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Conspiracy Or Not, Part 4 Why?

In the last post, we looked at the connections between Mr. Holmes and the companies that were involved in asbestos industry – and how they might have borne some liability in the death of the plaintiff's mother. In short, one of the defendants' corporate predecessors engaged in a conspiracy – set forth in writing – to suppress information related to asbestos health hazards. In addition, the other defendant's predecessor once shared a board member with Johns-Manville, a corporation that was very near the heart of the conspiracy – and supplied raw asbestos to UNARCO, where the victim's husband was employed in the early 1960s.

 

Because of this, the plaintiff's lawyer argued that these companies "did know, or should have known" about the  hazards of asbestos.

 

In addition, medical experts have shown that asbestos disease can result from secondary exposure – and past cases both in the U.S. and abroad have set precedents in which companies can be held liable for such exposure.

 

Yet the appellate judge, the Honorable  Scott Drazewski of Illinois Fourth District, overturned the case – and the Holmes estate will receive nothing.

 

Why? In his analysis, Judge Drazewski cites numerous cases – some of which ruled that a company did have a "duty of care" toward the spouse of a worker exposed to "take home" fibers as well as a number of cases in which it was determined that a company had no such duty. The three primary reasons were (A) because no direct relationship existed, (B) the victim had never been on the defendant's premises, and (C) there was no reasonable way the management at said company could have foreseen the danger to the victim at the time. (Guess they never heard of the Wagner study.)

 

In a dissenting opinion,  Presiding Justice Knecht stated:

 

                                "The dangers of asbestos had been known for decades before Roger Holmes worked

                                at Unarco from 1962 to 1963. The first epidemiological study showing  an association

                                between disease and asbestos fibers brought home from the workplace  was not published

                                until 1964. However, it was foreseeable in 1962 to any thinking person that asbestos dust

                                and fibers on a worker's clothing and body would be carried home."

 

Makes sense...maybe the folks at UNARCO didn't know about the dangers of secondary exposure, but the management of Johns-Manville surely did...and someone at Bendix likely knew as well, even if Honeywell's predecessor was not part of the original conspiracy (unlike Pneumo-Abex).

 

So...how did two presumably experienced and fair-minded jurists come to such different conclusions?

 

When shown this case, an acquaintance of mine in the legal profession suggested that I find out who appointed Judge Drazewski. Now, it is no secret that during King George W's Reign of Error, courts across the nation were stacked with judges who had serious corporatist leanings.  However, as it turns out, Judge Drazewski was not appointed to his post – he was elected. Although his credentials and vita are impressive, it is worth noting that his past experience has been primarily in criminal law, not civil litigation. The standards of proof for these areas are quite different: in a criminal case, a defendant can only be found guilty if the case is beyond "reasonable doubt" – a very high standard. In civil litigation on the other hand, determining a defendant's liability is based on a "preponderance of evidence" – which is a lower standard than "reasonable doubt." (This is why O.J. Simpson was found innocent of murder in criminal court, yet found liable for wrongful death in civil court.)

 

It is likely that Judge Drazewski ruled in good faith based on his own experience and interpretations of the law  – but one cannot help but wonder if his decision might have been different had he come from a litigation background rather than criminal justice.

 

Sources

 

Korris, Steve. "Fourth District Reverses Asbestos Verdict; Justices Also Overrule Conspiracy Precedents." Madison County Record, 20 July 2011.

 

Holmes v. Honeywell, Pnuemo Abex at. al., No. 4-10-0462. Appellate Court of Illinois 4th District. 22 June 2011.

 

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