Barnes v. Keene Corp. (1995)

Our plain-English summary of Barnes v. Keene Corp. (U.S. Court of Appeals, Seventh Circuit, October 3, 1995).

Ruth Barnes sued 18 asbestos manufacturers after her husband, Troy Barnes, died in May 1988 of malignant mesothelioma. The opinion says he was exposed to numerous asbestos products at work over a 43-year working life. The district court granted summary judgment to six defendants. A jury then found Troy Barnes 45% negligent and assigned fault to six defendants. Two of those, Celotex and Carey Canada, went bankrupt before judgment. The district court reduced the verdict for settlements and for his negligence and entered several-only judgments against the rest. On appeal, the Seventh Circuit held the defendants jointly and severally liable under Illinois law, relying on its earlier Tragarz decision and refusing to overrule it. It sent the case back to modify the judgment for the four remaining defendants. It rejected her complaint that the court should have entered three separate judgments, because she never proposed that in the district court.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. Court of Appeals, Seventh Circuit
• Decided: October 3, 1995
• Citation: 67 F.3d 626
• Docket: No. 90-3869
• Stage: Appeal from judgment after trial

Outcome. The Seventh Circuit reversed the refusal to impose joint and several liability and remanded for judgment against the four remaining defendants (Keene, Manville, Owens-Corning Fiberglas, Owens-Illinois), but affirmed the single judgment in all other respects, so widow Ruth Barnes won on liability and lost on the form of judgment.

What the court held. Following its earlier decision in Tragarz v. Keene Corp., the court held that asbestos defendants are jointly and severally liable under Illinois Code of Civil Procedure Sections 2-1117 and 2-1118. It also held that an objection to entry of a single judgment on separate verdicts was waived because the plaintiff never proposed separate judgments in the district court.

Issues decided: Fault, Apportionment and Settlement Credits, Trial Procedure and Discovery.

The people and their exposure

• Troy Barnes: mesothelioma; died

Who	Work	Where	When	Products
Troy Barnes			43 years of working life

The defendants

• Keene Corporation (manufacturer)
• Owens-Illinois, Incorporated (manufacturer) · its asbestos trust
• Owens-Corning Fiberglas Corporation (manufacturer) · its asbestos trust
• Manville Corporation (manufacturer)
• Celotex Corporation (manufacturer) · its asbestos trust
• Carey Canada, Incorporated (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Tragarz v. Keene Corp. (U.S. Court of Appeals, Seventh Circuit, 1992). The Seventh Circuit affirmed the $3,000,000 judgment for Grace Tragarz against Keene and Owens-Corning Fiberglas, but reversed the denial of Keene's request to file a contribution cross-claim against OCF and remanded for proceedings between the two defendants.

Amounts in the opinion

• $216,936.76 (total)
• $37,586 (settlement)
• $67,203.30 (total)

On our site

• Illinois Mesothelioma Lawyer: Asbestos Claims, Deadlines & Compensation

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

67 F.3d 626 (1995)

Mrs. Ruth BARNES, individually and as Special Administrator of the Estate of Troy Barnes,

deceased, Plaintiff-Appellant,

v.

KEENE CORPORATION, Owens-Illinois, Incorporated, Owens-Corning Fiberglas Corporation, et

al., Defendants-Appellees.

No. 90-3869.

Argued September 6, 1995.

Decided October 3, 1995.

Carey Canada 14%

Celotex 3%

Keene 4%

Manville 14%

Owens-Corning Fiberglas 14%

Owens-Illinois 6%

United States Court of Appeals, Seventh Circuit.

[*627] John E. Herrick, Barnwell, SC, Terrence M. Johnson, Chicago, IL, David A. Novoselsky (argued), Kevin S. Besetzny, Novoselsky & Associates, Chicago, IL, for Ruth Barnes.

Robert H. Riley, Schiff, Hardin & Waite, Chicago, IL, Kent L. Plotner, Heyl, Royster, Voelker & Allen, Edwardsville, IL, for Keene Corporation.

Robert H. Riley, Joseph O'Hara, Darren VanPuymbrouck, Schiff, Hardin & Waite, Chicago, IL, Kent L. Plotner, Heyl, Royster, Voelker & Allen, Edwardsville, IL, for Owens Illinois, Incorporated.

Carolyn Quinn, John Dames (argued), Kelley, Drye & Warren, Chicago, IL, for Owens-Corning Fiberglas Corporation. Fred B. Moore, Livingston, Barger, Brandt & Schroeder, Bloomington, IL, Raymond H. Modesitt, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, Terre Haute, IN, Jeffrey S. Hebrank, Burroughs, Hepler, Broom, MacDonald & Hebrank, Edwardsville, IL, for Celotex Corporation.

Fred B. Moore, Livingston, Barger, Brandt & Schroeder, Bloomington, IL, for Raymark Industries.

Fred B. Moore, Livingston, Barger, Brandt & Schroeder, Bloomington, IL, Jeffrey S. Hebrank, Burroughs, Hepler, Broom, MacDonald & Hebrank, Edwardsville, IL, for Carey Canada, Incorporated.

Michael T. Novak, Office of the Attorney General, Criminal Appeals Division, Springfield, IL, Michael D. Freeborn, Michael J. Higgins, Freeborn & Peters, Chicago, IL, Richard J. Wilderson, Graham & Graham, Springfield, IL, for Manville Corporation Asbestos Disease Compensation Fund.

Before CUMMINGS, ROVNER and D. WOOD, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff's husband Troy Barnes died in May 1988 of malignant mesothelioma, a cancer caused by exposure to asbestos. He was exposed to numerous asbestos products in the work place during the 43 years of his working life.

In August 1988, Ruth Barnes, the widow of Troy Barnes, filed a suit against 18 defendant asbestos manufacturers, blaming her husband's fatal illness on them. In February 1990, the district court granted summary judgment in favor of six defendants, with a subsequent jury trial against the remainder. The jury found that Troy Barnes was 45% negligent and attributed negligence to six defendants in the following percentages totaling 55%:

Carey Canada 14% or $25,109.11

Celotex 3% or 5,380.52

Keene 4% or 7,174.03

Manville 14% or 25,109.11

Owens-Corning Fiberglas 14% or 25,109.11

Owens-Illinois 6% or 10,761.05

Keene 4% or $ 7,074.03

Manville 14% or 24,759.11

Owens-Corning Fiberglas 14% or 24,759.11

Owens-Illinois 6% or 10,611.05

Verdict A: Survival Action

Medical expense $ 27,040.69

Disability/disfigurement 13,000.00

Pain and suffering 60,000.00

___________

Total $100,040.69

Verdict B: Wrongful Death Action

Loss of money $ 30,000.00

Loss of goods 2,000.00

Loss of services 10,000.00

Loss of society 54,000.00

Funeral expense 5,896.07

___________

Total $101,896.07

Five days before judgment, Celotex and Carey Canada filed for bankruptcy.

On October 17, 1990, the district court entered a final judgment order which determined that the following defendants were severally liable for damages assessed against them by the jury verdict. After deducting $37,586 that plaintiff had received in pretrial settlements, judgment was entered against the following six defendants in these amounts:

In response to plaintiff's October 26 motion, the district court amended the judgment on November 20, 1990. The final judgment reduced the total jury verdict of $216,936.76 by $40,086 based on pretrial settlements, leaving an amount of $176,850.76. This amount was reduced 45% for decedent's contributory negligence, leaving $97,267.22 as the recoverable amount. Because of their [*628] intervening bankruptcy, no judgment was entered against Celotex or Carey Canada. Thus a final judgment for several liability was thereupon entered as follows for a total of $67,203.30:

Joint and Several Liability of Defendants

Plaintiff complains that the district court should have found defendants jointly and severally liable under Sections 2-1117 and 2-1118 of the Illinois Code of Civil Procedure. The former section provides for joint and several liability for a plaintiff's medical expenses and the latter provides that, where recovery is sought based upon an act involving the discharge into the environment of pollutants, joint and several liability is appropriate. In Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.1992), we accepted identical arguments, but defendant Owens-Corning Fiberglas asks us to overrule that case.[1] We considered in Tragarz the very arguments that the defendants raise here, and they have articulated no persuasive basis on which to circumvent the doctrine of stare decisis.[2] Because we consider the Tragarz opinion to have been correctly decided,[3] we refuse to overrule it and reverse the district court's refusal to grant joint and several liability. Consequently, the judgment below is remanded to assess joint and several liability against the four remaining defendants.

Error in Entering Single Judgment

A single judgment was entered on the three separate verdicts returned by the jury as follows:

Verdict C: Loss of Consortium

Loss of society $ 11,000.00

Loss of services 4,000.00

___________

Total $ 15,000.00

Grand Total $216,936.76

Plaintiff now asserts that judgment should have been entered in favor of the Estate of Troy Barnes on jury Verdict A, a judgment in favor of plaintiff on jury Verdict B, and a judgment in favor of plaintiff on jury Verdict C. However, after the return of the jury's verdicts, plaintiff submitted a draft order to the district court proposing a single judgment. The initial judgment order was entered on October 17, 1990, and plaintiff contested several aspects of the judgment order in a post-trial motion on October 26. However, she never proposed three judgments below (see R. 304) and the point has therefore been waived. The judgment is reversed and remanded with instructions to modify it to reflect the joint and several liability of the four remaining defendants. In all other respects the single judgment is affirmed.

[1] In May 1994, we permitted Owens-Illinois to adopt the Owens-Corning Fiberglas brief.

[2] Other aspects of Tragarz have been cited with approval by this Court in McNabola v. Chicago Transit Authority, 10 F.3d 501, 516 (1993), and King v. Cooke, 26 F.3d 720, 723 (1994), and in three district court opinions, namely, Rosen v. Ciba-Geigy Corp., 892 F.Supp. 208 (N.D.Ill. 1995), In re Colorado Springs Air Crash, 867 F.Supp. 630, 633 (N.D.Ill.1994), and Elf Atochem North America, Inc. v. United States, 868 F.Supp. 707, 711 (E.D.Pa.1994).

[3] Tragarz distinguished Covalt v. Carey Canada, Inc., 860 F.2d 1434 (7th Cir.1988), on which defendants rely because it involved different statutes "concerned with hazardous waste or disposal sites" rather than regulating the productive uses of hazardous substances (980 F.2d at 427). Judge Harlington Wood, who authored the Tragarz opinion, was on the Covalt panel and therefore was well qualified to distinguish the Covalt case.

Sources

• The opinion on Google Scholar