unrea sonable, arbitrary
, and not based on the evidence. Bosco v. Janowitz
, 388 I ll. App. 3d 450 (2009). We have alre ady discussed that the jury v er d i ct was supported by the evidenc e and we cannot say that an opposite conclusion is clea rly evident or that the verdic t is unrea sonable, arbitra

ry , and not based on the evidenc e. There fore, we wi l l consider whether any of def endant’ s claims of er

ror e ntitles itto a new trial.

-12-¶ 55 In the case at bar, the trial court barr ed defe ndant from intr o du ci n g evidenc e that the

defe ndant was in compliance with OSHA regulations. The defe ndant indicated that it desired
to c all Dr. Victoria Arg ento, a profe ssional e ng ineer

. The trial court barr ed defe ndant from showing that it co m p l i ed wi th OSHA reg ulations finding such evidenc e applied only to employ er- employ ee relationships and was thus irrele vant and immaterial. The defe nse advised the trial court that it would prepa re a stipulation to be used as an offe r of proof, but

never prese nted the stipulation or an offe r of proof in any other form. Howeve r, while the jury was de liberating , the def endant f iled a mot ion in limine on the subject matter , and the trial court sustained pla intiff’s objection to its tim eliness. ¶ 56 Ray

mond Scott, the elec trician, corr oborate d dece dent’s testimony that by stripping the cable s, dust was produce d and that the wor kers who strippe d these c ables wer e exposed to the dust on a daily

basis. ¶ 57 Erich Kothe, the eng ineer employ ed by Anac onda, corr oborate d plaintif f’ s cl ai m t h at asbestos fibers wer e rele ased into the air when Anac onda wire was stripped. Reg is L ag eman, defe ndant’s corpor ate repr esentative, admitted that defe ndant is responsible for Anac onda’s and Continental’s wire that contained a sbestos. ¶ 58 Plaintiff’s reta ined expert, Dr. Steven Dikman, a patholog ist, testified in a hy pothetical question that since the de cede nt ha d worke d around asbestos materia ls f or many year s that

wer e manufa cture d by the defe ndant and had inhaled dust containing asbestos, defe ndant’s products would have been a contributingcause of his mesothelioma and de ath. ¶ 59 In addition, plaintiff’s sec ond reta ined ex pert, Dr . Arnold B rody , who holds a Ph.D. in cell biolog y

and is curr ently

a prof essor of molecular and biomedica l science s, opined that all ty pes of asbestos, including chry sotile asbestos, cause mesothelioma. Dr. Br ody reje cted defe ndant’s claim that people cannot breathe in chry sotile asbestos, t h e t y pe used in defe ndant’s produc ts, as “nonsense .” De fenda nt presente d no expert witnesses. ¶ 60 There was more than sufficie nt evidenc e for t h e j u ry t o fi n d t h at the dece dent was exposed to defe ndant’s cable an d wire containing asbestos and that the asbestos fumes he

was e x posed to was a

cause of his mesothelioma and de ath.

¶ 61 OSHA Regulations ¶ 62 On appea l, defe ndant claims that the trial court abused its discret i o n b y ex cl u d i n g

ev i d en ce of OSHA’s asbestos regulation and as a result Ericsson was prejudice d by its inability to use the regulation to show that any fiber re l ea s ed was within permissible exposure limit s. ¶ 63 When a motion in limine is g rante d or when an objection is sustained barr ing the use of intended evidenc e, “the key to saving for revie w an err or in the exclusion of evidenc e is an adequate offe r of proof in the trial court.” Snelson v. Kamm
, 204 I ll. 2d 1, 23 (2003). An offe r of proof informs the trial court, opposing counsel, and the revie wing court of the nature and substance of the evidenc e soug ht to be introduced

. K4 Enterprises, Inc. v. Grater, Inc.
, 394 I ll. App. 3d 307 (2009). ¶ 64 As an initial matter, si n ce d ef en d an t d i d n o t prese nt an offe r of proof or to what

-13-regulations it wanted to offe r, it waived the issue. Howeve r, it tells us in its brief what i t

intended to offe r and if that had been prese rved our decision would still be to aff irm the trial court on this issue. ¶ 65 The trial court has sound discretion when deter mining the admissibili ty of evidenc e, and its decision will not be overturne d on appea l absent a clea r abuse of di scre tion. Sobczak v

. Flaska , 302 I ll. App. 3d 916, 929 (1998). “A trial court a

buses its discretion only

when no

rea sonable person would ag ree with its decision.” Simich v. Edgewater Beach Apartments Corp
., 368 I ll. App. 3d 394, 411 (2006) (citing Dawdy v. Union Pacific R.R. Co.
, 207 I ll. 2d 167, 177 (2003))

. ¶ 66 De fe n d an t cl aims that OSHA’s asbestos regulation applies to manu fa ct u re rs an d there fore
, the trial court err ed in finding that it applies onl y t o t h e employ er- employ ee relationship. Howeve r, defe ndant cites no case law that identifies instances wher e the OSHA asbestos regulation was applied to a manufa cture r. Conversely
, the plaintiffs cite case s from 2

sever al other jurisdictions that held manufa cture rs, who are not employees, are not regulated under O SHA. See Merritt v. Bethleham Steel Corp. , 875 F.2d 603 ( 7th Cir. 1989); Jete r v. St. Regis Paper Co.
, 5 0 7 F.2d 973 (5th Cir. 1975); Johnson v. Koppers Co.
, 524 F. Supp. 1182 (N.D. Ohio 1981); Cochran v. International Harve ster Co.
, 408 F. Supp. 598 (W.D. Ky . 1975). ¶ 67 Moreove r, OSHA’s asbestos regulation under 29 C.F.R. § 1910.1001 (2009) ref ere nces only the duties that an employer ha s to his employ ee, not the duties of a manuf actur er. F or example, section 1910.1001(c) states that the “employer shall ensu re t h at no employ ee is
expose to an airborne concentr ation of asbestos in excess of 0.1 fiber per cubic centimeter of air.” 29 C.F.R. § 1910.1001(c)

. “Employ ers who are manufa cture rs” are discussed in the OSHA asbe stos regulation; however , section 1910.1001(j)(5) clar ifies that employ ers who

are manufa cture rs of a sbestos products must comply with O SHA’s hazard c ommunication standard at section 1910.1200(g ) as opposed to the OSHA asbestos regulation that Ericsson
soug ht to admit int o evidenc e. ¶ 68 Under 29 C.F.R. §§ 910.2(c) through (d) (2010), OSHA define s employ er a s “a person eng ag ed in a bus i ness aff ecting commerc e who has employ ees” and employ ee as “an employ ee of an employ er who is employ ed in a business of his employ er which aff ects

commerc e.” Since dece dent worke d for U.S. Steel, it would be considered t h e dece dent’s employ er, not defe ndant. There fore
, the OSHA asbestos regulations would speak only to the relationship between U.S. Steel and the dece dent. ¶ 69 Since the OS HA as b es t o s re gu l at i o n s do not apply to defe ndant, evidenc e of the
regulations is irrele vant, and there fore
, its exclu s i o n wa s p roper and not prejudicia l to the defe ndant. We cannot sa

y that no rea sonable pe rson would agree with the trial court.

T he cas es ci te d by def

end ant spe ak to m anu fa cture r negli gence genera ll y, but do not per ta in 2
to OSHA spe ci fi cal ly. Gel sumi no v. E.W

. Bli ss Co.
, 10 I ll

. App. 3d 604 (19 73) ; Mo ren v. Samue l L. Lang st on Co. , 96 I ll . App. 2d 1 33 ( 1969 ).

-14-¶ 70 Improper ClosingArg ument ¶ 71 On appea l, defe ndant claims t h at t h e t ri al court err ed in failing to g rant a new tria l, beca use plaintiffs improperly ref ere nced defe ndant’s corpor ate wea lth in closing arguments. Specifica lly , afte r plaintiffs aske d the jury to a war d damag es within the rang e of $7 to $14 milli on, plaintiffs sai d
, “It’ s a tot al win for this corpor ation if y ou don’t come back with a substantial verdict. It’s an absolute w in.” ¶ 72 Attorney s are aff orded wi d e l at i tude during closing argument and may comment and
argue on the e vidence and any infere nce that may

be fa irly drawn from that evide nce. ¶ 73 Improper comments by counsel constitute reve rsible err or only wher e the comments are

so prejudicia l as t o deprive the ot her p ar t y o f t he right t o a fair t rial. I ssues conce rning the prejudicia l eff

ect of comments made during closing argument are within the sound discretion of the trial court, and deter minations reg arding such issues will not be reve rsed absent a clea r abuse of discretion. ¶ 74 In deter

mining whether there has been an abuse of discretion we may not substitut e our judgme nt for that of the trial court, or even deter mine whether the trial court exercis ed its discretion wisely

. Chakos v. Illinois St a t e T o l l Highway Authority
, 169 I ll. App. 3d 1018, 1029 (1988). ¶ 75 Improper closing argum en t s re q u i re re v er s al only when the comments resulted in substantial prejudice to the opposing party

. Ramirez v. City of Chicago
, 318 I ll. App. 3d 18, 2 6 (2 0 0 0 ). Howeve r, g ener ally
, when an improper statement is made, if “the trial cour t sustains a timely objection and instructs the jury to disreg ard the i m p roper comment, the
court sufficie ntly cure s any prejudice .” W illaby v. Ben der

s ky
, 383 I ll. App. 3d 853, 862 (2008). ¶ 76 Acc ording ly
, the trial judge ’s timely response here to t h e p l ai n t iffs’ closingstatement eff ectively cure d any prejudicia l eff ect it may have g ener ated. Following defe ndant’s immediate objection, the trial judge sustained the objection and admonished t h e j u ry by
saying, “ What is a w in or a loss I think is irrele vant. What is rele vant is if y ou find that the defe ndant is liable then the plaintiffs are entitled to be fairly [compensated] for their losses.” In immediately instructing the jury to disreg ard plaintiffs’ improper statement, the trial court took the nece ssary steps to ensure defe ndant a fair trial. There fore
, the trial court was within its discretion to deny defe ndant’s motion for a new trial on the g round of an improper closing statement, bec ause a

ny prejudicia l effe ct from the imprope r statement wa s cure d.

¶ 77 I llinois Supreme Court Rule 213 Disclosure ¶ 78 On appea l, defe ndant claims that the trial court err ed by failing to exclude Dr. Dikman’ s testimony when his Rule 213 disclosure did not indicate he woul d t es t ify that plaintiff’s exposure to the asbestos in Ericsson’s w ires and c ables was a cause that c ontributed to the dece dent’s mesothelioma. Def endant claimed Dr. Dikman’s Rule 213 written disclosure did
not g ive adequate notice of his testimony beca use it did not contain any mention or show any understandingof wire and ca ble. ¶ 79 The admission of evidenc e pursuant to Rule 213 is within the sound discretion of the trial

-15-court and the court’s ruling will not be dis turbed absent an abuse of di scre tion. Sullivan v.

Edward Hospital
, 209 I ll. 2d 100, 109 (2004). Rule 213 disclosure requirem en t s ar e mandatory

and subjec t to strict compliance by the par ties. Sullivan , 209 I ll. 2d at 109. ¶ 80 Ho we v er , t h e failure to comply with Rule 213 does not automatically requ i re t h e exclusion of the noncomplying party ’s witnesses or testimony

. Our supreme court has held that in deter

mining whether the exclusion of a witness or testimony is a proper sanction for nondisclosure, the court “must consider” the following fac tors: (1) the surprise to the adver se party ; (2) the prejudicia l eff ect of the testimony ; (3 ) t h e nature of the testimony ; (4) the diligenc e of t h e ad v er s e party ; (5) the timely objection to the testimony ; and (6) the g ood faith of the pa

rty callingthe witness. Sullivan , 209 I ll. 2d at 110. ¶ 81 First, we m u s t d et er m i n e whether there was a violation of Rule 213. Dr. Dikman’ s deposition was not taken by defe ndant in this case and defe ndant had the rig ht to take his deposition to deter

min e al l o f hi s opinions. Howeve r, pl aintiff filed a Rule 213(f) written 3 disclosure whic h stated in part:

“Dr

. Dikman is e x pecte d to testify by hy pothetical question as to c oncepts such as latenc y and injury

and ca usation.
* * *
Dr. Dikman is further expected to be able to testify conce rning the circ umstances

un der which exposure to asbestos may be associate d with mesothelioma, and will testify conce rning the results of his own ex p eriences, the medical and scientific lite ra t u re, and exis ting epidemiolog ic studies conce rning associations betwee n exposure to asbestos and the morta lity and/or incide nce of

some forms of c ance r. * * *
Dr. Dikman is a lso e x pecte d to testify as to the specific require ments nece ssary for an exposure to be considere d a ‘substantial contributing fac tor.’ Dr. Dikman will also testify as to hy

pothetical exposures based on the history of th e plaintiff’s
exposure to asbestos and the potential of those exposures to cause [m esothelioma. The hy pothetical questions will be based upon the product identification deposition and evidentiar

y deposition of plaintiff, as well as answe rs to interrog atories of defe ndants for a sbestos-containingproducts.” ¶ 82 De fe ndant claimed a Rule 213 violation afte r Dr. Dikman was ask ed t h e fo l l o wi n g question: “Q. Doc tor, I want to a sk y ou this question. Dr. Dikman, the Jury has hea rd the testimony of Mr. Richard Campbell. I want y ou to assume that Mr. Campbell worke d with industrial-size Anac onda and Cont i n en t al asbestos-c ontaining wire and cable starting in 1974 and g oing throug h into 1984 while at U.S. Steel. I want y ou to further assume that Mr. Campbell and others in close proxi mity to him perf ormed the following activities, cut this wire and cable
, skimmed this wire and cable t o make

connec tions, and fed this wire and cable throug h a stripping machine which cre ated

Dr. Di km an’ s de pos it ion was ta ken in the Sco tt ca se. 3

-16-visible dust which was swept up. [He] and oth er s in close proxi mity to him perf ormed all of these activities on a regular and continuous and fre quent basis. Dr. Di k man, I want you to further assume that based on Ericsson corpor ation’s swo rn in ter r o g a to r y a n s w e r s , corpor ate repr esentative testimony
, Ericss o n ’ s d o c u me nts , a n d Ericsson’s corpor ate admissions that there is asbestos-c ontaining wire re l ease d as asbestos fibers when cut and stripped. I further want y ou to assume that this proce ss created dust that he saw with his own eyes, that the dust g ot on his clothes, in hi s h air, and in his car , that he breathed that dust into his lungs on a regular and continuous and fr equent ba sis for many y ear s. Doctor, based on y our m edica l training
, s cientific, and medical experience and

rese arc h, in particula

r y our training and experience with asbestos-r elated diseases, do
y ou have any expert opinion reg arding whether Mr. Richard Ca mpb e ll ’ s o c c u

p a tional
exposure to the Anac on d a an d C o n tinental wire and cable was a cause that contributed to his mesothelioma in addition to o t h er o ccupational asbestos exposures?
DEF ENSE COUNSEL : Your Honor, objection, foundation, i m proper hy pothetical, and Rule 213.
THE COURT: Sidebar. I ’m sorry

. Be fore we do that, foundation and rele vancy ? Did we discuss the 213 a spect–
DEF ENSE COUNSEL : We did, y our Honor.
THE COURT: –or ar e you raisingthat for the f irst time right now?
DEF ENSE COUNSEL : I t’s not beingraised f or the fir st tim e. THE COURT: Pardon?
DEF ENSE COUNSEL : I ’m raisingit, your Honor, yes, but– THE COURT: Did we discuss that last we ek?
DEF ENSE COUNSEL : We did dis cuss I think Rul e 213.
THE COURT: And I ruled on it. Then I ’ll overr ule y our objectio n at this time based upon my ruling s on Motions in L aminae [ sic ]; that means mot ions that wer e hear d befor e the c ommenceme nt of the trial. You may answe r, Doc tor. WI TNESS: Yes, that exposure would be a c ontributing fa ctor, a cause .” ¶ 83 At the time of defe ndant’s motion in li mi ne to bar Dr. Dikman’s testimony , defe ndant made the f

ollowing objec tion after pla intiff started the hy pothetical question at issue he re. “DEF ENSE COUNSEL : Yes, y our honor, we have an objection based upon 213. We do not think that we wer e adequately disclosed of the opinions, the fac tual basis for the opinions, and the conclusions of Dr. Dikman in the Scott and Campbell case s. So y es, we have a

n objection as we have disc losed a number of times befor e.” ¶ 84 The crux of defe ndant’s objection was the use of the words, “exposure to Anac onda wire and ca ble was a contributingcause of [plaintiff’s] di sease .” ¶ 85 We believe that plaint i ff’s wr i t t en disclosure adequately disclosed what Dr. Dikman

answe red in the hy

pothetical question. The e x act wor ds that were used in the question and

-17-answe r need not be specific ally set out in a written disclosure wh en t h e subject matter is

adequately disclosed in written discovery

. Def endant ch o se not to take the doctor’s deposition when it had the rig ht to do so to discover with ex actitude what he was g oing to
say

. ¶ 86 Howeve r, even if we found a Rule 213 violation, we would still find that the trial court did not abuse its discretion in overr uling defe ndant’s objection by utiliz ing the six Sullivan fac tors. ¶ 87 First, th er e wa s n o s u rp ri s e t o defe ndant. I t had Dr. Dikman’s Rule 213(f) written disclo s u re that indicated that the witness would testify to a hy pothetical question to deter mi n e ca u s at i o n

. I t knew that a proper hy pothetical question had to be based on the evidenc e and that plaintiff’s evidenc e disclosed dece dent’s exposure t o ca b l e and wire manufa cture d by defe ndant for a long period of time that contained asbestos. I t knew that the witness had opined that all ty pes of asbestos cause mesothelioma. I t took Dr. Dikman’s deposition in the Scott c ase, which wa s a simil ar case , and was well awa re of his opinions. Def endant knew that Dr. Dikman had trave led throug hout the country testifying in asbestos

case s for plaintiffs a

nd findingcausation in si milar ca ses. ¶ 88 Second, Dr. Dikm an ’s t es t i m o n y was not a surprise and there fore not prejudicia l to defe ndant as the witness was disclosed as a controlled e x pert who w ould rende r a positive opinion o n ca usation from a hy pothetical question. I t further knew from the hearing on its motion in limine to bar, befor e the trial, the scope of the question that plaintiff was g oing to ask and ma de no attempt to obtain testimony from a c ontrolled expert on its own behalf to
counter Dr. Dikman’ s testimony

. In addition, it knew the trial court was g oing to a llow the hy pothetical question prior to trial, whe n its mot ion in limine was de nied. ¶ 89 Third, defe ndant knew that Dr. Dikman was a controlled expert who would opine on the asbestos or eff

ects of asbestos and its causation to plaintiff’s mesothelioma. The fac t that the written dis cl o s ure did not use the words “wire and cable ” was not a substantial deviation from what was g iven to defe ndant in the disclosure. ¶ 90 Four

th, there was a lack of diligenc e on the part of defe ndant in not taking Dr. Dikman’ s deposition a

nd in not obtaining its own controlled expert to counter his opinions. Fifth, the objec t i on by the defe ndant was timely
, and six th, we cannot say that the party calling the witness was not in g ood faith, as a ll of the fac ts indicate g ood faith. ¶ 91 We cannot find that the t rial court abused its discre tion in deny ing defe ndant’s mot ion in limine and later in overr uling defe ndant’s objection to the hy pothetical question asked to Dr. Dikman.

¶ 92 CONCLUSI ON ¶ 93 The trial court proper ly denied defe ndant’ s m o t ion for judgme nt notwithstanding the verdic t or, in the alternative, for a new trial. The OSHA regulations wer e proper ly excluded,

an y i mp ro per statements during closing arguments wer e cure d by the trial court and no prejudice resulted, a

nd plaintiff did not violate I llinois Supreme Court Rule 213.

-18-¶ 94 Affir med.

-19-