$00:0200005720:C522FBC500001658:<LNI='4XSF-40Y0-0060-D0TK-00000-00' MINREV='00000' ERPT=C522FBC5>$01:$=T1*=SS_#NEW-MAIN# Return to the EXTRA Main Menu$%$?$%**********************************************************$03:$=N1298*120$10:SALLY NOLAN, as Executrix of the Estate of CLARENCE NOLAN, Plaintiff, Vs. WEIL-McLAIN, Defendant.$20:No. 2001-L-117$25:APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT$30:$T$=<$=V08576002005000201*1298 2005 Extra LEXIS 201$=>$40:$?$%March 18, 2005, Decided$45:$?$%March 21, 2005, Filed$110:$=P1298*1 Gary W. Jacobs, Judge.$115:Gary W. Jacobs$120:$T$=B$UORDER ON POST-TRIAL MOTIONS$O$=R$TTHIS MATTER comes before the Court on the Defendant WEIL-McLAIN's post trial motion filed March 10, 2004. Plaintiff's Response was filed June 16, 2004, to which Defendant replied on June 29. The matter was set for hearing on the motion and heard on July 20, 2004. Due to time availability, the hearing was continued in progress and arguments were completed September 8, 2004. The court took the matter under advisement and this Order follows. The court made every effort to rule within 60 days of the hearing. The delay in ruling is based primarily upon the length and nature of the trial, the voluminous exhibits and trial record, and, quite honestly, the fact that the court has reconsidered its ultimate opinion several times in the process. Several readings of the trial transcript as well as reconsideration of what the trial court's ultimate function is supposed to be, have gone into this ruling.$TThe court must preface its ruling with the observation that the conflict, for the court in this case, has been between what the court considers the taw $Ishould$N be, and the current state of the law in asbestos litigation. $=P1298*2 In addition, the court has had to consider the appropriate functions of trial versus appellate courts when addressing the state of the law. Those conflicts have resulted in several re-writes of this opinion and the court takes full responsibility for the delay in ruling. Neither party is served well when it takes this long for a court to render an opinion, and for that I am sorry.$T$UFACTS$O$TOn January 12, 2004 the Plaintiff SALLY NOLAN, the widow and Executrix for the estate of CLARENCE NOLAN proceeded to trial against the only defendant remaining, WEIL-McLAIN, a boiler manufacturer from Michigan City, Indiana. Four other defendants, after last minute settlements, were removed from the case immediately before jury selection.$TPlaintiffs decedent was a plumber/pipefitter who, over a 38 year career (from 1952-1990) may have worked on WEIL-McLAIN boilers 20-25 times. (Tr. Vol. V, Randy Nolan, pp. 898, 938, 942) His son, Randy, worked with him from 1972 until his retirement and during that time, 75% of his work was at a particular facility; the Quaker Oats plant in Danville. (Tr. Vol. V, Nolan, pp. 941-944) During the time decedent worked with his son, they were called out from time to$=P1298*3 time to install or remove boilers. Tr. Vol. V, p. 944)$TThere was no factual dispute that the cause of decedent's death was mesothelioma, a malignant tumor of the membrane lining the lungs, chest and abdominal cavities which has a latency "measured on an average of 20 to 40 years". (Tr. Vol. VI, Dr. Eugene Marks, p. 1073) Mr. Nolan was found to have a "diffuse malignant mesothelioma of the pleura, and it had invaded into his chest wall." (Tr. Vol. VI, p. 1076) Mr. Nolan first complained of back pain in early 2001, was subsequently diagnosed with mesothelioma and died October 1, 2001. (Tr. Vol. V. Dr. Hensold pp. 1012-1020) In his case, the tumor had grown into the vertebrae and spinal column. (Tr. Vol. VI, Dr. Marks, p. 1069) He eventually was unable to walk or sleep in bed and died in the hospital. (Tr. Vol. IX, Sally Nolan pp. 1479-1486)$TThere was also no factual dispute that, for a period of time prior to 1974, WEIL-McLAIN, a boiler manufacturer, produced both "package" and "knock-down" or "sectional" boilers which contained various asbestos-containing components.(Tr. Vol. IV, Paul Schuelke pp. 703, 706, Vol. X, pp. 1562-1593, Tr. Vol. XI, p.1626) There were factual disputes regarding$=P1298*4 exactly which asbestos-containing components may have been present on Defendant's boilers at various times. (Tr. Vol. XI, Schuelke, pp. 1603, 1638)$TIt was the position of the Defendant that WEIL-McLAIN did not know asbestos was hazardous until 1974. (Tr. Vol. IV, Schuelke, p.697) They maintained that once OSHA came into the plant sometime in March of 1974, they discontinued the use of all asbestos in the plant and placed warnings on all asbestos-containing components shipped in the field. (Tr. Vol. XI, pp. 1653, 1668)$TMr. Schuelke, the corporate representative for WEIL-McLAIN, also testified that by July of 1974 they had removed the asbestos containing powder cement and replaced it with a malleable putty. He said they replaced asbestos-containing rope with a non-asbestos product in 1982, and by 1986 had removed all asbestos containing components in their boilers. (Tr. Vol. XI, p. 1654.)$TThe Plaintiff's case began with Mr. Schuelke being called as an adverse witness. He was called to establish the state of the industry's knowledge regarding the hazards of asbestos and WEIL-McLAIN's use of asbestos-containing components. (Tr. Vol. IV, Schuelke, pp. 690-692, 695-697, 699-713) WEIL-McLAIN$=P1298*5 acknowledged that, prior to 1974 they did not warn anyone about the hazards of asbestos which may have been contained in various component parts of their boilers. (Tr. Vol. IV, pp. 715, 750)$TPlaintiff then called William Ewing, an industrial hygienist to give an overview of asbestos in general and the history of governmental regulations regarding asbestos. He explained how 95% of all asbestos in this country was chrysotile, found predominantly in Canada. The next most common in the US was amosite, from South Africa, followed by crocidolite, or "blue asbestos", also from South Africa, then anthophyllite and lastly, primarily as a contaminant, tremolite. (Tr. Vol. IV, William Ewing p.763)$THe explained how both OSHA and the EPA originated in 1970, with the first regulations regarding asbestos being promulgated in 1971. At that time, no distinction was drawn between the different kinds of asbestos. (Tr. Vol. IV, p.764) The National Institute for Occupational Safety and Health (NIOSH) also established its first recommended standards and procedures for dealing with asbestos in 1971; again with no distinction drawn between the different forms of asbestos. (Tr. p.765)$TMr. Ewing then explained$=P1298*6 the history of Threshold Limit Values (TLVs) for asbestos from 1947 through 1976. The point Plaintiff sought to make was that the values or levels of concentrations of fibers per cubic centimeter which these agencies have found acceptable to minimize the risk of cancer associated with asbestos exposure have progressively decreased over the years. Eventually, the standards indicated that ". . . only a ban or some value approaching zero would" do so. (Tr. p.772)$THe noted that, from an industrial-hygiene perspective, "it's well established that exposure to asbestos results in an i ncreased risk of what we call asbestos-related diseases . . ." (Tr. p.774) Mr. Ewing rendered an opinion that the decedent who, when working on boilers, removed asbestos rope, mixed dry asbestos cement or tore out air cell insulation as described by decedent and others in depositions he reviewed in this case, would have had a "significant exposure" to asbestos. (Tr. pp. 792-796)$TA "significant exposure" was defined as a tenfold increase over some pre-existing value, and Mr. Ewing placed the exposures at values from in excess of one fiber per cc for removing rope to 20-500 fibers per cc for mixing dry asbestos$=P1298*7 cement. (Tr. pp. 793-796) He also explained how, based on the concept of dose-response, additional exposures increased the risks of contracting asbestos-related diseases. (Tr. p. 797)$TIt was Mr. Ewing's opinion that safe industrial hygiene practices would have required warnings for everything from the boiler room itself to warnings about each of the asbestos-containing components found on or in the boilers. (Tr. pp. 802-808)$TIt was also Mr. Ewing's opinion that anyone working in or around asbestos or any asbestos-containing component should have been warned about the need for wearing a respirator and protective clothing. (Tr. pp. 809-811)$THe acknowledged on cross-examination that he could not give an opinion on whether increased or significant exposures, in and of themselves, were the cause of CLARENCE NOLAN'S mesothelioma. (Tr. pp. 828-829) All he could say, as an industrial hygienist, was that generally increases in exposures to asbestos increase the risk of asbestos-related diseases. (Tr. p.828)$TOn cross-examination he said the two primary factors relevant to "dose" were duration and intensity of exposure. (Tr. pp. 835-836) He also defined the concept of "dose-response" to mean$=P1298*8 the greater the dose, the greater the risk of illness. He noted the literature indicated that mesothelioma did not follow a linear dose-response model, like many of the other asbestos-related diseases did. (Tr. pp. 837-839)$TMr. Ewing said that TLVs were "designed to protect workers and to set a level of exposure that most workers can work in without injury over their entire working lifetime." (Tr. p. 841) In addition to TLVs, he acknowledged there are now PELs, or "permissible exposure levels" for asbestos set by OSHA at 0.1 fibers per cc based on an eight-hour time-weighted average. This is the concentration of asbestos fibers to which a person may be exposed over an eight-hour work day. Quoting from the Federal Register, however, Mr. Ewing noted: "Persons exposed at the revised limit remain at significant risk of developing an asbestos-related disease". (Tr. pp. 842-843)$TMr. Ewing also admitted decedent would have experienced significant exposures to many other forms of asbestos-containing products and components in his years as a plumber/pipefitter. (Tr. pp. 858-862)$TThe decedent's son Randy then testified to his work history with his father. He described several jobs they did $=P1298*9 together between 1972 and the mid-80's where they replaced, repaired, inspected or installed WEIL-McLAIN boilers in Danville, IL. He described the process of removing asbestos rope, mixing dry asbestos cement, and repairing broken pieces of air cell on the insides of the boiler jackets. (Tr. Vol. V, Randy Nolan, pp. 899-938) In each instance, he did not recall having ever seen a warning with regard to the asbestos-containing components, or an admonition to wear a respirator while working with any of them. (Tr. Vol. V, pp. 915, 919-920, 923,92 6-927)$TOn cross-examination and after substantial argument of counsel had been heard, Randy testified that his father was first diagnosed with asbestosis, a separate and distinct lung disease, in 1988. He also acknowledged that his father had filed suit in federal court claiming he contracted the disease through his exposure to asbestos. He did not know whether his father named WEIL-McLAIN as a defendant in that suit.(Tr. p. 951) $(Outside the presence of the jury it had already been established that such a suit had been filed, and that Defendant WEIL-McLANE had never been named. The issue was whether Defendant was going to be permitted to mention$=P1298*10 the suit and under what circumstances. It will be addressed later in this opinion$)$TThe videotaped deposition of the decedent CLARENCE NOLAN was then played for the jury during which Mr. Nolan described his career as a plumber/pipefitter. He similarly described the process for repairing, replacing, inspecting and/or installing WEIL-McLAIN boilers. He also told about the deterioration of his medical condition after first complaining of back aches until he was ultimately diagnosed with mesothelioma in early 2001.$TDr. James Hensold, decedent's primary care physician, testified to the course of medical treatment the decedent underwent after first complaining of back pain in early 2001. (Tr. Vol. V, Dr. James Hensold, pp. 1012-1029) He described the various tests and procedures which ultimately led to a diagnosis of mesothelioma in July of 2001. (Tr. Vol. V, Hensold, pp. 1013-1016) From there, his care involved assisting with local treatments and pain control, since most of the actual cancer treatment occurred in Chicago.(Tr. Vol. V, pp. 1016-1017) Dr. Hensold testified that CLARENCE NOLAN died on October 1, 2001, and that the primary cause of his death was mesothelioma. (Tr. pp. 1020-1023) $=P1298*11 $TDr. Eugene Mark, a pathologist who serves as Associate Professor of Pathology at Harvard Medical School and Massachusetts Institute of Technology, as well as Professor of Pathology at Massachusetts General Hospital was next called by the Plaintiff to testify about asbestos-related diseases. $(Dr. Marks appeared to be one of several 'generic experts' upon whom both plaintiffs and defendants in asbestos litigation rely.$)$TDr. Marks made his position with regard to asbestos-related illnesses and causation known early in his testimony. "My articles always say that all forms of asbestos cause mesothelioma . . . I've always assumed that they all are capable of causing the tumor." (Tr. Vol. VI, Dr. Eugene Marks, p. 1061)$THe then went through an explanation of the chemical make-up of asbestos, its properties and the various diseases caused by asbestos. (Tr. Vol. VI, Marks, pp. 1063-1069) He described asbestosis as a scarring disease inside the lungs which is not a pre-malignant form of mesothelioma. According to his testimony, they are separate and distinct diseases; one is not caused by, or the source of the other. (Tr. pp. 1066-1067, 1069-1070) If an individual has both, all that tells you$=P1298*12 is that they have been exposed to asbestos. (Tr. p. 1070)$TDr. Marks explained that the latency period, or time between exposure and development of the disease, for mesothelioma is measured on an average of 20 to 40 years. He said the average time is 20 years or more. (Tr. p. 1073) He described dose-response as "the more asbestos you inhale, the greater the likelihood that you will develop the tumor; and the more asbestos you inhale, the shorter the latency." He acknowledged that the dose-resp onse curve is not perfect and it is very difficult to measure when dosages are very small. However, he stated that the one and only cause of diffuse malignant mesothelioma was asbestos. (Tr. p. 1074) In Dr. Marks' opinion, there are no safe levels of asbestos. (Tr. p. 1075)$TUpon review of decedent's medical records, Dr. Marks diagnosed his condition as diffuse malignant mesothelioma which had invaded the chest wall and caused his death. He also expressed his medical opinion that asbestos caused the mesothelioma from which CLARENCE NOLAN died. (Tr. p. 1077)$TUsing several graphs, Dr. Marks then explained how mesothelioma is a fairly new disease, relatively unknown before 1960, which is believed $=P1298*13 to correspond with the increased use and then ultimate restriction of asbestos. When you take into consideration the known latency period of 40 years, he, and others, believe the two show a correlation. (Tr. pp. 1079-1080) He stated the survival rate for patients with mesothelioma was 25% after two years and zero after five years. (Tr. pp. 1084-1085)$TIt was his opinion that "each and every exposure to asbestos that Mr. Nolan had was a substantial contributing factor in causing his malignant mesothelioma". (Tr. p. 1085) He explained that one fiber won't necessarily cause mesothelioma, nor will substantial exposure to lots of asbestos fibers necessarily result in the development of mesothelioma. However, it is a multi-stage process which, once begun cannot be stopped. For that reason every exposure is important in the ultimate development of the tumor. (Tr. p. 1086)$THe described mesothelioma as a very painful disease due to its location on the nerve-rich outer surface of the lungs and said it would have caused decedent pain between diagnosis and death. (Tr. p. 1089) $(This had also been testified to by Dr. Hensold, Randy, and was evident in the video-taped deposition of decedent played$=P1298*14 before the jury. SALLY NOLAN would also testify to the pain and suffering when she testified.$)$TDr. Marks further opined that no asbestos fibers were safe to inhale, regardless of size and that no chrysotile fibers, in any quantity were safe to breathe. It was his opinion that exposure to chrysotile asbestos fibers could cause malignant mesothelioma. (Tr. pp. 1090-1091) He also said there was no way to determine which asbestos exposure during Mr. Nolan's career was the sole or single cause of his mesothelioma. (Tr. p. 1092)$TIn response to an eleven-part hypothetical question, Dr. Marks' ultimate opinion was that CLARENCE NOLAN's exposures to WEIL-McLAIN asbestos-containing products contained in or shipped with their boilers and supplied by Defendant were a substantial cause of his mesothelioma and death. (Tr. pp. 1093-1097)$TOn cross examination, Dr. Marks re-iterated his opinion that there are only three known causes of diffuse malignant mesothelioma (DMM); asbestos, extreme levels of radiation, and a mineral found only in Turkey called crionite. (Tr. p. 1111) It was also his opinion that there is no such thing as "idiopathic" DMM, or mesothelioma with no known cause. (Tr. p. 1113) $=P1298*15 He acknowledged some experts in his field are of the opinion that up to 15% of DMM are idiopathic, and that his opinion is the minority view. (Tr. pp. 1116-1117) He also agreed that most Americans have been exposed to asbestos during their lifetime and that most would reveal millions of asbestos fibers in their lungs, yet the vast majority will not develop DMM.$TDr. Marks was not aware of any epidemiological study that reported an increased risk for c hrysotile asbestos fiber exposures of .1 fibers per cc over the course of a working lifetime. (Tr. p. 1122) He agreed that his general opinion that every exposure to asbestos contributes to the development of DMM did not take into consideration dose, duration or the nature of asbestos fiber exposure. He maintained this opinion even while acknowledging that, on a fiber-by-fiber basis, chrysotile was the least carcinogenic of the various asbestos types and that chrysotile had a much shorter half-life than the other forms of asbestos fibers. (Tr. pp. 1123-1129)$TDr. Marks agreed there are studies which failed to demonstrate an association between chrysotile asbestos exposure and mesothelioma. (Tr. p. 1131) He noted however, on re-direct examination$=P1298*16 that chrysotile fibers have a shorter half-life. Since the process is ongoing, it would not be surprising, considering the long latency period for DMM, that one would be either unable to find, or find few chrysotile fibers in these study groups. (Tr. pp. 1161-1162)$TDuring an offer of proof, Defendant's counsel was able to get Dr. Marks to acknowledge that CLARENCE NOLAN's exposure to pipe covering and insulation (which he had already agrees were high-dose, high exposure products) was a significant contributing factor in the development of his DMM. He would not agree with the statement that, without any other asbestos exposure, decedent's exposures to pipe covering and insulation could have caused him to develop DMM. If it were assumed only that he had DMM and that his only exposures were to pipe covering and insulation, then he would agree. (Tr. Vol. VII, Dr. Marks, pp. 1169-1170)"$TPlaintiff then called Richard Lemen, a Ph.D in epidemiology who was a former Assistant Surgeon General, and former Acting Director of NIOSH (National Institute for Occupational Safety and Health). He described epidemiology as the study of diseases, their cause and prevention. (Tr. Vol. VII, Richard Lemen, $=P1298*17 pp. 1171-1173) His primary area of study since 1970 has been asbestos-related diseases. (Tr. Vol. VII, Lemen, p. l176)$TAccording to Dr. Lemen, the majority view in his profession is that chrysotile asbestos can cause malignant mesothelioma. (Tr. Vol. VII, p. 1180) He then related the historical evolution of the medical research and information regarding the hazards of asbestos and asbestos-related diseases from a lengthy document he had prepared over the years which he referred to as the "Asbestos Timetable". (Plaintiffs Exhibit # 178)$TThrough this 'timetable" Dr. Lemen was able to explain how, by the late 1800's certain segments of the medical community were aware of a correlation between working with asbestos and a particular lung disease. By the mid 1920's asbestosis was identified and by 1938 the first exposure concentrations were established; where it was believed that exposures below these concentrations would not cause asbestosis. (Tr. Vol. VII, 1186-1187)$TThe correlation between asbestosis and lung cancer was confirmed by a study in 1955. There had already been some discussion of asbestosis and mesothelioma in the 1940's, but a South African study in 1960 concluded that mesothelioma$=P1298*18 was definitely associated with asbestos. (Tr. pp. 1188-1189)$TBy 1964 and the frequently-referenced Selikoff study, the correlation between not only raw asbestos or asbestos manufacturing and asbestosis, lung cancer, and mesothelioma was extended to include asbestos containing products. Today, the scientific community has concluded that if there is exposure to asbestos, there is an elevated ri sk of developing one of these asbestos-related diseases. (Tr. pp. 1190-1191)$TDr. Lemen then described how this information began appearing in various engineering as well as heating and ventilating publications in the 1930's. From his review of the literature, he was of the opinion that a company such as WEIL-McLAIN, would have had access to this information as well as a series of publications by the Department of Labor for the Commonwealth of Pennsylvania (where WEIL-McLAIN also did business) relating to the hazards of asbestos in the workplace. (Tr. p. 1191-1197)$TBy the 1950's, according to Dr. Lemen, Indiana, where Defendant's primary facility has always been located, recognized asbestos-related diseases as compensable under their workers' compensation laws.(Tr. p. 1197) The first standard for$=P1298*19 asbestos exposure was adopted by OSHA in 1971. (Tr. p. 1212)$TDr. Lemen's ultimate opinion was there was sufficient knowledge available for a company like WEIL-McLAIN to have become aware of the hazards of asbestos before 1974, and that it was the law for any company operating after the establishment of OSHA to be aware of the standards applicable to their workplace. (Tr. p. 1216)$TIt was also his opinion that, had WEIL-McLAIN undertaken any investigation of the potential hazards relating to the asbestos-containing products shipped with their boilers, they should have known by the 1930's they were hazardous to people like the decedent. (Tr. p. 1217)$TOn cross-examination, Dr. Lemen acknowledged having previously testified under oath that he had no opinion as to when it became known in the field of engineering that asbestos presented health hazards. He also said that was consistent with his testimony on direct examination, although he had previously given dates for several engineering publications. (Tr. p. 1246, p. 1191) He further acknowledged that at no time between the 1930's to the 1950's did the United States Public Heath Service ever recommend that warnings be placed on any finished$=P1298*20 asbestos-containing product. (Tr. p. 1250)$TWhen questioned about the Public Health Service's "Dreesen Study" of 1938, Dr. Lemen agreed it concluded that if asbestos dust concentrations could be kept below five million particles per cubic foot it was not likely to cause asbestosis. (Tr. Vol. VIII, Lemen, p. 1300) He was then asked about the progression of research and information available since that time, and the creation of the TLVs previously mentioned. He agreed that the TLV of five million particles per cubic foot was the acceptable threshold limit value until the late 1960's. (Tr. Vol. VIII, p. 1304)$TDr. Lemen was then questioned about the state of various forms of engineering literature from 1918 on, and how, in most of them, there would be found no reference to health hazards of asbestos. (Tr. p. 1315) When questioned about his ''time-line", Dr. Lemen acknowledged he did not report the findings of a well-known report by the United States Maritime Commission published in 1946.$TReferred to as the "Fleischer-Drinker Study", it was the first epidemiological study looking at the risk to end-users of asbestos-containing products. In the report, the authors concluded an asbestos dust$=P1298*21 count below five million particles per cubic foot was 'good dust control' and said that asbestos insulation pipe covering was not a dangerous occupation. By 1964 and the Selikoff study, that was known to be incorrect. (Tr. pp. 1315-1319)$TAlso on cross-examination, Dr. Lemen admitted that in preparing his "time-line" he did not look at the state of knowledge regarding the hazards of asbestos which may have been reported in engineering journals of the time, did not research what information engineering students were being taught about asbestos at any point in time, and was not aware of what engineering manuals or textbooks said about the use of asbestos during the times covered by his "time-line". (Tr. pp. 1321-1324, 1343)$THe was then taken through a series of engineering and industrial medicine publications from the '40's, and '50's which did not appreciably change what were believed to be safe limits of five million parts per cubic foot. (Tr. pp. 1325-1339) Dr. Lemen was asked about a report by Dr. Selikoff in 1970 where he referenced the problem regarding lack of knowledge about the effects of asbestos as the fault of industry, labor, science and medicine. (Tr. p. 1350)$THe then went$=P1298*22 through the history of the Occupational Safety and Health Administration (OSHA) and its regulatory process. In 1971 OSHA issued its first regulation concerning asbestos, which set out different standard for permissible exposure limits of five fibers per cc per 8-hour time weighted average. This meant a worker's exposure for his workday, on the average, had to be below five fibers per cc. (Tr. p. 1355) In addition, there were 'excursion' or incidence exposures established often fibers per cc. for no more than 15 minutes, five times a day. These became known as the PELs or permissible exposure limits. (Tr. pp. 1355-1357) Dr. Lemen then discussed the evolution of lower PELs from 1971 through 1994. They were progressively lowered from 2 fibers per cc. for an eight-hour time-weighted average in 1976, to .2 fibers per cc in 1986, and then to .1 fibers per cc in 1994.(Tr.p. 1359-1361)$THe explained how OSHA bases its regulations on the linear dose model which looks at incidents of disease at certain known exposure levels and extrapolates what the incidents should be at lower levels of exposure for which there are not studied results. (Tr. pp. 1370-1371)$TDr. Lemen agreed he was not aware of$=P1298*23 any epidemiological studies which showed any increased risk of mesothelioma below the nine fiber daily dose recorded in the Finkelstein study of a group of Canadian cement plant workers mixing commercial amphibole fibers into cement. Tr. Vol. VIII, pp. 1369-1370, Vol. IX, p. 1375)$THe was then questioned about the chemical properties of serpentine asbestos fibers (of which chrysotile is the only one of commercial significance) and amphiboles; which include both amosite and crocidolite. He agreed that several studies have shown a link between crocidolite, amosite and tremolite causing mesothelioma, including one in 1990 which stated: "There is overwhelming evidence that crocidolite is the main fiber associated with mesotheliomas." It also noted that although both tremolite and amosite have produced evidence of causing mesotheliomas there was no clear evidence that exposure to uncontaminated chrysotile caused them. (Tr. Vol. IX, pp. 1376-1378)$TA series of studies reaching this or substantially similar conclusions were all acknowledged by Dr. Lemen as extant in the field. His conclusion from these studies was that people had to breathe more chrysotile fibers to develop mesothelioma than$=P1298*24 they do amphiboles, or that amphiboles were more potent in causing mesothelioma. (Tr. p. 1388) He also agreed there is still scientific debate over whether chrysotile can cause mesothelioma. (Tr. p.1390)$TDr. Lemen further explained his position on re-direct examination to be that although most scientist s would agree amphiboles, on a dose-by-dose basis are more capable of causing mesothelioma, there are no studies which show that commercial chrysotile does not also cause mesothelioma. (Tr. p. 1392) He noted that of all commercial forms of asbestos in use, all have been found to contain some level of contamination with amphiboles, so it becomes academic to ask about $Ipure$N chrysotile since it does not appear to exist commercially. (Tr. p. 1393) According to Dr. Lemen, "every epidemiological study that's looked at every population where there has been exposure to chrysotile has concluded that there is a risk of mesothelioma." (Tr. p. 1394)$THe also noted how the various TLVs were never intended to fully prevent mesothelioma. (Tr. pp.1400-1401) He discussed some of the flaws in certain studies mentioned on cross-examination and that some studies were funded either in whole or in part$=P1298*25 by asbestos manufacturers. He also told how the 1964 Selikoff symposium entitled "Biological Effects of Asbestos" was open to the public, widely publicized and attended by both labor and asbestos industry representatives. The results of the symposium were published and would have been available to companies like the Defendant. (Tr. pp. 1409-1411)$TSALLY NOLAN, widow of the decedent was then called to testify as a 'life and death' witness. She described how she met the decedent, how they raised a family together, what he did with his time when not working, and the various things which were his responsibility at home. She then began to describe the progression of the disease itself and where they went for treatment. (Tr. Vol. IX, Sally Nolan, pp. 1429-1440)$TPlaintiff then sought to elicit from Mrs. NOLAN the course of medical treatment and what they were told by the doctors, This ultimately resulted in a heated exchange between the court and counsel for the Plaintiff since the information he sought, needed to come from the treating physicians and the emotional impact on the widow was substantial. (Tr. Vol. IX, pp. 1470-1474) Previously, several attempts were made to allow Mrs. NOLAN $=P1298*26 to testify about the course of treatment. It became apparent that she was not able to respond to the questions without including objectionable hearsay. (Tr. pp. 1439-1454) The court ruled she would be allowed, over the Defendant's objection, to testify to the diagnosis of mesothelioma. (Tr. p. 1454) In addition she was allowed to testify about the medical procedures of which she was personally aware, how it made both decedent and she feel, evidence of pain and suffering, and the emotional impact on the decedent when he learned had mesothelioma. (Tr. pp. 1454-1456)$TShe then testified to the course of treatment and how it progressed as the tests kept indicating a more serious condition. (Tr. pp. 1456-1463) Mrs. NOLAN described the physical symptoms she observed, the obvious pain her husband was in and how he his condition deteriorated over the ten-month period from first symptoms to his ultimate death. (Tr. pp. 1476-1487$TAlthough unable to say whether WEIL-McLAIN was a defendant in a 1988 asbestos-related injuries law suit filed by decedent, Mrs. NOLAN acknowledged the suit was filed. (Tr. pp. 1487-1488)$TDuring discussions outside the presence of the jury the parties discussed various$=P1298*27 exhibits which Plaintiff sought to introduce. The issue regarding the 1973-1974 OSHA citation was discussed and at that time the court said:$=S$%$?$%"There may be some relevance to the OSHA citation issue because of the assertion by the defendants that this is the f irst time we knew... I mean the fact that it exists is relevant to prove the point that they knew as of that date." (Tr. p. 1499)$=I$TAfter substantial discussion between counsel and the court regarding the significance of handwritten notations on an OSHA Complaint form (Plaintiffs Exhibit # 111) dated November 23, 1973, the court found;$=S$T"...Plaintiffs Exhibit 111 - does not prove notice of anything other than the fact - it doesn't even prove notice. It proves that someone Field a complaint with OSHA, Doesn't prove the defendants had notice of it. Doesn't prove anybody told them anything about it. It proves someone filed a complaint with OSHA sometime at or around November 23rd of 1973 alleging that there was excessive asbestos dust. That's what it proves."$T"Now I'll let it in for that purpose, whatever that purpose is..." (Tr. pp. 1511-1512)$=I$TWhen discussing the actual citation issued to WEIL-McLAIN (Plaintiff's Exhibit #$=P1298*28 112) the court found it was admissible to show notice to the defendants during the month of January 1974. (Its relevance was based upon the fact that Defendants had previously indicated they had no notice of the dangers of asbestos until notified by OSHA sometime in March or April of 1974) (Tr. pp. 1512-1513)$TPlaintiff's counsel, when arguing about the admissibility of # 112, characterized as "...this is a straight notice document." (Tr. p. 1514)$TPlaintiff then published various interrogatory questions and answers as well as responses to requests to admit or produce to the jury; which they were admonished to accept as if they had come from live witnesses. (Tr. Vol. X, pp. 1536-1547) Many of these responses had to do with the nature and composition of the boilers manufactured by Defendant, as well as the various asbestos-containing components which may have been shipped with them or in them, from time to time. They also identified the various manufacturers from whom Defendant obtained the components and the approximate dates they discontinued using them; which ranged from 1974 up to 1986. (Tr. Vol. X, pp. 1537-1546)$TDefendants began their case by re-calling Mr. Shuelke to testify about$=P1298*29 the various boilers WEIL-McLAIN has manufactured over the years and how they operated as part of a heating system. Using several large posters he described the basic components of WIEL-McLAIN boilers, as well as their function and operation. Mr. Shuelke explained the various uses of asbestos-containing components and how they were applied in the construction of boilers. (Tr. Vol. X, pp. 1561-1593)$TWhen discussing the use of asbestos rope, Mr. Shuelke explained they would not use both asbestos rope and asbestos cement together. (Tr. Vol. X, p. 1578) He also noted how their boilers were constructed with several sections tied together by rods which would allow for tension to be applied uniformly throughout the sections. As a result, if a section were broken, it would not require the removal of every section, but merely the removal of the rod from the adjoining sections, separating them, extracting the broken section and replacing with a new one. According to Mr. Shuelke, if someone (namely Randy Nolan or his father, the decedent, in his deposition) described removing all the sections to get to a broken one, he would be talking about something other than a WEIL-McLAIN boiler. (Tr. pp. $=P1298*30 1579-1580)$TMr. Shuelke also testified about the use of asbestos millboard and air cell insulation on WEIL-McLAIN boilers and he indicated, in both instances that these were installed at the factory, and there would be no reason for someone either installing, removing or repairing WEIL-McLAIN boilers to ever come in contact with either one. (Tr. pp. 1586-1587, 1591-1593)$THe also testified about the metal jackets that came with the boilers. According to Mr. Shuelke, if an end-user chose to coat their boiler with asbestos cement instead, they did not make any money on the jacket and they did not employ people to insulate boilers in the field. (Tr. pp. 1589-1591) He also said that air cell only came with a few models of coal-fired boilers sold in the 30's and 40's, and only two model years of atmospheric units. (Tr. pp. 1592-1593)$THe then gave a history of WEIL-McLAIN, pointing out that asbestos rope was not incorporated into their design until the 1950s and, since air cell pre-dated that, no WEIL-McLAIN boiler would have had them both on it at the same time. (Tr. Vol. XI, Paul Schuelke, pp. 1601-1603) Mr. Schuelke explained what 'principles of engineering' were, and how they dictated$=P1298*31 the construction of boilers in general. Tr. Vol. XI, Schuelke, pp. 1606-1610) He noted how engineering manuals from the 40's through the 80's discussed the use of asbestos in boiler construction, without mentioning any danger associated with it. (Tr. Vol. XI, pp. 1610-1611) He said it was not until 1989 that the American Society of Heating, Ventilating, and Air Conditioning Engineers (ASHRAE) added a statement to the definition of asbestos that it was carcinogenic and was to be used with caution. (Tr. p. 1612)$TDefendant's counsel asked about some of the various journals he was shown during previous testimony and Mr. Schuelke said these were used more by systems or consulting engineers. (Tr. pp. 1613-1614) He pointed out how other engineering treatises published as late as 1996 made a minor reference to asbestos being a carcinogen. (Tr. p. 1615)$TMr. Schuelke testified that, based upon his experience with boiler manufacturing, it was the custom and practice in the industry up into the 1970's to use asbestos-containing components in the manufacture of boilers. (Tr. pp. 1625-1626) He explained the difference between "package" and sectional or "knockdown" boilers. He said that package $=P1298*32 boilers have been manufactured at WEIL-McLAIN from the 50's through the 80's with no worker involved in their daily construction ever contracting mesothelioma, lung cancer, or any other asbestos-related cancer. (Tr. pp. 1631-1632)$TIn response to questioning by the Plaintiff, Mr. Schuelke said the Indiana building codes from 1944 through 1968 required that boilers used for steam or water heat were to be covered with asbestos. (Tr. p. 1634) He indicated that requiring an asbestos coating to the outside of a WEIL-McLAIN boiler cut into the sales of their insulated jackets, which could not be used in conjunction with asbestos coating. The implication being that asbestos coating was not something WEIL-McLAIN encouraged. (Tr. p. 1638)$TThere was substantial discussion outside the presence of the jury regarding the extent to which the Defendant was going to be able to inquire about the OSHA citation previously admitted for the sole purpose of notice to the Defendant. (Tr. pp. 1642-1652) The court concluded the Defendant was not going to be able to have Mr. Schuelke testify from hearsay information regarding the circumstances surrounding the citation which pre-dated his employment. (Tr. pp. $=P1298*33 1651-1652)$TAgain, the court made the point that the OSHA citation and accompanying documents (Plaintiff's Exhibits 108-110) were admissible only for the limited purpose of noti ce to the Defendant and the jury was going to be instructed accordingly. (Tr. p. 1652)$TMr. Schuelke then explained WEIL-McLAIN's response to the information that asbestos was hazardous. They proceeded, over a period of several months, to begin removing all asbestos products from the plant and to place warnings on any asbestos products shipped to the field, excluding a pre-packaged putty which did not create dust. (Tr. p. 1653) According to Mr. Schuelke, by July they removed all powdered cement from the product, the asbestos rope was removed in 1982 and by 1986 all asbestos products were replaced. (Tr. p. 1654)$TMr. Schuelke testified that after OSHA came in 1974 WEIL-McLAIN did not believe their product created a health hazard when used in the field, or when contained within package boilers. (Tr. p. 1655)$TOn cross-examination, Mr. Schuelke said it was around March of 1974 when WEIL-McLAIN first became aware of the hazards of asbestos, and that they began placing warnings on asbestos components within 30 days $=P1298*34 thereafter. (Tr. pp. 1667-1668)$THe was also asked about various boiler design alternatives which may have been available to WEIL-McLAIN during the time they were using asbestos components. In each instance, Mr. Schuelke said they found them to be either of limited application, or short-term. (Tr. pp. 1683-1685)$THe admitted that Defendant would have been aware of the nature of products such as asbestos rope and cement based upon either testing or application in the field. (Tr. pp. 1690-1691) He also admitted that boilers sold in Indiana during the 60's would have been covered with asbestos cement, including boilers in their own plant. (Tr. pp. 1694-1695)$THe agreed that WEIL-McLAIN never warned Mr. NOLAN specifically, nor did they warn any distributor of their boilers about the hazards of asbestos. (Tr. pp. 1721-1722) He also acknowledged WEIL-McLAIN never conducted testing on any asbestos-containing component parts to determine if they produced breathable asbestos fibers. (Tr. p. 1723) However, according to Mr. Schuelke, after April of 1974 any asbestos-containing product obtained from Defendanat had a caution on it to avoid breathing the dust. (Tr. pp. 1723-1724)$TDefendant then called$=P1298*35 Frederick Boelter, an industrial hygienist and engineer who had been hired by WEIL-McLAIN to establish a protocol for evaluating exposures associated with asbestos in their products. (Tr. Vol. XII, Frederick Boelter, p. 1810) He was asked to explain the 'linear extrapolation method' used by OSHA to evaluate potential hazards associated with certain products such as asbestos. (Previously testified about by Dr. Lemen) (Tr. Vol. XII, Boelter, p. 1812)$TMr. Boelter said the determination of risk associated with exposure involved looking at concentrations overtime, which then determined 'dose'. (Tr. Vol. XII, p. 1813) He explained that "risk' and 'hazard' as they are used in industrial hygiene, are two different things; 'risk' being defined as the probability of harm, and 'hazard' as the potential for harm. (Tr. pp. 1787-1788) In the case of asbestos, scientists refer to dose and 'fiber years per cc', which means the concentration to which a person is exposed every day, eight hours a day, on the average over the course of one year. (Tr. pp. 1813-1814)$THe then described how both OSHA and the EPA look at groups of workers having similar activities with similar exposures and then evaluate $=P1298*36 the medical information associated with them to plot the incident rate of specific diseases based upon the relationship of incidents to dose. (Tr. p. 1814)$TMr. Boelter testified that the literature for asbestos and incidents of disease is substantial for higher dosages and that they estimate what the incidents would be for low levels of exposure by a process known as 'linear regression analysis'. What this means is that they are presuming what the incidents would be at the lower levels of exposure, and, according to Mr. Boelter, actual studies find this method to be overpredictive. (Tr. pp. 1815-1816)$THe also went through a basic explanation of what asbestos is, and the various forms of asbestos found in the world, providing samples of asbestos in several stages of production. (Tr. pp. 1819-1823) (This had previously been addressed outside the presence of the jury when Plaintiffs' counsel objected to the sealed containers of asbestos ore and products being allowed in the courtroom. A procedure was established whereby the various exhibits were to be placed on a table and the jury filed by to look at them, without touching or picking them up.)$TMr. Boelter said the high point of asbestos$=P1298*37 use in this country was the late 60's to early 70's and most was used from WW II and later. He explained that since it is a naturally occurring mineral it is present in the ambient air we breathe daily. (Tr. pp. 1823-1824) He noted how the total concentration over the course of 70 years, just from breathing our air, would be 1.2 fiber years; with no indication that such a dosage creates a risk of asbestos-related illness. (Tr. p. 1825)$THe went through the history of asbestos standards and permissible exposures, indicating that the last two standards for allowable fibers of .2 fibers per cc in 1986 and .1 fibers per cc in 1994 were promulgated using the linear extrapolation model previously mentioned. (Tr. pp. 1826-1828)$TWhen asked about various asbestos-containing components, Mr. Boelter said that in 1972 the World Health Organization released a statement that "$(t$)here is no conceivable health risk in the use of asbestos-based gasket materials." (Tr. p. 1829) He discussed boilers in general and WEIL-McLAIN boilers specifically; describing their component parts including those containing asbestos. (Tr. pp. 1829-1834). He said that when constructing or installing a boiler, only a small$=P1298*38 part of the time would be spent actually working with asbestos-containing components. (Tr. pp. 1840-1841)$TWhen assessing exposures it was important to consider the actual amount of time during which the person was exposed to and working with the asbestos-containing part. (Tr. p. 1841) He then described a graph prepared from evaluating both estimate manuals and actual work time, which calculated time spent exposed to or working with asbestos during installation, repair and removal of a WEIL-McLAIN boiler. (Tr. pp. 1841-1843)$THe found that for installation, less than 2% of the overall process involved handling an asbestos-containing component. For repair work involving taking sections apart to fix a leak, he found about 5% of the time was spent working with the asbestos rope. For a complete removal of the boiler he found about $I2%$N of the work involved asbestos component parts. (Tr. pp. 1843-1847)$TMr. Boelter explained how he collected the air samples, using OSHA-required methodologies. (Tr. pp. 1849-1851) He also described the processes for counting or calculating the numbers of fibers present in a collected sample. According to today's ACGIH (American Conference of Governmental $=P1298*39 Industrial Hygienists) standards, the first accepted level of exposure of five million  particles per cubic foot translated in to about 30 fibers per cc. (Tr. p. 1852)$THe described PCMs and TEMs; explaining that with Phase Contrast Microscopy one looks at the total fibers through a light microscope after direct preparation of the filter with acetone triacetin. The process involves counting fibers greater than 5 microns in length with width ratios of 3 to 1 within a given field or location on the piece of filter. (Tr. pp. 1855-1856). The method referred to as the NIOSH 7400 uses a transmission electron microscope to determine what percentage of the fibers are asbestos by examining the carbon image transposed onto a copper grid coated with a thin layer of carbon. Due to the high resolution power of the electron microscope, the scientist can definitively identify each fiber by its physical characteristics. (Tr. pp. 1857-1858)$TMr. Boelter then explained the various tests he performed on four different WEIL-McLAIN boilers; some in an isolation chamber and others on site. Three of them were operational and one was composed of new boiler components for construction. Three were taken to the$=P1298*40 isolation chamber intact for testing, while the fourth was tested on location where it was dismantled. (1861-1863)$THe explained that under OSHA rules, there are two ways of evaluating exposures. One is the health-based method which is the eight hour time-weighted average or concentration over the course of a day. The other involves non-recurring intermittent activity referred to as STEL or short-term excursion limit. (Tr. pp. 1864-1865)$TWhen testing the MGB small commercial boiler taken from a school in Indiana, he found that removal and replacement of the asbestos rope as a part of routine inspection resulted in a short term excursion level of less than detectable concentrations of asbestos. After testing, he found the asbestos rope to be 80% chrysotile, which he knew to be the type of asbestos normally found in this sort of operation. (Tr. pp. 1867-1869)$THe discovered that even under today's STEL of one fiber per cc, his finding for total fibers, not asbestos, was .062 fibers per cc in an isolation chamber or a hundred times below. (Tr. p. 1869) It was a thousand times below the excursion limit of 10 fibers per cc. (Tr. p. 1870)$TMr. Boelter said chrysotile was the only fiber he $=P1298*41 knew to be used in furnace cement. (Tr. p. 1872) His testing revealed almost no release of asbestos fibers in removing and replacing a bead of furnace cement. In the removal and replacement of asbestos rope (also found to be 50% chrysotile) he found a release of .05 fibers per cc on an 8 hour time-weighted average. This is still below today's permissible exposure limit. (Tr. pp. 1873-1875)$TWhen he performed a test to determine the average release of asbestos fibers during installation of new rope in a new furnace, Mr. Boelter found the total fiber concentration to be .03 fibers per cc on an 8 hour time-weighted average. According to Mr. Boelter, such concentration levels would not require an employer to provide a mask or respirator to workers under either today's standards, or any previous OSHA standards. (Tr. pp. 1875-1877)$TFor rope installation on a large 11 -section boiler using 50% chrysotile rope Mr. Boelter found exposure levels of .05 fibers per cc, or half the currently permissible exposure limit, on an 8 hour time-weighted average. (Tr. p. 1881) When they removed the rope from the large sectional boiler they found exposure limits of between .7 and .8 fibers per cc. (Tr. p. $=P1298*42 1883)$TMr. Boelter then went through the same  process with each of the other two boilers tested, indicating exposure concentrations to be similarly lower than the current allowable limits for each procedure performed. The only procedure which resulted in levels of .1 fibers per cc, or the currently allowable level, was the complete disassembly of the Model 86 boiler with handling of all asbestos parts. (Tr. pp. 1883-1890)$TWhen they disassembled a residential boiler on site rather than in the isolation chamber, they found exposure levels of .09 fibers per cc, but with no asbestos fibers detected. (Tr. pp. 1893-1894)$TIn each instance, the testing of asbestos components revealed varying percentages of chrysotile asbestos only, with no contamination by other forms of asbestos.$TMr. Boelter then explained, with the aid of a chart, how the various exposure levels detected in his tests compared with the previously permissible exposure limits since 1971 (Tr. 1899-1902) He also extrapolated the life-time dose exposure for people working in the industry, estimating 20 installations per year for 30 years to be .0095 fiber years for the installation process only. According to Mr. Boelter, this $=P1298*43 level was 10 times lower than what the average person receives from the ambient air. For the removal operation he found a level of .000085 fiber years or substantially lower still than ambient air exposure. (Tr. pp. 1902-1903)$TMr. Boelter's ultimate conclusions from testing were: 1) that where asbestos components were used in WEIL-McLAIN boiler application, they were always chrysotile; 2) the actual handling of asbestos components in the construction, repair, or maintenance of a boiler is a small percentage of the overall time involved; 3) the concentrations measured in an unventilated chamber were low even by today's standards and when coupled with ventilation models, the concentrations were even lower, to the point of being below quantitative measurement, and that the dose is insignificant. (Tr. p. 1908)$THis ultimate opinion was that working with or around asbestos component parts of WEIL-McLAIN boilers did not create a risk of asbestos-related disease. (Tr. d. 1909)$TOn cross-examination Mr. Boelter acknowledged having previously said that NIOSH, the EPA and OSHA "have concluded that there is no known threshold of exposure to asbestos below which there is no health risk."(Tr. p. $=P1298*44 1926)$THe also agreed that all but one of the WEIL-McLAIN boilers tested was built after 1974; the only exception being the Model 57 boiler which was constructed around 1952. (Tr. p. 1930) None of them contained air cell insulation and, to his knowledge, none involved the use of what would have started as dry insulating cement. It was Mr. Boelter's understanding that the only cement used by WEIL-McLAIN was furnace cement or putty, but he did not know whether that came dry or wet. (Tr. pp. 1932-1933)$TMr. Boelter was questioned extensively about the various models and numbers of boilers manufactured by the Defendant in relation to the four he tested. He was also asked about the fact that some of the boilers for which he tested component parts containing asbestos were supposedly manufactured after a date the Defendants had previously said they stopped using asbestos components. (Tr. 1938-1941)$TDefendant's final witness was Dr. Robert Sawyer, a consultant in occupational and preventive medicine. Dr. Sawyer was Defendant's MIT expert, having graduated from there with degrees in general physics and engineering. He then obtained his medical Degree from what is now known as Case Western Reserve, $=P1298* 45 with a residency at Yale University in epidemiology and public health. The nature of his current practice is in preventive medicine where he works as an independent consultant in occupational medicine. (Tr. Vol. XII, Dr. Robert Sawyer, pp. 1961-1965, 1969, 1983)$TJust as Plaintiff's asbestos experts, Dr. Sawyer had a prestigious history, having worked directly with the same Dr. Selikoff so frequently cited in most asbestos-related medical studies. He was Defendant's "generic expert".$TDr. Sawyer began by explaining the science of epidemiology and the relationship of case studies to epidemiological studies. (Tr. Vol. XIII, Dr. Robert Sawyer, pp. 2012-2014) He discussed what he considered to be the problems with the linear dose model used by OSHA in drafting their regulations relating to asbestos. According to Dr. Sawyer, the model ignored what he called "threshold effect" or the lowest exposure levels at which one would expect to find causation of a particular disease. (Tr. Vol. XIII, Sawyer, pp. 2016-2017)$TAs a result of this, risk models are developed which are extremely conservative in relation to what is known in the real world. As an example, he described how the EPA risk model $=P1298*46 for predicting lung cancer by asbestos versus asbestos exposure was, in one study, ten times greater than what was found in real life. The result, he said, was an overstatement of the risk by drawing a straight line to the zero intersect on the linear model.(Tr. Vol. XIII, pp. 2018-2019)$TAccording to Dr. Sawyer, one reason this does not work is because there are various protective responses by the human body at a low dose level that would not come into play at higher dosages. (Tr. p. 2019)$THe disagreed with the statement previously made by Dr. Marks that there was no such thing as an idiopathic mesothelioma for two reasons. First, because a number of studies he characterized as "authoritative research", state that a significant portion of mesotheliomas are idiopathic, and second, because such statement defies what is known about cancer in general. "No matter what the cancer, there's always that - the one that we can't find a Good cause for." (Tr. pp. 2021-20221)$TDr. Sawyer indicated he was familiar with the design and construction of WEIL-McLAIN boilers as well as Fred Boelter's reports regarding their asbestos-containing components. He noted that it was important to know how the components$=P1298*47 were utilized and how a person would be likely to encounter them. (Tr. pp. 2023-2024) When explaining "dose relationship response, Dr. Sawyer said it was the relationship of increasing dose to increasing risk, with the understanding that there is a threshold of exposure which may be absorbed before there is any measurable effect or risk. (Tr. 2025-2026) He agreed that we are all exposed to asbestos daily, but not at a level which, even accumulated over a life-time, is sufficient to affect us.(Tr. p.2027)$TIt was Dr. Sawyer's opinion there is a dose relationship response between asbestos exposure and disease. He said there were a number of studies indicating a relationship between increased dosage and increased risk of disease; both type and severity. Conversely, there is no epidemiological evidence that exposures below current permissible exposure limits posed any risk of developing mesothelioma. (Tr. pp. 2032-2033)$THe also agreed that on the basis of the current permissible exposure limit of .1 fibers per cc, assuming a fiber year total of 4.0 fiber years at the end of 40 years, there is no current epidemiological evidence that people expose d to that level throughout their work-life$=P1298*48 are at any risk of developing mesothelioma. (Tr. p. 2037) Dr. Sawyer said the fiber type was significant in determining any increased risk of developing mesothelioma. He explained that asbestosis and lung cancer are diseases of the lung while mesothelioma is a disease in the cells that line the lung and abdominal cavity, so two different cell systems are involved. (Tr. pp. 2038-2039)$TIn his opinion crocidolite, or blue asbestos, was considered the most dangerous, with risk at levels as low as a total accumulated dose of one or two fiber years. For amosite, Dr. Sawyer estimated a risk of developing mesothelioma in the range of five fiber years. It was his opinion that post-processed chrysotile posed little, if any, risk whatsoever, while either preprocessed chrysotile or chrysotile ore could be measured in hundreds to a thousand fiber years. (Tr. p. 2040)$TContrary to the assertion of Dr. Lemen that pure chrysotile did not exist, Dr. Sawyer testified there have been numerous air samples taken of products containing post-processed chrysotile over a 50 year period and no one has ever found tremolite fibers in any of the samples. (Tr. pp. 2042-2043) In his opinion, there is a substantial$=P1298*49 difference between pure chrysotile and chrysotile which contains an amphibole contaminant, because he believes the contaminant is what causes the mesothelioma.$TDefendant's counsel then had Dr. Sawyer go through each of the highend exposure levels for each of the tests run on WEIL-McLAIN boilers and their asbestos-containing components and give his opinion that in each instance the total "fiber burden", or exposure over an assumed 40 year period, was not sufficient to cause mesothelioma. (Tr. pp. 2045-2051)$TIt was his opinion there is virtually no risk of post-processing chrysotile causing mesothelioma. (Tr. pp.2051-2052) This was based on the fact that studies since 1960 to the present have reinforced the belief that post-processed chrysotile cannot be associated with any significant mesothelioma risk. (Tr. p. 2052) Dr. Sawyer then went through a series of studies which either came to the same conclusion or were found to include contaminated chrysotile. These included, among others, a 1997 study of 11,000 chrysotile miners, a study of three factories in the US and a 2002 study of 1,445 cases of mesothelioma. All concluded that it was the tremolite or amosite in the chrysotile ore $=P1298*50 or processed chrysotile which cause mesothelioma, not the chrysotile. (Tr. pp. 2052-2070)$TDr. Sawyer's ultimate opinion was that Mr. NOLAN's mesothelioma could not have been caused by the asbestos components in the WEIL-McLAIN boilers on the basis of dose and fiber type. (Tr. p. 2071)$TOn cross-examination Dr. Sawyer was asked to describe his understanding of which asbestos-containing components of WEIL-McLAIN boilers Mr. Boelter tested. To Dr. Sawyer's knowledge, he did not test air-cell or the mixing of dry cement and he could not recall whether mill board had been tested. (Tr. pp. 2081-2084) He also disagreed with various asbestos fiber levels to which Mr. Ewing has testified for different types of activities involving asbestos rope, insulation and dry cement. He considered Mr. Ewing's levels to be unexplainably high. (Tr. pp. 2086-2088)$TCiting his own studies, the highest levels he could achieve for disturbing highly friable, thick insulation was just under one-half that reported by Ewing. He also disputed the levels Ewing reported for mixing dry cement. Contrary to the reported levels of 24 to 580  fibers per cc, he found that when mixing large bags of raw fiber, not the small bags$=P1298*51 used by Defendant, the most he could get was "maybe 40 fibers per cc". (Tr. pp. 2087-2089)$TPlaintiff's counsel asked whether Dr. Sawyer believed Mr. Boelter's boiler studies were "slanted" since he, in counsel's words, only tested the items likely to give off small amounts of fibers and did not test those items with a greater potential for higher fiber release. (Tr. pp. 2089-2091) Dr. Sawyer said he believed Mr. Boelter tested those components typically involved in normal maintenance. (Tr. p. 2091)$TDr. Sawyer disagreed with counsel regarding the fiber type found in Defendant's components. Although one of WEIL-McLAIN's interrogatory answers was that they did not know what the fiber type was of the asbestos in their products, Dr. Sawyer said he concluded it was chrysotile based on three factors: 1) the limited information available from the Boelter studies; 2) being informed by WEIL-McLAIN representatives that, to the best of their knowledge it was chrysotile; and 3) the design intent of Defendant's boilers would indicate only chrysotile in the rope due to the temperatures involved. (Tr. p. 2092)$TDr. Sawyer agreed that he would need to know the actual fiber type used and dosage in order$=P1298*52 to form his opinion that the chrysotile asbestos in Defendant's component parts was not the cause of Mr. NOLAN's death. He also agreed that Mr. Nolan died of mesothelioma and that it was occupationally related. (Tr. pp. 2094-2095)$TPlaintiffs counsel then took Dr. Sawyer through a list of respected and recognized experts in the fields of asbestos medicine, disease and/or research who all believe that chrysotile asbestos fibers can cause mesothelioma. (Tr. pp.2097-2111) He also agreed that NIOSH, EPA, OSHA, the World Health Organization and a number of other national and international organizations are all of the opinion that chrysotile asbestos can cause mesothelioma. (Tr. pp. 2111-2114) He agreed there is no governmental agency in the world that has concluded that chrysotile asbestos does not cause mesothelioma. (Tr. p.2114)$TDr. Sawyer acknowledged that chrysotile can cause asbestosis and lung cancer, and, if given in massive doses, it can cause mesothelioma in laboratory animals. (Tr. p. 2115) He also agreed that 95% of the asbestos used in this country was chrysotile. (Tr. p. 2116)$TIn spite of having previously said that "$(t$)he worst mistake is assuming you are dealing with a certain$=P1298*53 fiber type", Dr. Sawyer admitted that, at best, he has a 'pretty good idea' that the type of asbestos used in Defendant's products was chrysotile. (Tr. pp. 2118-2119)$THe acknowledged having previously testified that the epidemiologic information generated in the 30 years before 1969 showed industry that asbestos was absolutely related to adverse health effects which included asbestosis and certain malignancies. (Tr. p. 2124) He has also previously testified it was impossible to confidently estimate the exact degree of risk associated with low level exposure to asbestos, and, at least in 1987, he believed that one could not exonerate chrysotile as a cause of mesothelioma. (Tr.p.2126)$TDr. Sawyer agreed that scientists do not know the exact level at which exposure to asbestos becomes hazardous and at five fibers per cc PEL, people still die from mesothelioma. (Tr. p.2130) He admitted having previously said that even one asbestos fiber can cause cancer. (Tr. p. 2132)$TOn re-direct examination Dr. Sawyer sought to clarify statements he made in the 1980's  by indicating that since that time scientific knowledge regarding chrysotile asbestos and its ability to cause mesothelioma has changed$=P1298*54 substantially. (Tr. p. 2146) He also attempted to explain the previous statement regarding the theoretical possibility of one asbestos fiber causing cancer. Dr. Sawyer indicated it is theoretically possible, however, the body would probably cause the cell to kill itself by enzyme release before becoming malignant. (Tr. pp. 2155-2156) In addition, the fact that asbestos fibers are found in the ambient air without everyone getting cancer also tends to discredit the idea that one fiber could cause cancer. (Tr. p. 2156)$TDr. Sawyer then listed a number of experts in the field who agreed with his opinion that post-processing chrysotile does not cause mesothelioma. (Tr. pp. 2158-2159)$TDuring an offer of proof outside the presence of the jury Defendant's counsel elicited testimony that Mr. NOLAN, as a pipe fitter, was exposed to thermal insulation, adhesives, and pipe covering. It was Dr. Sawyer's opinion that decedent's mesothelioma was caused by amphibole fibers contained in thermal systems insulation with which he had contact. (Tr. pp. 2167-2168)$TDefendants then sought to introduce a copy of the 1988 asbestosis complaint from federal court as well as portions of decedent's deposition where$=P1298*55 he described different work sites and the nature of the asbestos-containing products to which he was exposed at each. It was Defendant's contention that the failure to sue this defendant in the earlier case, and the failure to name this defendant as one of products to which he was exposed constituted tacit admissions by silence, or inconsistent statements.$TAfter lengthy arguments the court agreed to read a statement to the jury indicating the existence of the 1988 lawsuit for asbestosis and the fact that the Defendant was not named as a party in that litigation. (Tr. pp. 2169-2190)$TThat concluded the evidence in the case. There was substantial discussion and argument regarding exhibits and jury instructions which will be addressed as necessary to resolve issues raised in Defendant's Post-trial Motion. The substance of closing arguments and jury instructions will also be addressed where necessary to resolve post-trial motion issues.$TThe jury then deliberated for approximately six hours before returning a verdict for the Plaintiff in the amount of $ 2,368,000.$T$UISSUES$O$TDefendant asserted eight claims of error entitling them to either judgment notwithstanding the verdict or a new trial: $=P1298*56 $=S$%$?$%I. That WEIL MCLAIN was entitled to a judgment notwithstanding the verdict since Plaintiff failed to demonstrate as a matter of law that Mr. Nolan's exposure to WEIL-McLAIN products substantially contributed to the development of his disease and based on the jury's failure to find this as a matter of fact.$%$?$%II. That the court erred in admitting evidence of OSHA citations issued to WEIL-McLAIN, even for the limited purpose of notice, and that Plaintiff's counsel improperly argued the OSHA citations as evidence of wrong-doing in spite of the limiting instruction given by the court.$%$?$%III. That the court's refusal to instruct the jury on substantial contributing factor and/or submit a special interrogatory on the issue was prejudicial error entitling the Defendant to a new trial.$%$?$%IV. That the court's refusal to permit the Defendant to introduce evidence of other exposures of the decedent to asbestos-containing products was error.$%$?$%V. That the court erred by refusing to give WEIL -McLAIN's proposed jury instructions and verdict forms relating to contributory negligence by the decedent.$%$?$%VI. That the court erred by precluding evidence of the decedent's discovery deposition testimony$=P1298*57 and written discovery responses from his 1988 asbestos lawsuit.$%$?$%VII. That the court erred in its rulings on various motions, objections, exhibits and instructions which, either individually or cumulatively, entitle the Defendant to a new trial.$%$?$%VIII. That the court erred in denying WEIL-McLAIN's Motion for Partial Satisfaction of Judgment based on settlements received by the Plaintiff in the 1988 lawsuit.$=I$T$UANALYSIS$O$TI. Judgment Notwithstanding the Verdict$TDefendant's first issue is perhaps one of the easiest to resolve. Both counsel referenced the standard for entering judgments n.o.v. cited in $=<$=T3*2 $=L00554000037000494*000494 $=L01525000229000504*000504 $IPedrick v$N. $IPeoria and Eastern Railroad Company$N, 37 Ill.2d 494, 229 N.E.2d 504 (1967).$=> Such judgments are appropriate,$=S$%$?$%"in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." $=<$=T3*2 $=L00554000037000494*000510 $=L01525000229000504*000513 37 Ill.2d, 510, 229 N.E.2d, 513.$=>$=I$TAs was pointed out in $=<$=T3*2 $=L00548000351000398*000398 $=L01525000813001030*001030 $IGarley v$N. $IColumbia LaGrange Memorial Hospital$N, 351 Ill.App.3d 398, 813 N.E.2d 1030$=>$=P1298*58 (1 st Dist. 2004),$=S$%$?$%"$(i$)n ruling on a motion for judgment notwithstanding the verdict, a court does not weigh the evidence, nor is it concerned with the credibility of witnesses; rather, it may only consider the evidence and any inferences therefrom, in the light most favorable to the party resisting the motion. $(citations omitted$) $=<$=T3*2 $=L00548000351000398*000404 $=L01525000813001030*001036 351 Ill.App.3d, 404, 813 N.E.2d, 1036.$=>$=I$TDefendant contends none of three expert witnesses offered the opinion that decedent's exposure to WEIL-McLAIN products substantially contributed to his mesothelioma. Dr. Marks was asked "whether each and every exposure to asbestos that Mr. Nolan had was a substantial contributing factor in causing his malignant mesothelioma". He said that every exposure to asbestos is important in the ultimate development of a tumor. (Tr. Vol. VI, pp. 1085-1086) He had already testified that decedent's breathing asbestos was a significant contributing factor in the development of his mesothelioma. (Tr. Vol. VI, p. 1085)$TLater, he was specifically asked to assume certain exposures to WEIL-McLAIN products and was then asked whether these exposures would have been a substantial cause of decedent's$=P1298*59 malignant mesothelioma and death. Assuming the asbestos fibers came from the three specific forms of products listed in the hypothetical question, Dr. Marks' ultimate opinion was that they did, in fact, substantially contribute to decedent's mesothelioma and death. (Tr. pp. 1095-10971$TMr. Ewing, the industrial hygienist, testified that decedent would have experienced 'significant' exposures to asbestos while performing the various functions around boilers described by decedent, his son and others. (Tr. Vol. IV, William Ewing, pp. 792-796) Randy Nolan testified to performing the same functions, with his father, on WEIL-McLAIN boilers containing the same asbestos components referenced in the questions put to Mr. Ewing. (Tr. Vol. V, Randy Nolan, pp. 899-938)$TMr. Ewing also testified that t hese increased exposures were known to increase the risks of contracting an asbestos-related disease. (Tr. Vol. IV, p. 797)$TEntering judgment notwithstanding the verdict is an extreme remedy based, reasonably so, on a very difficult standard. In $=<$=T3*2 $=L04538002004546825*546825 $=L01525000820000037*000037 $IVelarde v. Illinois Central R.R. Co$N., 2004 WL 2546825, 820 N.E.2d 37 (1st Dist. 2004),$=> the appellate court noted$=P1298*60 the trial court did not have the option of re-weighing the evidence or deciding the jury could have drawn different inferences or granting judgment n.o.v. because the court felt another result was appropriate.$=S$%$?$%"The court has no right to enter a $(judgment n.o.v.$) if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome." $=<$=T3*2 $=L04538002004546825*546825 $=L01525000820000037*000052 820 N.E.2d, 52$=>$=I$THere, there was sufficient evidence presented by Plaintiff to allow a jury to decide whether the asbestos-containing components in Defendant's boilers were a substantial contributing factor to his mesothelioma. Accordingly, judgment notwithstanding the verdict is not appropriate.$TPlaintiff also correctly points out that Defendants' claims of error regarding a proposed jury instruction and special interrogatory, even if correct, would not entitle the Defendant to judgment n.o.v., but to a new trial at best.$=S$%$?$%"A new trial will be granted based on a trial court's refusal to give a tendered instruction$=P1298*61 only when the refusal amounts to a serious prejudice to a party's right to a fair trial. $=<$=T3*2 $=L00548000303000600*000607 $=L01525000708000533*000538 $ILinn$N v. $IDamilano$N, 303 Ill.App.3d 600, 607, 708 N.E.2d 533, 538$=> (4th Dist, 1999)$=I$TFor all the above reasons, Defendants motion for judgment notwithstanding the verdict is denied.$TII. The OSHA Citation as Evidence of Notice$TDefendant contends it was error to allow evidence of the OSHA citation proceedings in early 1974 for any purpose. According to the testimony at trial, WEIL-McLAIN did not know about the hazards of asbestos until 1974 when OSHA cited them for exceeding the allowable fiber levels in an area where asbestos rope was being cut.$TA significant part of Plaintiffs case and their claim for damages arose not only from the allegation that decedent contracted mesothelioma from Defendant's asbestos-containing components, but that WEIL-McLAIN knew or should have known about the dangers from asbestos at the time they shipped the various component parts with their boilers.$TAfter substantial pre-trial discussion and argument, the court permitted the use of the OSHA citation solely to establish notice to the Defendant. Both sides referenced it $=P1298*62 in their opening statements; Plaintiff to indicate how much earlier the hazards of asbestos were, or should have been known in the industry, and Defendant to indicate that immediately upon receiving notice, they took remedial action.$TIn $=<$=T3*2 $=L00548000242000781*000781 $=L01525000610000683*000683 $IKochan v. Owens Corning Fiberglass Corp$N. 242 Ill.App.3d 781, 610 N.E.2d 683 (5th Dist. 1993)$=> the court, in addressing the issue of notice' under substantially similar facts held:$=S$%$?$%"There is another exception to the hearsay rule that is applicable to the issue before this court, and that exception is notice.... A writing that is offered to pro ve that the recipient had notice of the information contained therein rather than to prove the truth of the matter asserted is admissible." $=<$=T3*2 $=L00548000242000781*000806 $=L01525000610000683*000699 242 Ill.App.3d, 806, 610 N.E.2d, 699.$=>$=I$TJust as in $IKochan$N, here the Defendants sought and received a cautionary instruction to the jury that evidence of the OSHA citation was admitted for the limited purpose of 'notice' to the Defendants. In addition, just as in $IKochan$N, Defendants were permitted to present their own "state of the art' or 'state of knowledge' experts to rebut Plaintiff's$=P1298*63 claims. It was not error to permit the admission of the OSHA citation to establish notice on the part of the Defendants.$TDefendant cites $=<$=T3*2 $=L00547000041000095*000095 $=L01525000190000476*000476 $IBulleri v. Chicago Transit Authority$N, 41 Ill.App.2d 95, 190 N.E.2d 476 (1st Dist. 1963)$=> for the proposition that a limiting instruction alone may not be sufficient to overcome the prejudice caused by otherwise stricken testimony. This was not stricken testimony. The limiting instruction was given to impress upon the jurors the fact that the evidence was being admitted only to establish when Defendants were put on notice about the hazards of asbestos.$TIn addition, in $IBulleri$N, Plaintiff's counsel made clearly prejudicial references to an incorrect burden of proof, as well as religious and political affiliations. Defendant's objections were incorrectly overruled by the court. Here, there was no objection and Defendant argues he should not have had to make one.$TDefendant cited $=<$=T3*2 $=L00548000306000115*000115 $=L01525000713000686*000686 $ILos Amigos Supermarket Inc. v. Metropolitan Bank and Trust Co$N., 306 Ill.App.3d 115, 713 N.E.2d 686 (1st Dist. 1999);$=> $=<$=T3*2 $=L00548000297000422*000422 $=L01525000697000749*000749 $ICancio v. White$N, 297 Ill.App.3d 422, 697 N.E.2d 749 (1st Dist. 1998);$=>$=P1298*64 $=<$=T3*2 $=L00548000037000710*000710 $=L01525000346000448*000448 $ICecil v. Gibson$N, 37 Ill.App.3d 710, 346 N.E.2d 448 (3rd Dist. 1976);$=> and $=<$=T3*2 $=L00547000114000241*000241 $=L01525000252000406*000406 $IPaulsen v. Gateway Transportation$N Co. 114 Ill.App.2d 241, 252 N.E.2d 406 (2nd Dist. 1969)$=> when arguing post-trial motions, for the proposition that Plaintiffs counsel's reference to the OSHA citation in closing argument was so prejudicial that Defendant was denied a fair trial.$TThe court is of the opinion that Plaintiff's counsel did make inappropriate use of and reference to the OSHA citation in his closing arguments. The question, however, is whether, absent an objection, the reference alone was so prejudicial that it warrants a new trial.$TThe $IPaulsen$N case sets forth the general rule regarding improper arguments of counsel:$=S$%$?$%"Certainly it is the duty of counsel to promptly object to improper conduct or argument in order that both parties receive a fair trial of the legal issues present. It is the duty of the trial court to control the proceedings to the extent necessary to insure this result. In a proper case the court has the duty to act promptly to stop misconduct, If the argument of counsel is seriously prejudicial, $=P1298*65 the court on its own motion should stop the argument and direct the jury not to consider it." $=<$=T3*2 $=L00547000114000241*000246 $=L01525000252000406*000409 114 Ill.App.2d 241, 246-7, 252 N.E.2d 406, 409.$=>$=I$TThe court went on to say that where arguments or conduct are so prejudicial as to affect the ability of the parties to receive a fair trial an d cause a deterioration of the judicial process, appellate courts can consider them as error without objection.$TIn $IPaulsen$N, the plaintiff's counsel engaged in a lengthy and vigorous excoriation of defense counsel personally. The attacks were not directed at any relevant issue and were found to be intended to "belittle, impugn and ridicule" him before the jury.$TIn $ICecil$N defense counsel also engaged in a personal attack on opposing counsel referring to him, among other things as a "slick attorney from Chicago", "slick hired-hand" and claimed he was "not worthy of the jury's trust". The prejudicial arguments were directed primarily at counsel, and the court in $ICecil$N cited $IPaulsen$N for the same reasons set out above.$TIn $=<$=T3*2 $=L00548000297000422*000422 $=L01525000697000749*000749 $ICancio v. White$N, 297 Ill.App.3d 422,$=> after assuring the court he would not do so, defense$=P1298*66 counsel then argued an unsubstantiated and improper insinuation regarding an unethical connection between plaintiff's counsel and a testifying physician. The appellate court found that "$(g$)enerally, improper argument or misconduct of counsel can be a sufficient basis to require a new trial", citing, $=<$=T3*2 $=L00548000196000928*000928 $=L01525000554000505*000505 $IMykytiuk v. Stamm$N, 196 Ill.App.3d 928, 554 N.E.2d 505 (1st Dist. 1990),$=> a case dealing with an improper attempt to introduce evidence, which had nothing to do with closing arguments.$TThe $ILos Amigos$N case involved improper cross-examination based upon a new defense never asserted before trial and an attempt to create an inference never supported by evidence. This was followed up by a reference in closing argument that there was 'no question' the unsupported inference had actually occurred. The appellate court noted how counsel may draw all reasonable inferences from the evidence during closing argument, by cannot misrepresent, argue facts not in evidence, or create evidence. They also stated that even though opposing counsel had not objected to the comments during closing arguments,$=S$%$?$%"...waiver generally does not result where the comments$=P1298*67 were so inflammatory or prejudicial as to deny a party a fair trial." $=<$=T3*2 $=L00548000306000115*000129 $=L01525000713000686*000696 306 Ill.App.3d 115, 129, 713 N.E.2d 686, 696.$=>$=I$%$?$%The court found that since it was a close case, based primarily upon the credibility of witnesses, the unsupported allegation could have had a substantial impact on the witness' credibility and was therefore substantial error.$THere, the comments to which Defendants complain are several. Early in Plaintiff's closing argument counsel made the comment that:$=S$%$?$%"Now Weil-McLain claims that they could not and did not know about asbestos being deadly until 1974 when OSHA came in to tell them that they were killing their own workers." (Tr. Vol. XIV, p. 2342)$=I$%$?$%Toward the end of Plaintiff's closing argument he stated;$=S$%$?$%"They claim to have put a caution on asbestos ten years later in 1974 after OSHA found in their own workers, workers doing the same work, exact same work that Gerry did in cutting rope and dumping cement." (Tr. Vol. XIV, p. 2367)$=I$%$?$%Again in Plaintiff's rebuttal argument he commented:$=S$%$?$%"I believe we showed you the documents and it certainly is in evidence that they were told in March by OSHA, they - OSHA $=P1298*68 came out in March and showed them that they were out of control." (Tr. Vol. XIV, p. 2405)$=I$TDefendant contends these comments were so egregious and prejudicial to the Defen dant that they were deprived a fair trial. Even assuming there was no waiver, taken as a whole, the court does not believe these statements rise to the level of those found in the cases cited, or similar cases addressing prejudicial closing arguments.$TAfter several weeks of trial, the issue of notice had been clearly established. There was no question from the evidence, that at least by March-April of 1974 Defendants were put on notice with regard to the hazards of asbestos; which was the only reason for which the OSHA citation was permitted.$TThere had already been substantial evidence regarding the hazards of asbestos and the potentially lethal diseases it causes. It was also clear from the evidence that in the over 80 year history of WEIL-McLAIN, considering all of the various situations in which employees may have been exposed to asbestos and asbestos-containing components, there had never been a case of asbestos-related disease in the plant. Plaintiffs sought to make something of a recent claim by a disgruntled$=P1298*69 ex-employee which Defendants had adequately countered. Other than that, no claim had been shown to have arisen from WEIL-McLAIN regarding an asbestos-related disease in all its years of operation.$TThe statement by Plaintiffs counsel, although inappropriate and unsupported by the evidence was essentially hyperbole. Considering all the other issues in the case and the evidence before the jury at that time, it would be difficult to imagine that the comments set out above, were sufficient to change the minds of jurors, or even substantially affect their decision-making.$TThese are not the sort of personal attacks referenced in other cases. The statements here are not substantial misstatements of critical evidence or fabrications of evidence particularly relevant to the issues before the jury. They were comments about the Defendant corporation, which although untrue, were not critical to the case. Defendants were not on trial because of an employee claim for asbestos-related disease. The evidence before the jury was that they had never had such a claim and according to their experts, the nature of their products was not likely to cause such a claim to arise.$TThe court does not find sufficient$=P1298*70 prejudice to the Defendant to warrant a new trial based upon the inappropriate comments of Plaintiffs counsel in closing argument regarding the OSHA notice.$TIII. The Court's Refusal to Instruct the Jury or Allow a$TSpecial Interrogatory on Substantial Contributing Factor$TDefendant contends it was error for the court to refuse a non-IPI instruction setting forth the "substantial contributing factor" standard referenced in $=<$=T3*2 $=L00554000151000343*000343 $=L01525000603000449*000449 $IThacker v. UNR Industries, Inc$N., 151 Ill.2d 343, 603 N.E.2d 449 (1992)$=> because it is a necessary component of a plaintiff's burden of proof in asbestos litigation. Citing no Illinois case as precedent for their position, Defendants contend the jury had to make factual determinations relating to "dose" and exposure" peculiar to asbestos cases which made the standard "proximate cause" instruction inapplicable and confusing.$TPlaintiff contends they had the election to proceed under either the stricter "but for" or proximate cause standard of causation or the "substantial contributing factor" standard; either of which are applied to determine cause in fact. Having chosen the stricter standard, they maintain Defendants cannot$=P1298*71 complain that they were not permitted to instruct the jury on a less strict standard, which is n ot their election to make.$TDefendant replies that Plaintiff may well choose the theory of recovery under which she proceeds, but there is no "election" with regard to which standard of causation goes to the jury.$TThe non-IPI instruction proposed by Defendants read as follows: "The Plaintiff must prove that exposure to Weil-McLain's products was a substantial factor in causing the injury claimed". The special interrogatory read: "Do you find that Mr. Nolan's exposure to Weil-McLain products was a substantial contributing factor in the development of his injury"$TThere is no disagreement that parties are entitled to have the jury instructed on their theories of the case as well as the issues presented. See $=<$=T3*2 $=L00548000276001023*001023 $=L01525000659000979*000979 $IWilkerson v. Pittsburgh Corning Corp$N., 276 Ill.App.3d 1023, 659 N.E.2d 979 (4th Dist. 1996).$=> Citing $=<$=T3*2 $=L00548000169001018*001018 $=L01525000524000615*000615 $IChakos v. Illinois State Toll Highway Authority$N, 169 Ill.App.3d 1018, 524 N.E.2d 615 (1st Dist. 1988),$=> the court said, however, that instructions, when taken as a whole should be clear, not misleading, $=P1298*72 and should fairly and accurately state the law.$TIn $IWilkerson$N the defendants' tendered non-IPI instructions regarding proximate cause based on frequency, regularity, and proximity of asbestos exposure were found to have been properly refused by the trial court. Although more verbose than the instruction submitted by WEIL-McLAIN, those in $IWilkerson$N also sought to require the jury to find the defendant's product was a 'substantial factor' in causing the plaintiff's injury.$TThe court found the practice of 'lifting' sentences out of other opinions to form non-IPI instructions was disfavored. Instead, they affirmed the trial court's ailing which gave IPI 15.01, the standard "proximate cause" instruction.$TDefendant argues that $=<$=T3*2 $=L00554000151000343*000343 $=L01525000603000449*000449 Thacker v. $IUNR Industries$N, 151 Ill.2d 343, 603 N.E.2d 449$=> requires a plaintiff to prove defendant's asbestos was a substantial contributing factor' in causing the illness for which plaintiff seeks recovery. That is not correct. The necessary element of proof in an asbestos case as in any other negligence or strict liability action is that the defendant's asbestos was a 'cause' of defendant's illness.$TAs the Supreme$=P1298*73 Court stated in $IThacker$N, "causation requires proof of both 'cause in fact' and 'legal cause'. When proving 'cause in fact' courts look to either the more traditional 'but for' test, i.e., 'but for' the defendants action, condition or conduct, plaintiff would not have been injured; or the 'substantial factor' test adopted in the Restatement (Second) of Torts Section 431. Under the 'substantial factor' analysis, if defendants conduct or condition was a 'material element and substantial factor' in bringing about plaintiff's injury, then plaintiff has established 'cause in fact'.$TContrary to Plaintiff's assertion, it is not a matter of election. In $=<$=T3*2 $=L00554000199000063*000063 $=L01525000767000314*000314 $IDonaldson v. CIPS, Co$N., 199 Ill.2d 63, 767 N.E.2d 314 (2002)$=> the court discussed Illinois law on causation.$=S$%$?$%"...our case law clearly states that in negligence actions, the plaintiff must present evidence of proximate causation, which includes both cause in fact and legal cause, $(citing $IThacker$) A$N plaintiff may show "cause in fact" under the substantial factor test, showing that the defendant's conduct was a material element and subs tantial factor in bringing about the alleged injury, $=P1298*74 $(citation omitted$) "Legal cause" examines the foreseeability of injury - whether the injury is 'of a type which a reasonable man would see as a likely result of his conduct.'" $=<$=T3*2 $=L00554000199000063*000090 $=L01525000767000314*000331 199 Ill.2d,90, 767 N.E.2d, 331.$=>$=I$TThey point out that $IThacker$N may require proof of 'frequency, regularity and proximity', but that does not change the burden of proof. Plaintiff still needs to show defendant's conduct or condition proximately caused the claimed injury. Plaintiff confuses 'burden of production' with 'burden of proof' $I.$=<$=T3*2 $=L00548000313000230*000230 $=L01525000729000883*000883 Johnson v. Owens Corning Fiberglas Corp$N., 313 Ill.App.3d 230, 729 N.E.2d 883 (3rd Dist. 2000)$=> noted how they agreed with the Fourth District in $=<$=T3*3 $=L00548000304000356*000356 $=L01525000710000528*000528 $=L01525000710528534*528534 $ISpain v. Owens Corning Fiberglass Corp$N., 304 Ill.App.3d 356, 710 N.E.2d 528 (4th Dist. 1999)$=> that "grafting the frequency, regularity, and proximity test onto jury instructions is likely to confuse, rather than clarify, the concept of proximate cause." $=<$=T3*2 $=L00548000313000230*000237 $=L01525000729000883*000883 313 Ill.App.3d, 230, 237.$=>$TThe legal issue that goes to the jury is whether Defendant's asbestos-containing$=P1298*75 products 'proximately caused' Plaintiffs mesothelioma. In order to get past a directed verdict, Plaintiff must show Defendant's products were a substantial contributing factor toward the formation of Plaintiff's mesothelioma or, but for Plaintiff's exposures to their product, Plaintiff would not have been likely to contract mesothelioma. In $=<$=T3*1 $=L04538002005156540*156540 $IRogers v. Reagan$N, 2005 WL 156540 (1st Dist. 2005)$=> the court pointed out how proximate cause, although normally a question of fact, may be ruled upon as a matter of law "where the facts alleged do not sufficiently establish both cause in fact and legal cause." In other words, and as in stated in $IThacker$N, these are not the burdens of proof, but are the tests, which a plaintiff must meet in order to establish their burden of proof for proximate cause'. Even the $ILohrmann$N case cited by Defendants as authority for their position merely states that:$=S$%$?$%"Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment under such a theory would depend upon the frequency of the use of the product, and the regularity or extent of the plaintiffs employment in proximity thereto." $=<$=T3*1 $=L00440000782001156*001156 $ILohrmann v. Pittsburgh Corning Corp$N. 782 F.2d 1156 (4th Cir. 1986)$=>$=P1298*76 $=I$%$?$%Thereby indicating the factual circumstances a Plaintiff must establish in order to show proximate cause.$TDefendants sought to submit an instruction on Plaintiffs burden of production, utilizing the phrase "substantial factor" which would not have been otherwise defined to the jury. This would not only have been confusing, but would not accurately state the law. As such, Defendants had no right to submit their 'substantial factor' instruction.$=S$%$?$%"Upon the request of a party, the trial court must give a special interrogatory so long as it is in proper form. $=<$=T3*2 $=L00548000281000056*000056 $=L01525000666000818*000818 $ISnyder v. Curran Township$N, 281 Ill.App.3d 56, 666 N.E.2d 818 (1996)$=>$=I$TThe criteria set forth in $ISnyder$N are: a) a single question; b) which relates to an ultimate issue of material fact such that a res ponse to the interrogatory would control an inconsistent general verdict; c) in simple, unambiguous and understandable terms; d) which is not repetitive, confusing or misleading. The court is also supposed to look at the wording of the special interrogatory in context with all the other jury instructions.$TThe special interrogatory here asked the jury whether they believed Defendant's$=P1298*77 products were a "substantial contributing factor" to the development of his illness. As it was worded, the interrogatory did not even mirror the instruction. One referred to "substantial factor" the other to "substantial contributing factor", and there was no definition of what constituted a "substantial contributing factor." The inconsistency aside, the proposed interrogatory did not relate to an ultimate issue of material fact. Whether Defendant's products were a "substantial contributing factor" was only one prong of a two-pronged requirement for proximate cause.$TIn the $IJohnson$N case cited above, the language quoted out of $ISpain$N actually related to a special interrogatory seeking to do the same thing Defendants sought here. An answer to Defendant's interrogatory would not have 'related to an ultimate issue of material fact, such that a response to the interrogatory would control an inconsistent general verdict'. Regardless of how they responded, in light of the proximate cause instruction given, as long as they found WEIL-McLAIN's asbestos-containing components to have been 'any cause which, in natural or probable sequence, produced the injury complained of, then they could$=P1298*78 conclude Defendant's products proximately caused decedent's mesothelioma.$TThe relevant instruction went on to tell them "...$(i$)t need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury."$THaving been so instructed, the special interrogatory; especially without defining 'substantial contributing factor', would have been confusing, unclear and not consistent with the other instructions given.$TJust as was argued in $IJohnson$N, although the special interrogatory here did not include the 'frequency, regularity, and proximity' language referenced in the one before the court in $IJohnson$N, Defendant's special interrogatory in this case carried with it the same risk that jurors would become confused and believe Plaintiff needed to prove decedent was exposed to a substantial number of asbestos fibers from WEIL-McLAIN boiler components before they could find liability.$T$=<$=T3*2 $=L00548000213000006*000006 $=L01525000572000320*000320 $IWehmeier v. UNR Industries, Inc$N., 213 Ill.App.3d 6, 572 N.E.2d 320 (4th Dist. 1991)$=> held, as have any number of similar cases:$=S$%$?$%"Where there is competent$=P1298*79 evidence that one or a $Ide minimis$N number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor on causing a plaintiff's injury," $=<$=T3*2 $=L00548000213000006*000031 $=L01525000572000320*000320 213 Ill.App.3d, 31$=>$=I$%$?$%The court had already indicating the 'substantial factor test' was not concerned with the quantity but with the legal significance of the injury-producing agency or force.$TTo include Defendant's proposed special interrogatory along with the proposed non-IPI instruction could have caused the jury to assume they needed to engage in some form of quantitative analysis. Once the court found the Plaintiffs case survived a motion for directed finding, both cause in fac t and legal cause had been established to a sufficient level to get to the jury the issue of proximate causation.$TFor these reasons, it was not error to refuse Defendant's non-IPI instruction and special interrogatory.$TIV. The court's refusal to allow evidence of plaintiff's exposures to other asbestos-containing products$TThis issue has, without a doubt, been the most difficult and time-consuming for the court. It is also the one upon which the court has reached a different conclusion several$=P1298*80 times. After reviewing the case authority, research, and materials submitted with pre-trial motions, as well as the testimony of the experts at trial, the court is of the opinion, as was stated during the trial, that the state of the law and state of the science of asbestos-related illnesses are not in sync.$TA careful review of the key cases relied upon by both sides is necessary to understand the disconnect between the law as it currently stands, and the science applicable to asbestos-related diseases as we now know it.$T$=<$=T3*2 $=L00548000153000498*000498 $=L01525000505001213*001213 $ILipke v. Celotex Corp$N., 153 Ill.App.3d 498, 505 N.E.2d 1213 (1st Dist. 1987)$=> was the first asbestos case tried to verdict in Cook County. The principle for which $ILipke$N is most frequently cited is that evidence of exposure by the plaintiff to asbestos-containing products of other manufacturers is irrelevant and inadmissible since exposure to a variety of asbestos-products does not relieve the defendant of liability.$TThis principle was not even one of the primary issues of the case. The case centered around whether punitive damages were appropriate under the circumstances. The issue regarding evidence of other exposures$=P1298*81 was raised in the context of punitive damages and the defendant's attempt to present evidence of its low market share of asbestos products in relation to others.$TThe court then discussed basic negligence law in Illinois as it related to proximate cause. There is no quarrel with the proposition that there may be more than one proximate cause of an injury, or that one cannot avoid liability as a joint tort-feasor simply because someone else's negligence also contributed to the injury.$TThe problem, as this court sees it, is with the following statement:$=S$%$?$%"...$Iwhere such guilt exists$N,' it is no defense that some other person or thing contributed to bringing about the result for which damages were claimed. Either or both parties are liable for all damages sustained.' Thus the fact that plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries. Evidence of such exposure is not relevant." $=<$=T3*2 $=L00548000153000498*000509 $=L01525000505001213*000430 153 Ill.App.3d, 509, 505 N.E.2d, 430.$=> $(emphasis added$)$=I$TThe court's holding excluding other exposures begins with the presumption that guilt on the part of the defendant has already been established. It would appear$=P1298*82 there is a body of scientific research available to defendants which would indicate that only certain forms of asbestos at various levels of exposure may cause mesothelioma as opposed to other forms of asbestos-related diseases. Or, at the very least, there is scientific evidence available to defendants that the risk of developing mesothelioma as a result of chrysotile asbestos exposure is extremely low.$TAlthough the $ILipke$N rule, does not precludes defendant from asserting that their asbestos-containing products does not contain the type of asbestos for which there is any recognized research available to indicate causation of mesothelioma, it prevents them from pointing to any of the other sources of asbestos as the sole proximate cause.$TIn most other areas of tort law it is plaintiff's burden to establish by a preponderance of the evidence that something did or did not happen. In asbestos litigation, although there are no studies directly linking low exposures of asbestos to any reported case of mesothelioma, it is presumed that all forms of asbestos cause all forms of asbestos-related illnesses. In fact, Plaintiff's expert, Dr. Marks stated "My articles always say that all forms$=P1298*83 of asbestos cause mesothelioma...I've always assumed that they all are capable of causing the tumor." (Tr. Vol. VI, p. 1061) He acknowledged that there are no epidemiological studies reporting a proven connection between chrysotile asbestos exposure and mesothelioma. Dr. Lemen said the majority view in his profession is that chrysotile can cause mesothelioma, although he acknowledged on cross-examination that his position is still the topic of scientific debate and there are no scientific studies which show an increased risk of mesothelioma specifically from chrysotile asbestos. According to Dr. Lemen, there are no studies which show that commercial chrysotile does $Unot$O cause mesothelioma, and this appears to be the negative proof driving an asbestos plaintiff's experts in these cases.$TIt would appear that asbestos litigation may be one of the only areas where, although there is no known scientific proof for a plaintiff's claim that mesothelioma was caused by chrysotile asbestos exposure, since there are concomitantly no studies showing that it does not, that is enough to establish liability.$TThe $ILipke$N rule as it is now applied, presumes guilt, and from that, excludes all evidence$=P1298*84 of any other exposures. Defendants are precluded from pointing to some other proximate cause since they, as asbestos-product manufacturers are presumed guilty based upon a negative presumption as long as mere is any evidence the plaintiff was exposed to their product.$TThe court in $ILipke$N did not explain how they made the leap from joint tort-feasors in general to all asbestos defendants. They failed to cite any evidence in the trial that permitted them to make that leap. They referenced none of the scientific research, made no distinction between mesothelioma and other asbestos-related diseases, and did not consider different forms of asbestos or levels of exposure shown to cause asbestos-related diseases. They also cited no other cases in support of their decision to preclude any reference to other asbestos exposures.$TSince $ILipke$N however, it would appear courts have followed along without substantial analysis of the basis for its finding or application of more modem science.$TThe next case in the sequence is $=<$=T3*2 $=L00548000242000781*000781 $=L01525000610000683*000683 $IKochan v. Owens Corning Fiberglass Corp$N., 242 Ill.App.3d 781, 610 N.E.2d 683 (5th Dist. 1993).$=> Another asbestosis case like$=P1298*85 $ILipke$N, the court in $IKochan$N first interpreted $ILipke$N to apply only to those cases where causation had already been established. They then extended the same reasoning to cases where actual cause or cause in fact, was in dispute.$TCiting $=<$=T3*2 $=L00554000151000343*000343 $=L01525000603000449*000449 $IThacker v. UNR Industries$N, 151 Ill.2d 343, 603 N.E.2d 449 (1992)$=> the court discussed its understanding of the science relating to exposure and causation, and noted how the "frequency, regularity and p roximity" test adopted by the Supreme Court in $IThacker$N was intended to assist plaintiffs in proving causation. Because of this, they concluded that proof of other exposures would be too confusing to the jury.$TWhat happened as a result $Iof Kochan$N was that a rule first applied only where causation had already been established; albeit often by a negative inference, was then extended to those situations where causation was in dispute. This effectively removed from asbestos defendants any opportunity to point to the negligence of another as the sole proximate cause of plaintiff's injury.$TThe fallacious argument in support of this rule set out by the court in $IKochan$N was that plaintiffs risked 'looking$=P1298*86 foolish' by showing only minimal contact with defendants product and no other as the sole cause of their disease. This is difficult to imagine since plaintiffs are permitted to present experts who say all levels of exposure to all forms of asbestos cause the Specific asbestos-related disease of which plaintiff complains.$TDefendants can still attempt to show Plaintiff was not exposed to their product, says $IKochan$N; highly unlikely since even exposure by "fiber drift" throughout a facility is sufficient. See $=<$=T3*2 $=L00548000213000006*000006 $=L01525000572000320*000320 $IThacker$N and $IWehmeier v. UNR Industries, Inc$N., 213 Ill.App.3d 6, 572 N.E.2d 320 (4th Dist. 1991).$=> They are also free to attempt to show, according to $IKochan$N, "that exposure to its product was insufficient to cause injury" or that their product "contained such a low amount of asbestos that it could not have been the cause of the injury." Again this seems difficult to envision since plaintiffs are free to present expert testimony, which appears to be unsubstantiated by any scientific results, that $Uany$O level of exposure to $Uany$O form of asbestos may cause the disease of which plaintiff complains.$TSo it would appear the alternative$=P1298*87 defenses purportedly available to a defendant by the expansion of $ILipke$N, in reality, do not exist.$T$IKochan$N contends it is still the burden of the plaintiff to show defendant's product or conduct was a 'substantial factor' in causation. As can be seen in this case, and the court assumes, most other asbestos cases where the 'generic' asbestos expert is called, every exposure is purported to be a substantial factor, and if there is any exposure to defendant's product, regardless of the fact that there is no scientific evidence to support it, the conclusion is always that defendant's product was a substantial factor in causation.$TThis has created an undefendable posture for defendants in asbestos litigation which surely cannot be what was originally intended by the court in $ILipke$N. They made it clear that proof of guilt was a pre-requisite to application of their rule of exclusion. Such an interpretation would be consistent with the basic tort principles upon which their ruling was based.$TThe third case upon which plaintiffs rely to exclude evidence of other exposures is $ISpain v. Owens Corning Fiberglass Corp$N., 304 Ill.3d 356, $=<$=T3*3 $=L00548000304000356*000356 $=L01525000710000528*000528 $=L01525000710528534*528534 710 N.E.2d 528 (4th Dist. 1999).$=>$=P1298*88 $ISpain$N was a mesothelioma case where the primary issue was the exclusion of other exposures evidence. The scientific evidence before the court in $ISpain$N was that mesothelioma could be attributed to a single, but probably intense exposure to asbestos. The greater the exposure, the greater the risk.$TOne of Defendant's experts apparently testified to essentially the same thing. The other, testified that (1) particles of asbestos may be invisible to the naked eye, (2) mesothelioma is rare outside of exposures to asbestos, (3) the distance asbestos will travel and levels of exposure below which mesothelioma may occur, are not known, (4) asbestos can be carried throughout the work-site, and (5) all asbestos exposures may be implicated in causing an asbestos disease.$TDefendant sought to elicit testimony regarding decedent's other exposures.$TThe court in $ISpain$N repeated the basic rule of law regarding proof of causation, i.e. that causation evidence may be direct or circumstantial, but that circumstantial evidence cannot be based on 'mere speculation or conjecture'.$THowever, as the evidence in this case has shown, that is exactly what plaintiffs' experts do. Most of the medical or$=P1298*89 scientific experts testified, in one form or another that, (a) no one knows at what level of exposure any form of asbestos causes mesothelioma, (b) no one knows whether there is a minimum level of exposure; either by incident or over time, below which there is no risk of mesothelioma, (c) no studies have shown an incidence of mesothelioma occurring at levels below the minimum allowable exposure limits set by OSHA and others, (d) no studies have shown chrysotile asbestos to cause mesothelioma in humans at any level, (e) that the incidence of mesothelioma due to asbestos exposure does not follow the linear dose-response model used by OSHA since there are no known cases of mesothelioma at the very lowest levels of exposure.$TIn this trial, the testimony was essentially that although much is known about asbestosis and levels of exposure, very little is known about the incidence of mesothelioma. The $Uassumption$O, as even Dr. Marks put it, is that all levels of exposure will cause mesothelioma. There apparently is no scientific evidence upon which to base this assumption.$TRegardless, in $ISpain$N, the court cited $IWehmeier$N for the proposition that,$=S$%$?$%"$(w$)here there is competent evidence$=P1298*90 that one or a $Ide minimus$N $(sic$) number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury." $(emphasis in original$) $=<$=T3*3 $=L00548000304000356*000363 $=L01525000710000528*528534 $=L01525000710528534*528534 304 Ill.App.3d 356, 363, 710 N.E.2d 528,534.$=>$=I$T$IWehmeier$N was not a mesothelioma case, and the science appears to be substantially different for mesothelioma as opposed to asbestosis. Most of the generalizations made about asbestos exposure and asbestosis or the other more common forms of asbestos-related diseases appear to be true. Those same generalizations do not appear to be the current state of the science with regard to mesothelioma. Or at lease, they are the proper subject of medical and scientific debate to the extent that one should not be permitted to make absolute statements regarding causation.$T$ISpain$N noted how the exclusionary rule of $ILipke$N was premised upon proof of defendant's negligence having already been established.$=S$%$?$%"Thus, the fact decedent was exposed to a number of different asbestos products did not relieve the defendant of liability for the injury." $=<$=T3*3 $=L00548000304000356*000364 $=L01525000710000528*000535 $=L01525000710528534*528534 304 Ill.App.3d, 364, 710 N.E.2d, 535.$=>$=P1298*91 $=I$TThe court then discussed $=<$=T3*2 $=L00554000168000083*000083 $=L01525000658000450*000450 $ILeonardi v. Loyola University of Chicago$N, 168 Ill.2d 83, 658 N.E.2d 450 (1995)$=> which is most frequently cited by defense counsel in an effort to counter the exclusionary rule of $ILipke. Leonardi$N was a medical negligence case where the plaintiff sought to introduce evidence through a hypothetical question posed to an expert, regarding the conduct of one of a series of doctors who provided care to decedent early in her medical ordeal. Plaintiff had already settled with the estate for the doctor and he had been dismissed from the lawsuit by the time it went to trial.$TThe trial court denied plaintiffs motion $Iin limine$N seeking to bar this evidence; which ruling was affirmed by the appellate court. The supreme court discussed the sole proximate cause defense upon which defendant's position was based. Plaintiff claimed the common law principle that there can be more than one proximate cause for an injury precludes evidence of the negligence of another.$TAs the supreme court accurately noted, the principle presumes the defendant's conduct is $Ia$N proximate cause, if not the sole proximate cause. Where a defendant$=P1298*92 contends they were not even partly responsible, they have the right to assert that someone else was the sole proximate cause.$TThe court also held that since proof of proximate cause is the plaintiff's burden a defendant was not required to plead lack of proximate cause as an affirmative defense. A general denial was sufficient.$TIn the case before the court, defendants claimed not only that someone else was the proximate cause, but also that their product produced too low a dose of asbestos to cause mesotheliom and that the fiber type contained in their product, namely, chrysotile, was not known to cause mesothelioma.$TThe plaintiff in $ILeonardi$N just as Plaintiff here, contended the sole proximate cause defense would confuse or distract the jury's attention from whether defendant was a cause, either solely or in conjunction with others. The court noted:$=S$%$?$%"The sole proximate cause defense merely focuses the attention of a properly instructed jury (which instruction we will discuss later) on the plaintiffs duty to prove that the defendant's conduct was a proximate cause of plaintiff's injury." $=<$=T3*2 $=L00554000168000083*000094 $=L01525000658000450*000456 168 Ill.2d, 94, 658 N.E.2d, 456.$=> $(parentheses$=P1298*93 in original$)$=I$THere, although the court refused the non-IPI instructions tendered by WEIL-McLAIN regarding causation, it gave the sole proximate cause instruction including the second paragraph as did the court in $ILeonardi$N; which instruction was upheld by the supreme court.$TThe difference here is that the court refused to allow WEIL-McLAIN to introduce evidence of other exposures except in a limited fashion relating to the previous federal litigation and in conjunction with explanations regarding the nature of decedent's work as a plumber/pipefitter.$TEven at trial the court changed its opinion regarding the admissibility of other exposures evidence, eventually siding with the current line of cases in asbestos litigation and precluding the evidence sought by Defendants.$TThe court in $ISpain$N made a clear distinction between asbestos and medical negligence cases:$=S$%$?$%"The $ILeonardi$N court found the $ILipke$N standard inapplicable to medical malpractice cases, but did not change the law governing asbestos cases. Because asbestos-related diseases cannot be linked to one fiber or a particular defendant, Illinois courts have long recognized the difficulty in determining whether a$=P1298*94 specific asbestos exposure caus ed or contributed to a person's asbestos-induced injury or death. Thus, to assist plaintiffs in proving proximate cause, the supreme court adopted the 'frequency, regularity and proximity* or '$Ide minimis$N' test in $IThacker$N." $=<$=T3*3 $=L00548000304000356*000365 $=L01525000710000528*000535 $=L01525000710528534*528534 304 Ill.App.3d 356, 365, 710 N.E.2d 528, 535.$=>$=I$TThat distinction has been noted as well in $=<$=T3*2 $=L00548000331000935*000935 $=L01525000771001084*001084 $IPetre v. Kucich$N, 331 Ill.App.3d 935, 771 N.E.2d 1084$=> where, after quoting the same language above, the court found that $ILeonardi$N was controlling in medical malpractice cases, while $ISpain$N applied only to asbestos cases.$TBoth cases however, have somehow concluded that because $IThacker$N set out a method by which plaintiffs may prove causation, this, in some way, has met the first hurdle in all asbestos cases of establishing the defendant was at least $Ia$N cause of plaintiffs illness or death. They have also ignored the possibility of the defense of sole proximate cause in any asbestos case.$TThe Second Restatement of Torts Section 431, from which the $IThacker$N "substantial factor" analysis is derived, stated in part that "if$=P1298*95 the testimony clearly proves that the harm is from a cause other than the actor's negligence", then the question of whether a defendant's negligence was substantial or merely negligible, does not even arise.$TIt would therefore appear clear that even $IThacker$N acknowledges the possibility of an asbestos defendant contending someone else was the sole proximate cause. If so, then $ILeonardi$N would apply. But that is not the current state of the law in Illinois.$TWEIL-McLAIN presented substantial scientific testimony and submitted a number of affidavits and copies of scientific research in support of their efforts to include evidence of decedent's other exposures. There is no question that much of this information is in dispute in the scientific community, but does that preclude its admissibility?$TThis was not a $IFrye$N issue. $IFrye$N does not require unanimity of opinion among scientists, and in this case, there are just as many experts and studies available to the Defendant as there are available to Plaintiff. The difference here is that defendants in asbestos litigation are precluded by what this court considers to be a misapplication $Iof Lipke$N from submitting evidence that $=P1298*96 some other instrumentality was the sole proximate cause of the plaintiffs illness or death.$TWhat is the duty of a trial court then, when faced with a situation where it does not believe the law, as it is applied, takes into consideration the state of the current science surrounding asbestos and asbestos-related illnesses, or where the court believes the law was not intended to apply to the exact fact situation before it?$T14 Ill. Law & Prac. Courts Sec. 71 says:$=S$%$?$%"Rules of law settled by prior decisions will be followed, in the absence of any showing of serious detriment to the public interests, notwithstanding some individual hardship may be suffered thereby."$=I$TThe Illinois Supreme Court discussed the doctrine of $Istare decisis$N in $=<$=T3*2 $=L00554000209000076*000076 $=L01525000806000632*000632 $IVitro v. Mihelcic, M.D$N., 209 Ill.2d 76, 806 N.E.2d 632 (2004)$=> where the plaintiff parents of a non-fatally brain damaged child sought to recover for loss of filial consortium, a cause of action previously rejected in both circuit and appellate courts. They held:$=S$%$?$%"The doctrine of $Istare decisis$N 'e xpresses the policy of the courts to stand by precedents and not to disturb settled points.' $(citations$=P1298*97 omitted$) This doctrine 'is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.' $(citations omitted$) $IStare decisis$N enables both the people and the bar of this state 'to rely upon $(this court's$) decisions with assurance that they will not be lightly overruled.'$(citation omitted$)" $=<$=T3*2 $=L00554000209000076*000082 $=L01525000806000632*000634 209 Ill.2d 82, 806 N.E.2d, 634.$=>$=I$TEven at the supreme court level, any departure must be specifically justified, with good cause or for compelling reasons. The court in $IVitro$N pointed out that once a rule of law has been established, it should be followed unless there is a showing of 'serious detriment' prejudicial to public interests'.$TThe Fourth District addressed $Istare decisis$N in $=<$=T3*2 $=L00548000349000293*000293 $=L01525000810000287*000287 $ICity of Champaign v. Sicks$N, 349 Ill.App.3d 293, 810 N.E.2d 287 (4th Dist. 2004)$=> where the court indicated it was the policy of the courts to stand by precedents and although "not an inexorable command", citing $IChicago Bar Ass 'n v. $=<$=T3*2 $=L00554000161000502*000502 $=L01525000641000525*000525 Illinois State Board of Elections$N, 161 Ill.2d 502, 641 N.E.2d 525 (1994);$=>$=P1298*98 $=S$%%"courts should 'detour from the straight path $Iof stare decisis$N only for articulable reasons and only when the court must bring its decisions into agreement with experience and newly ascertained facts'". $=<$=T3*2 $=L00548000349000293*000296 $=L01525000810000287*000301 349 Ill.App.3d 296, 810 N.E.2d, 301.$=>$=I$TThe cases cited above involved situations where a litigant sought to encourage an appellate or supreme court to diverge from existing law. When taken to the trial court level, the demands of $Istare decisis$N would appear to require even greater adherence to the rule of law.$TIn $=<$=T3*2 $=L00554000152000533*000533 $=L01525000605000539*000539 $IState Farm Fire and Casualty Co. v. Yapejian$N, 152 Ill.2d 533, 605 N.E.2d 539 (1992)$=> the supreme court, stated:$=S$%$?$%"A decision of the appellate court, though not binding on other appellate districts, is binding on the circuit courts throughout the State..." $=<$=T3*2 $=L00554000152000533*000540 $=L01525000605000539*000542 152 Ill.2d 533, 540, 605 N.E.2d 539, 542.$=>$=I$TThe court went on to describe the procedure trial courts should use:$=S$%%"If a trial judge entertains genuine doubt about the continued validity of a reviewing court decision, he may, if he wishes to expedite resolution of the issue in a complex$=P1298*99 or protracted case, rule in accordance with the existing law and then enter the finding required by Rule 304 for an immediate appeal of a final judgment disposing of fewer than all of the claims or all the parties in the matter, or certify the particular question for purposes of a permissive interlocutory appeal, as provided by our Rule 308 (134 Ill.2d Rules 304, 308). Because of our system of precedent, he may not, however, disregard binding authority."$=I$THere, the court is of the opinion that $ILipke$N was never intended to result in a presumption of liability in asbestos cases. In addition, defendants have available to them a substantial body of scientific literature and experts who are capable of distinguishing the risks of mesothelioma caused by low dosages of chrysotile asbestos versus other more admittedly damaging forms of asbestos. They also have  a number of studies, just as relevant as those upon which plaintiffs' experts rely, indicating there is no way to quantify the risks of mesothelioma from low levels of asbestos exposure. See for example, $UThe Quantitative Risks of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure$O, Hodgson and Darnton, Vol. 44, $IAnn.$N $=P1298*100 $I Occup. Hyg$N. No. 8, pp. 565-601 (2000); $UPathology of Asbestos-Associated Diseases$O, Roggli, Greenberg & Pratt, Little, Brown & Co.$TIf $ILipke$N purportedly permits defendants like WEIL-McLAIN to submit evidence that their asbestos-containing product created too low a dose, or was not the fiber-type likely to cause mesothelioma, then it would only seem logical that they could identify other exposures of sufficient dosage and fiber-type as the sole proximate cause.$TThe logic for which the original holding in $ILipke$N has been extended by $IKochan$N and $ISpain$N is internally inconsistent. Defendants cannot present "low dose" or "fiber-type" evidence to establish sole proximate cause in another. $ILipke$N, as it is currently applied, precludes asbestos defendants from asserting as a defense that someone else is the sole proximate cause. The fact that there are no epidemiological studies connecting the levels of exposure defendants asserted were caused by their product, with mesothelioma, should have been enough to permit them to point to other exposures as the sole proximate cause. Instead, since there are no studies showing it $Udoes not$O cause mesothelioma, plaintiffs are permitted$=P1298*101 to speculate that it does; thereby precluding defendants from pointing to any other cause.$TThere are no other areas of the law outside of strict liability, where a negative premise is sufficient to establish causation in fact, and this was not the intention of the court in $ILipke$N.$THowever, the current state of the law precludes evidence of other exposures as long as there is any evidence of exposure to defendant's product. $IThacker$N has been circumvented entirely by plaintiffs' experts who testify that all exposures, of any level, to any frequency or degree, are sufficient, and all exposures are substantial contributing factors to a plaintiff's illness or death. Defendants are permitted to present evidence to the contrary, but cannot point to any other exposure as the sole proximate cause.$TThis court will reluctantly follow the law as it currently exists and therefore concludes it was not error to preclude WEIL-McLAIN from introducing evidence of plaintiff's exposures to other asbestos-containing products.$TV. The court's denial of Weil-McLain's proposed jury instructions and verdict form on contributory negligence$TDefendants contend it was error for the court to refuse to instruct$=P1298*102 the jury on contributory negligence and to refuse to tender a verdict form relating thereto. Plaintiff counters that there was no evidence of contributory negligence upon which to warrant in instruction or verdict form.$TEach party has the right to have the jury clearly and fairly instructed upon each theory which was supported by the evidence. See $=<$=T3*2 $=L00554000168000083*000083 $=L01525000658000450*000450 $ILeonardi v. Loyola University of Chicago$N, 168 Ill.2d 83, 658 N.E.2d 450 (1995);$=> $=<$=T3*3 $=L00548000304000356*000356 $=L01525000710000528*000528 $=L01525000710528534*528534 $ISpain v. Owens Corning Fiberglass Corp$N., 304 Ill.App.3d 356, 710 N.E.2d 528 (4th Dist. 1999).$=>$TThe evidence may be slight and the court in $ILeonardi$N said the test is "whether the jury was fairly, ful ly, and comprehensively informed as to the relevant principles, considering the instructions in their entirety."$TContributory negligence is defined as a lack of due care for one's own safety as measured by an objective reasonable person standard. $=<$=T3*1 $=L04538002005265266*265266 $IMcCarthy v. Kunicki$N, 2005 WL 265266 (Feb. 2005)$=> citing $=<$=T3*2 $=L00548000014000174*000174 $=L01525000302000108*000108 $IReidv. Employers Mutual Liability Insurance Co$N., 14 Ill.App.3d 174, 302 N.E.2d 108 (1973)$=>$=P1298*103 $TThe $IMcCarthy$N court went on to say:$=S$%$?$%"Instructions regarding contributory negligence are not proper where there is no testimony or other evidence from which a finding of contributory negligence might be made." $=<$=T3*1 $=L04538002005265266*000011 2005 WL 265266, p. 11$=>$=I$TIt is defendant's burden to show the contributory negligence of the plaintiff since he is the one to benefit thereby. $=<$=T3*2 $=L00554000111000341*000341 $=L01525000490000004*000004 $ICasey v. Basedon$N, 111 Ill.2d 341, 490 N.E.2d 4 (1986);$=> $=<$=T3*1 $=L00548000286157642*157642 $IZook v. Norfolk & Western Ry. Co$N., 286 Ill.App.3d 157,642$=> N.E.2d 1348 (4th Dist. 1994).$THere, proof of contributory negligence required the defendants to show the decedent was aware of certain hazards or risks posed by his exposure to the asbestos-containing products contained in or shipped with Defendant's boilers. The testimony of both the decedent in his video deposition and decedent's, son, Randy, was that they were not aware of the hazards of asbestos at the time they worked on, repaired or installed WEIL-McLAIN boilers. They also indicated they saw no warnings on any asbestos-containing component of Defendant's boilers.$TEven Defendants went to great lengths to show that$=P1298*104 as late as the mid-70's little if anything was written about the hazards of asbestos. They maintained they were not aware of the hazards of asbestos until the OSHA citation of 1974. Mr. Schuelke said they did not warn anyone before 1974. (Tr. Vol. IV, pp. 714, 750) Considering the 20-40 year latency of asbestos-caused caused mesothelioma, and the fact that decedent worked from 1952 until retiring in 1990, had there been evidence of either knowledge or warnings about asbestos after 1974, it would not matter. CLARENCE NOLAN would have worked on or around Defendant's boilers for 22 years before even WEIL-McLAIN was aware of any hazard.$TThe only evidence of printed warnings came from Mr. Schuelke who testified in Defendant's case as follows:$=S$%$?$%"All products that had asbestos-containing products that could create fibers were put $(sic$) a warning or caution on them. The caution, paraphrased, said, 'Asbestos. Avoid creating dust. Avoid breathing it because it could be harmful to your health'" (Tr. Vol. XI, p. 1653)$=I$THe said this warning was placed on asbestos products shipped to the field after the OSHA visit of 1974, and was on all products except a form of putty that was shipped pre-sealed. $=P1298*105 Mr. Schuelke said that during the reformulation period between 1974 and 1986 after which all asbestos-containing components were replaced, the asbestos rope was bagged and contained a caution which read: "Caution, Contains asbestos. Avoid creating dust and inhaling because it could be harmful to your health". (Tr. pp. 1653-1656)$TOn cross examination, Mr. Schuelke acknowledged, in a round-about way, that the warnings said nothing about wearing respiratory protection while working around the product. (Tr. p. 1724)$TThe evidence also indicated Mr. Schuelke did not sta rt working for WEIL-McLAIN until 1989, or 3 years after all asbestos-containing components were removed or replaced. He was not present, nor did he have direct knowledge of the existence or exact wording of any warning.$TThe degree of evidence sufficient to establish contributory negligence is determined from the facts of each case and normally rests within the sound discretion of the trial court. $=<$=T3*1 $=L04538002005265266*265266 $IMcCarthy v. Kunicki$N, 2005 WL 265266 (Feb. 2005)$=>$THere, Defendants presented no direct evidence that warnings were placed on any WEIL-McLAIN product or component from 1974 until all asbestos was phased$=P1298*106 out in 1986. Mr. Schuelke was not employed by WEIL-McLAIN during the relevant time frame, and, in response to other questioning about the OSHA citation, he indicated the source of his knowledge about what transpired during that time was what others told him. (Tr. p. 1641)$TIt would have seemed a small matter for WEIL-McLAIN to produce a copy or photograph of the warning they said was placed on their products. In light of all the research and development Mr. Schuelke talked about, one would have expected a memorandum, letter, or other writing discussing the warning and how it was worded. It would not have been unreasonable to believe WEIL-McLAIN could have produced one of the bags to which the warning was affixed. None of that was presented at trial and the hearsay testimony of Mr. Schuelke should not be sufficient to allow a defendant an instruction on contributory negligence.$TAssuming the warning Mr. Schuelke said was on WEIL-McLAIN asbestos-containing components existed, it was not sufficient. No directions were given on how to reduce or prevent exposure, no reference was made to the need for respiratory protection or the possible effects of exposure. Most importantly however, there$=P1298*107 is nothing to indicate the warning as Mr. Schuelke understood it, was the actual warning given.$TBased upon this evidence, the court, in the exercise of its discretion, concluded there was insufficient proof of CLARENCE NOLAN's contributory negligence to permit the instruction and verdict form requested, and it was not error to refuse Defendant's request.$TVI. The court's refusal to allow as evidence, portions of decedent's discovery depositions and written discovery responses from the 1988 asbestos lawsuit$TDefendants argued the decedent did not include WEIL-McLAIN as a defendant is his 1988 federal asbestosis law suit and never mentioned WEIL-McLAIN as one of the manufacturers of boilers he may have worked on in his 39 year career, during his discovery deposition or in response to written interrogatories.$TAs a result, they sought to introduce the deposition and answers to interrogatories to show the absence of any reference to WEIL-McLAIN as prior inconsistent statements and admissions by silence.$TThis issue arose throughout the litigation because it was also a way by which the Defendants were hoping to introduce evidence of other exposures in a context entirely separate from the $=P1298*108 $ILipke$N issue.$TThe situation before the court is similar to one of the ancillary issues raised in $ILipke$N. There, the plaintiff was questioned extensively in a discovery deposition by 27 original defendants over 6 days. As a matter of trial strategy, defendant's counsel did not question plaintiff and therefore there was no identification of defendant's product. They were later identified in written interrogatories. At trial, defendant contended the plaintiff was changing his testimony because he then identified defendant's product as one of those to which he had been exposed.$THere, during the previous federal case, the defendant did not identify WEIL-McLAIN as one of the brand of boilers upon which he worked. However, WEIL-McLAIN was not a defendant to that litigation and there was no reason, nor was there anyone present who was interested in asking about WEIL-McLAIN.$TContrary to Defendants' assertion here, CLARENCE NOLAN was never asked to provide an exhaustive list of all the various boilers upon which he had ever worked. He was asked about the various asbestos-containing components products, or manufacturers thereof that he could recall having been exposed to at various job $=P1298*109 sites. No one inquired specifically about WEIL-McLAIN boilers or their component parts. Even though there were several references to boilers, both sectional and 'package', no one followed up with any questioning regarding the boilers other than to seek to identify particular asbestos components and their manufacturers.$TAs Defendants pointed out several times at trial, they were neither asbestos component manufacturers nor suppliers, but merely used certain component parts with their boilers. Nothing on the Plaintiffs written answers to interrogatories submitted as Defendant's Exhibits 18 & 19 concerned boilers or their component parts; other than to provide general descriptions of job sites which included boiler-work. During decedent's deposition in 1989 none of the defendants were concerned about identifying boiler manufacturers and decedent was never questioned about them to the extent argued by WEIL-McLAIN.$TOne of the most inclusive question asked of decedent during the deposition taken in 1989, is found in a question asked by a Mr. Siegert, representing Defendant Flintkote:$=S$%$?$%"Q. Mr. Nolan, is it fair to say that the products and the manufacturers that you have named during the$=P1298*110 deposition both today and yesterday are all of the asbestos products and manufacturers which you recall and which you believe you were exposed to during your work history?" A. That I can definitely say I was involved with, that is the truth." (Deft's Ex. # 22 Offer of Proof, Tr. p. 643)$=I$TSimilar questions were asked by a Ms. Robert representing J.P. Bushnell earlier in the deposition:$=S$%$?$%"Q. Mr. Nolan, I have just a couple questions for you. Is there anything that you haven't referred to before which would refresh your recollection as to any other asbestos products or manufacturers that you have worked with throughout your work career?$%A. I don't know what it would be.$%Q. Have you identified all the products and all the manufacturers of asbestos products that you have worked with to the best of your ability?$%A. To the best of my knowledge yes. I am sure that I have worked with a whole bunch more that I have forgotten." (Tr. pp. 604-605)$=I$TAt the outset of the deposition on the previous day, the following questions were asked and answers given:$=S$%$?$%$(By Mr. Piland$): Q. Okay, now we have a list of places that you worked and products genetically that you've been exposed to; is that $=P1298*111 the full and complete list of products which you can recall working with or around during you work career as amended by your attorney here this morning? MR. HOLZMAN: You mean generically, not the manufacturer, but the type of product?$%$?$%BY MR. PILAND:$%Q. The type of product.$%A. That's basically it, yes.$%Q. Now, with respect to the manufacturers of the products, is the list of manufacturers of products which you have listed on answer to, s upplemental answer to interrogatories number 15, is that the full and complete list of all the products that you worked with or around during your working career? MR. HOLZMAN: That he can recall.$%$?$%THE WITNESS: That I can recall, yes. There has to be some more, but I can't tell you honestly what they are." (Deft's Ex. 21, Offer of Proof, pp. 16-17)$=I$TThe same question, with substantially the same answer was asked and answered several more times throughout the deposition as different defense counsel question the decedent.$TDuring the deposition he was asked about several jobs which he described as installing or repairing boilers, but no one inquired regarding the name or names of the manufacturers. Decedent described the nature of his work around the$=P1298*112 boilers to include working with or around asbestos block, pipe covering, insulating cement and gaskets. For the remainder of the deposition decedent was asked about specific asbestos-containing products or components by name, or was asked about any other asbestos-containing products he may have worked with or around at specific job sites.$TDefendants contend the previous deposition and answers are admissible as impeachment pursuant to either Supreme Court Rules 212(a)(1) or (a)(2), or both, which state:$=S$%$?$%"Discovery depositions taken under the provisions of this rule may be used only:$%(1) for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness;$%(2) as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person;"$=I$TPlaintiff accurately points out that Defendant confuses impeachment of a witness on cross-examination with impeachment by way of a prior inconsistent statement in a deposition. S. Ct. Rule 212 deals expressly with the latter.$TIn order for deposition testimony to be admissible$=P1298*113 for purposes of impeachment, it must contradict a material in-court statement of a witness. See $=<$=T3*2 $=L00548000288000408*000408 $=L01525000680000747*000747 $IIser v$N. $ICopley Memorial Hospital$N, 288 Ill.App.3d 408, 680 N.E.2d 747 (3rd Dist. 1997);$=> $IChapman v. Hubbard Woods Motors, Inc$N., 351 $UIIl.App.3d$O 99, $=<$=T3*1 $=L01525000812000389*000389 812 N.E.2d 389 (1st Dist. 2004).$=> Before any impeachment can occur, the witness has to testify at trial in a manner that was inconsistent with his prior out-of-court testimony. $=<$=T3*2 $=L00548000339000067*000067 $=L01525000790000077*000077 $ISmith v. Silver Cross Hospital$N, 339 Ill.App.3d 67, 790 N.E.2d 77 (1st Dist. 2003)$=>$TNothing in CLARENCE NOLAN's video-taped evidence deposition submitted at trial was inconsistent with the discovery depositions or written answers presented in the 1988 federal case. This was not a situation where a defendant gave an exhaustive list of all the boilers upon which he may have worked at one time, then later says something different. He was never asked about them.$TThe questions related solely to identifying the specific asbestos-containing components and manufacturers thereof, for specific jobs sites. He frequently pointed out in the deposition that he$=P1298*114 was sure there were probably others he was not recalling at the time, and did not know what might refresh his recollection later. He was never asked to identify the manufacturer of any boiler upon which he worked in any capacity.$TDefendants' alternative contention is that the deposition and written answers to interroga tories should have been allowed as admissions of a party opponent. The court agrees that it was error to rule decedent's discovery deposition answers no longer qualified as admissions of a party opponent. $=<$=T3*2 $=L00554000181000395*000395 $=L01525000692001150*001150 $IIn re Estate of Rennick$N, 181 Ill.2d 395, 692 N.E.2d 1150 (1998)$=> clearly provides otherwise.$THowever, as indicated above, a careful review of the entire 1988 deposition and written interrogatory answers reveal there were no admissions either expressly or tacitly. Even $IRennick$N would appear to preclude the use of depositions to seek to create an inference as Defendants do here. There needs to be either a judicial admission, i.e. a "deliberate, clear, unequivocal statements by a party about a concrete fact within that party's knowledge", or an evidentiary admission which constitutes substantive evidence admissible as an $=P1298*115 exception to the hearsay rule. See $=<$=T3*2 $=L00554000181000395*000406 $=L01525000692001150*001156 $IIn re Estate of Rennick$N, 181 Ill.2d, 406, 692 N.E.2d, 1156.$=> Silence is neither hearsay nor an exception thereto. It is an inference sought to be created due to the circumstances.$THere, Defendants sought to create the inference that the failure of decedent to list them in the 1988 lawsuit either impeached his credibility or constituted an admission by tacit omission. There was nothing about the questions or decedent's responses which would have permitted that inference.$TThe court did however, allow the following statement:$=S$%$?$%"Clarence Nolan filed a lawsuit on March 3rd, 1988, claiming that he developed the disease of asbestosis as a result of exposure to asbestos-containing products. Weil-McLain was not a named defendant in that lawsuit"$=I$TDefendants were given the inference they sought. They cannot claim prejudice at this point since neither the deposition answers nor the interrogatories would have produced any greater inference had they been admitted. It was not error for the court to refuse to admit them, and the statement read to the jury was more than sufficient to permit Defendants to argue the $=P1298*116 inference they sought.$TVII. The totality of errors$TDefendants then assert 61 claims of error (No. 60 having 92 sub-parts and No. 61 having 11) based on sustaining or overruling various objections made during trial, and granting or denying certain motions in limine.$=S$%$?$%"A reviewing court will grant reversal based on evidentiary rulings only when the error was substantially prejudicial and affected the outcome of the trial. Conversely, where it appears that an error did not affect the outcome of the trial, or where the reviewing court can see from the entire record that the error did not result in substantial prejudice, the judgment will not be disturbed." $=<$=T3*2 $=L00548000332000760*000760 $=L01525000776000262*000262 $IBachman v. General Motors Corp$N., 332 Ill.App.3d 760, 776 N.E.2d 262 (4th Dist. 2002);$=> citing $=<$=T3*2 $=L00554000198000541*000541 $=L01525000763000720*000720 $ISimmons v. Garces$N, 198 Ill.2d 541, 763 N.E.2d 720 (2002).$=>$=I$TConsidering each of Defendants' claims of error individually, or in their totality, it does not appear a contrary ruling in any one or all of them would have resulted in a different outcome. The motions in limine were properly denied with regard to the testimony of William Ewing and Dr. Mark. $=P1298*117 They were matters within the sound discretion of the trial court.$TTestimony of an industrial hygienist occurs in almost every asbestos-related disease case.  Nothing about Mr. Ewing's testimony was either novel or outside the realm of any other industrial hygienist who may be called to testify in such cases. The fact that certain theories propounded by Mr. Ewiing were disputed by experts for the defense did not preclude his testimony under any $IFrye$N standard. $IFrye$N does not require unanimity of scientific opinion.$TDr. Mark was permitted to testify even though an evidence deposition had been taken as a result of the representations of Plaintiff's counsel that he was probably not going to be available for trial. When Dr. Marks then appeared for trial, counsel for WEIL-McLAIN argued the supposed need for an evidence deposition was a subterfuge by Plaintiffs counsel. The real purpose of the evidentiary deposition was to require defense counsel to ask all their questions intended for trial, thereby giving Dr. Marks a better opportunity to prepare for his cross-examination when he appeared.$TAfter questioning Dr. Marks outside the presence of the jury the court was of the opinion that$=P1298*118 Defendants' counsel's suspicions were probably correct, but that there was no real way to ascertain who was responsible. The attorney who supposedly made the representations about the need for an evidence deposition was not trial counsel and Dr. Marks' remarks regarding his availability for trial were sufficiently vague that it was possibly a matter of miscommunication.$TAlthough inappropriate, it was not sufficient to warrant a sanction as severe as preclusion of Dr. Marks' testimony at trial, nor was it the basis for a mistrial.$TWith regard to the denial of an interlocutory appeal under Supreme Court Rule 308, one of the requirements is that "the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."$THere, there is no difference of opinion among the circuits with regard to the admissibility of other exposure evidence; they all follow $ILipke$N. This particular court happens to believe $ILipke$N has been improperly applied and is no longer consistent with the science surrounding asbestos-related diseases. That is not a "substantial$=P1298*119 difference of opinion".$TIn addition, an interlocutory appeal would not "advance the ultimate termination of the litigation". Even if the appellate court agreed, the case would still have to be tried, but with the additional evidence requested. It was not error to deny the request for an interlocutory appeal.$TNone of the other evidentiary rulings were, even if error, sufficient to substantially alter the outcome of the case.$TThe admission of exhibits and giving of instructions were also within the court's discretion and were not such as would affect the outcome of the trial.$TVIII. The court's refusal to grant a partial set-off for settlements from the 1988 suit$TThe court entered a written order on April 13, 2004 setting forth the reasons for its refusal to allow partial set-off in the amount of $ 23, 512.50. The rationale for the order is contained therein and the court stands by its previous ruling. It was not error to refuse to set off the settlements entered into by Plaintiff with other defendants in an unrelated litigation dealing with a separate and distinct cause of action. This was not a case like $=<$=T3*2 $=L00548000124000056*000056 $=L01525000463001011*001011 $IHandley v. UNARCO Industries, Inc$N., 124 $UIll.App.3d$O 56, 463 N.E.2d 1011 (4th Dist. 1984)$=>$=P1298*120 where a defendant sue d joint tort-feasors in separate suits, recovering against each group separately. This was a separate cause of action for a distinctly different disease which had not even been diagnosed at the time of the earlier lawsuit.$TFor all the above reasons, the court is of the opinion that none of Defendant WEIL-McLAIN's claims of error are sufficient to entitle them to a judgment n.o.v. In addition, the court is of the opinion that none of the claims of error are sufficient to entitle them to a new trial. Defendant's Post-trial motions are therefore denied.$%$?$%ENTER: Mar. 18, 2005$T/s/ Gary W. Jacobs$TJUDGE$200:#170502M0010K8010#$?$?#SID015000000NICMB#$?#LS091123LEkaleym#$?#LS091124LEkaleym#$?#091124PLXC0010067#$?$?#SPI#$?$220:$?#EXTR#$? $?#SALLY-WEIL#$?