{ "id": 3621380, "name": "SALLY NOLAN, as Executrix of the Estate of Clarence Nolan, Appellee, v. WEIL-McLAIN, Appellant", "name_abbreviation": "Nolan v. Weil-McLain", "decision_date": "2009-04-16", "docket_number": "No. 103137", "first_page": "416", "last_page": "464", "citations": [ { "type": "official", "cite": "233 Ill. 2d 416" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "151 Ill. 2d 343", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291660 ], "weight": 19, "year": 1992, "pin_cites": [ { "page": "355" }, { "page": "351-52" }, { "page": "355" }, { "page": "355-56" }, { "page": "354" }, { "page": "354" }, { "page": "354" }, { "page": "354-55" }, { "page": "355" }, { "page": "356-57" }, { "page": "359" }, { "page": "359" }, { "page": "359" }, { "page": "359" }, { "page": "366" }, { "page": "360" }, { "page": "354-55" }, { "page": "360" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0343-01" ] }, { "cite": "168 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307264 ], "weight": 14, "year": 1995, "pin_cites": [ { "page": "90-92" }, { "page": "92" }, { "page": "92-93" }, { "page": "92" }, { "page": "93" }, { "page": "93" }, { "page": "93" }, { "page": "93-94" }, { "page": "101" }, { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "101-02", "parenthetical": "instruction proper where there was some evidence of a nonparty's involvement" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0083-01" ] }, { "cite": "365 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264582 ], "weight": 8, "pin_cites": [ { "page": "968" }, { "page": "966-68" }, { "page": "968" }, { "page": "969" }, { "page": "977-78", "parenthetical": "Steigmann, J., dissenting" }, { "page": "968" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0963-01" ] }, { "cite": "153 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609402 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "509" }, { "page": "501" }, { "page": "503" }, { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0498-01" ] }, { "cite": "242 Ill. App. 3d 781", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5120609 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "790" }, { "page": "787-88" }, { "page": "789" }, { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0781-01" ] }, { "cite": "304 Ill. App. 3d 356", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564581 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "358" }, { "page": "364-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0356-01" ] }, { "cite": "207 Ill. 2d 590", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974985 ], "year": 2003, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0590-01" ] }, { "cite": "782 F.2d 1156", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1552352 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "1162-63" }, { "page": "1162" } ], "opinion_index": 0, "case_paths": [ "/f2d/782/1156-01" ] }, { "cite": "151 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "year": 1992, "pin_cites": [ { "page": "449", "parenthetical": "when jury returns general verdict, court does not know the basis of the jury determination" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0445-01" ] }, { "cite": "2005 WL 724041", "category": "reporters:specialty_west", "reporter": "WL", "opinion_index": 0 }, { "cite": "192 Ill. 2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453262 ], "year": 2000, "pin_cites": [ { "page": "520-21" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0505-01" ] }, { "cite": "168 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307264 ], "year": 1995, "pin_cites": [ { "page": "101-02" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/168/0083-01" ] }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "year": 2003, "pin_cites": [ { "page": "27" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/204/0001-01" ] } ], "analysis": { "cardinality": 2037, "char_count": 90893, "ocr_confidence": 0.819, "pagerank": { "raw": 2.4472287199885166e-07, "percentile": 0.8036848866478316 }, "sha256": "7825277de5722269cc81d3817bf5a6c05aad3511ac22246a6f726f0f1c0bfcbe", "simhash": "1:dbbccf52eabdc1ec", "word_count": 14085 }, "last_updated": "2023-07-14T16:56:19.732373+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SALLY NOLAN, as Executrix of the Estate of Clarence Nolan, Appellee, v. WEIL-McLAIN, Appellant." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the judgment of the court, with opinion.\nChief Justice Fitzgerald and Justices Carman, Karmeier, and Burke concurred in the judgment and opinion.\nJustice Kilbride dissented, with opinion.\nJustice Thomas took no part in the decision.\nOPINION\nPlaintiff, Sally Nolan, as executrix of the estate of her late husband, Clarence Nolan (decedent), sought recovery in the circuit court of Vermilion County against defendant, Weil-McLain, for the wrongful death of her husband. The jury returned a verdict for plaintiff, and a majority of the appellate court affirmed. 365 Ill. App. 3d 963. For the reasons that follow, we reverse the judgment of the appellate court and remand this cause to the circuit court for a new trial.\nBACKGROUND\nBecause of our ultimate disposition of this appeal, it is unnecessary for us to set forth the facts in detail. We recite only those relevant to the issue presented.\nA. Pretrial Proceedings\nIn 2001, Clarence and Sally Nolan filed their original complaint against 12 corporations \u2014 including defendant Weil-McLain \u2014 alleging that Clarence developed mesothelioma after being negligently exposed to the defendants\u2019 asbestos-containing products. Specifically, as to Weil-McLain, it was alleged that Clarence was exposed to asbestos when he installed, repaired or removed boilers manufactured by the company. Because Clarence died prior to trial, Sally, as the executrix of his estate, was substituted as plaintiff.\nThe 11 other defendants either settled or were dismissed prior to trial, leaving Weil-McLain as the lone defendant in plaintiffs suit. In its motion in limine, defendant sought to present evidence that the sole proximate cause of decedent\u2019s death was his exposure to asbestos-containing products of nonparty entities. Relying upon Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 355 (1992), defendant maintained that \u201cit is possible to exclude certain exposures as substantial contributing causes of a plaintiffs injury,\u201d and that once a plaintiff satisfies Thacker\u2019s \u201cfrequency, regularity and proximity\u201d test, proximate causation is a question for the jury to determine based upon competent and complete evidence. Defendant also relied upon Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83 (1995), to argue that it may present evidence that a nonparty was the sole proximate cause of the alleged injuries.\nPlaintiff thereafter filed a motion in limine seeking to bar all evidence of decedent\u2019s exposure to asbestos products of nonparties as irrelevant under Lipke v. Celotex Corp., 153 Ill. App. 3d 498, 509 (1987). Plaintiff, relying on Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 790 (1993), also argued that other-exposure evidence would confuse the jury and was highly prejudicial. Plaintiff contended that it was impossible to determine the specific fiber or asbestos exposure that caused decedent\u2019s mesothelioma, and, at best, defendant could show only concurrent causation of decedent\u2019s injury. Plaintiff also maintained that other-exposure evidence was not necessary for defendant to establish its defense that the amount of asbestos decedent inhaled while working with its products could not have caused his mesothelioma.\nDefendant countered that Lipke, Kochan and the related case of Spain v. Owens Corning Fiberglass Corp., 304 Ill. App. 3d 356 (1999), had been overruled by this court\u2019s decision in Leonardi, and, in any event, were factually distinguishable. Further, because it was the sole defendant, a jury would not accept a low-dose defense without evidence of other asbestos exposures, and that if the evidence showed that its products were decedent\u2019s only exposure, a jury could find that its products caused his mesothelioma. Defendant also asked that evidence of decedent\u2019s 1988 lawsuit for a different asbestos-related disease, asbestosis, be presented to the jury, as defendant was not named in that case as a source of his asbestos exposure.\nThe circuit court prefaced its ruling on the motions by stating, \u201cto me, there\u2019s a certain unfairness *** I think under the fact situation in this case defendant should be allowed to introduce the other sources.\u201d However, \u201cfollowing the law as I read the law as it exists today,\u201d the court granted plaintiff\u2019s motion in limine, and barred defendant from introducing evidence of decedent\u2019s other asbestos exposures. Although the court allowed evidence that decedent\u2019s earlier lawsuit had identified parties other than defendant as his only sources of asbestos exposure, they could not be named.\nB. Trial Proceedings\nIn January 2004, plaintiff\u2019s case proceeded to trial against defendant. There was no factual dispute that the cause of decedent\u2019s death was mesothelioma or that for a period of time prior to 1974 various asbestos-containing components were supplied with defendant\u2019s boilers, including cement and rope manufactured by other entities. The dispute revolved around the extent of decedent\u2019s exposure to defendant\u2019s boilers, as well as the type of asbestos-containing components which may have been supplied with them.\nThe jury heard decedent\u2019s testimony via a videotaped evidence deposition. He began his career in 1952, and, over the next 38 years, performed millwright work, plumbing, pipefitting and boiler installation and repair. Decedent estimated he worked on defendant\u2019s boilers \u201c20, 25\u201d times, routinely using the asbestos rope provided by defendant between the boiler sections, which produced dust when cut. Other times, he used asbestos cement supplied by defendant to seal gaps between boiler sections, and mixing this cement produced dust. Dust was also created when he cleaned up after a boiler installation. Decedent stated he never saw an asbestos warning on defendant\u2019s boilers or any other product, including pipe-covering.\nAfter the video presentation concluded, defendant argued that decedent opened the door to evidence of other exposures by stating he had never seen warnings on any asbestos products. The circuit court disagreed, noting that it was \u201cone response\u201d to one question, and that, based upon decedent\u2019s testimony, \u201cany intelligent jury [would have] already figured out [decedent had] been exposed to all kinds of asbestos and all kinds of circumstances.\u201d In an offer of proof, defendant presented the unedited transcript of decedent\u2019s full evidence deposition, including testimony that he had been exposed to numerous asbestos-containing products neither made nor supplied by defendant, including instances working at Lauhoff Grain, when asbestos dust \u201crained down\u201d on him from insulation and he \u201ccertainly\u201d inhaled it.\nDecedent\u2019s son, Randall Nolan, testified that in 1972 he began to work with his father, and echoed that they installed and repaired defendant\u2019s boilers \u201c20, 25 times,\u201d using the asbestos-containing dry cement and rope supplied by defendant, which created dust when mixed or cut. If one section of the boiler was broken, the entire unit had to be torn down and rebuilt, which also created dust. They also worked \u201ca couple times\u201d with air cell insulation on the boiler jackets, which sometimes crumbled off and released dust.\nOn cross-examination, Randall admitted that he and his father spent roughly 75% of their time performing pipefitting work at a Quaker Oats plant. Defendant made an offer of proof wherein Randall testified that while working at that and other sites, he and decedent removed pipe covering or insulation with a saw, inhaling large quantities of dust. They also worked in areas where insulation workers created dust while installing asbestos pipe covering.\nPaul Schuelke, defendant\u2019s director of product compliance, testified that all sectional boilers customarily used asbestos products from the 1950s through the 1970s, and that prior to 1974, the assembly instructions for some of defendant\u2019s boilers specified the use of asbestos cement. Defendant also provided asbestos rope and asbestos air cell insulation with some of its boilers. Contrary to Randall Nolan\u2019s description, Schuelke stated that work on defendant\u2019s boilers did not require handling air cell insulation. Schuelke also stated that none of the workers employed by defendant involved in the daily manufacture of its boilers ever contracted mesothelioma, lung cancer, or any other asbestos-related cancer.\nWilliam Ewing, an industrial hygienist, testified as an expert for plaintiff. Ewing opined that by working on defendant\u2019s boilers, decedent had \u201csignificant exposure\u201d to asbestos by using asbestos rope, mixing dry asbestos cement or tearing out air cell insulation.\nDuring Ewing\u2019s cross-examination, defendant established that decedent had also performed pipefitting work during his career. Ewing stated that, as a result, decedent likely would have handled many asbestos-containing products, and would have experienced significant asbestos exposure.\nDr. Eugene Mark, a pathologist, also testified as an expert for plaintiff. According to Dr. Mark, \u201call forms of asbestos cause mesothelioma,\u201d and that no exposure to asbestos is safe, including exposure to chrysotile asbestos fibers, the type defendant claimed was used in its products. Dr. Mark found it impossible to determine which asbestos exposure during decedent\u2019s career was the sole or single cause of his mesothelioma, and opined that \u201ceach and every exposure to asbestos that [decedent] had was a substantial contributing factor in causing his malignant mesothelioma.\u201d\nOn cross-examination, Dr. Mark accepted the propositions that \u201con a fiber-by-fiber basis, chrysotile [was] the least carcinogenic\u201d type of asbestos, and that \u201ca greater dose of exposure to chrysotile [would be] required than required for amphibole asbestos exposure\u201d to cause mesothelioma. Dr. Mark also agreed that some studies found no link between chrysotile asbestos exposure and mesothelioma. On redirect, however, Dr. Mark explained that pure chrysotile is rarely found in asbestos products, as it is often mixed with other fibers during the production process.\nDefendant made an offer of proof wherein Dr. Mark agreed that pipe covering and insulation contained amphibole asbestos fibers and are considered \u201cpotential high-dose, high-exposure products\u201d if handled improperly. He conceded that decedent experienced significant exposure to asbestos by working near insulators removing and installing pipe covering, making those exposures a \u201csignific\u00e1nt contributing factor\u201d in decedent\u2019s mesothelioma.\nDr. Richard Lemen, an epidemiologist, also testified as an expert on plaintiffs behalf. Dr. Lemen stated that the majority of experts believe chrysotile asbestos causes mesothelioma.\nOn cross-examination, however, Dr. Lemen agreed that several studies have shown a link between mesothelioma and amphibole-type fibers in pipe covering, and that chrysotile fibers are less potent than other fiber types, although \u201cbecause of its vast usage, [chrysotile] can certainly account for many cases of mesothelioma. \u2019 \u2019 He also agreed that there remains scientific debate over whether chrysotile can cause mesothelioma. On redirect, however, Dr. Lemen stated that it was \u201can academic question as to whether pure chrysotile causes mesothelioma\u201d because studies showed that all commercial forms of asbestos have been contaminated with other fiber types.\nTestifying as an expert for defendant, industrial hygienist Frederick Boelter opined that decedent\u2019s asbestos exposure from defendant\u2019s boilers was insignificant, as only between 2% and 5% of the total work time would be spent in contact with asbestos-containing components. Boelter performed studies in preparation for trial on four boilers manufactured by defendant which revealed that the airborne asbestos fibers generated were within regulatory limits, and the asbestos in the boiler components was pure chrysotile, with no contamination by other fibers. Based on these studies, Boelter opined that the asbestos exposure of someone who did not work with boilers would be higher than the exposure decedent would have received over 30 years of working with these boilers. Boelter concluded that working with or around asbestos components of defendant\u2019s boilers did not create a risk of asbestos-related disease.\nOn cross-examination, Boelter acknowledged that all but one of the boilers he tested was built after 1974. In addition, none contained air cell insulation and, to his knowledge, none involved the use of dry insulating cement.\nDefendant also presented the expert testimony of Dr. Robert Sawyer, a consultant in occupational and preventive medicine, who, contrary to Dr. Lemen, believed that hazardous contaminants could be removed from chrysotile. Dr. Sawyer opined that the type of asbestos found in defendant\u2019s boilers was not hazardous at the level of decedent\u2019s exposure, and would only be dangerous after a thousand years of the daily average dosage. Dr. Sawyer also noted several studies indicating that pure chrysotile asbestos was not harmful. Although he believed decedent\u2019s condition was \u201coccupationally related,\u201d Dr. Sawyer concluded that decedent\u2019s mesothelioma \u201ccould not have been caused by the asbestos component[s] of [defendant\u2019s] boiler on the basis of dose and fiber type.\u201d\nDuring cross-examination, Dr. Sawyer admitted that he had a \u201cpretty good idea\u201d that only chrysotile was used in defendant\u2019s products, but was not completely certain. He also agreed that many asbestos experts believe that chrysotile can cause mesothelioma, and there is no governmental agency in the world that has concluded that chrysotile does not cause this disease.\nDefendant then made an offer of proof, wherein Dr. Sawyer testified that he believed decedent was exposed to \u201cpipe covering, thermal insulation, [and] adhesives, [but] primarily pipe covering\u201d in his pipefitting work, and that his mesothelioma was caused by the amphibole fibers in those products.\nAt the close of the evidence, the circuit court read the following judicial notice statement to the jury: \u201cClarence Nolan filed a lawsuit on March 3rd, 1988, claiming that he developed asbestos-related pleural disease and pleural calcification as a result of exposure to asbestos-containing products. Weil-McLain was not a named defendant in that lawsuit.\u201d The circuit court then gave the jury, over plaintiffs objection, defendant\u2019s proffered sole proximate cause defense instruction, explaining that jurors could reasonably find that decedent\u2019s mesothelioma was not caused by asbestos exposure from defendant\u2019s products due to the dose and fiber type. Based on that finding, the jury could conclude that some other asbestos product was the sole proximate cause of decedent\u2019s disease.\nThe jury rendered a verdict in favor of plaintiff, awarding $2,368,000 in damages. This award was reduced by a $1,222,500 setoff for the amounts received from the defendants who had settled and been dismissed from the case.\nC. Posttrial Proceedings\nDefendant filed a timely posttrial motion in which it argued, inter alia, that the circuit court erred in granting plaintiff\u2019s motion in limine to exclude all evidence of decedent\u2019s other exposures to asbestos. In a 58-page written order, the trial court set forth in detail the evidence presented at trial, as well as the rationale for its trial rulings and its analysis of defendant\u2019s posttrial arguments. Although the court ultimately denied defendant\u2019s motion, it prefaced its ruling by noting that \u201cthe conflict for the court in this case has been between what the court considers the law should be, and the current state of the law in asbestos litigation.\u201d (Emphasis in original.) The court candidly acknowledged that it was denying defendant\u2019s motion \u201creluctantly,\u201d but was bound by the principle of stare decisis to do so.\nD. Appellate Proceedings\nA majority of the appellate court affirmed. 365 Ill. App. 3d 963. The panel rejected defendant\u2019s argument that the lower court erred by excluding evidence of decedent\u2019s other exposures to asbestos, holding that \u201c[o]nce a plaintiff satisfies the [frequency, regularity and proximity] Thacker test, a defendant is presumed to be a proximate cause of a decedent\u2019s asbestos injury.\u201d 365 Ill. App. 3d at 968. Although the trier of fact is required \u201cto independently evaluate whether the exposure was a substantial factor in causing decedent\u2019s injury,\u201d the panel, relying upon Lipke, Kochan and Spain, held that evidence of other asbestos exposures is irrelevant in answering this question. 365 Ill. App. 3d at 966-68. The panel also found defendant\u2019s reliance upon this court\u2019s decision in Leonardi to argue that such evidence is properly admitted to support a sole proximate cause defense to be misplaced. Noting that Leonardi involved a medical malpractice action, the panel held it did not control the instant cause, which \u201cindisputably involves asbestos exposure rather than medical malpractice.\u201d 365 Ill. App. 3d at 968. The panel concluded that it was reasonable for the jury to find that \u201cdecedent was exposed to defendant\u2019s asbestos-containing products,\u201d and that such exposure \u201cwas a substantial factor in causing decedent\u2019s injuries and resulting death.\u201d 365 Ill. App. 3d at 969.\nThe dissenting justice, believing it was error to bar the other-exposure evidence, would have reversed and remanded this cause for a new trial where defendant would be permitted to present the jury with evidence of decedent\u2019s other asbestos exposures in support of its sole proximate cause defense. 365 Ill. App. 3d at 977-78 (Steigmann, J., dissenting).\nThis court allowed defendant\u2019s petition for leave to appeal. 210 Ill. 2d R. 315. We also allowed the filing of several amicus curiae briefs in support of both plaintiff and defendant. 210 Ill. 2d R. 345.\nANALYSIS\nThis appeal presents the question of whether the circuit court committed error by excluding all evidence of decedent\u2019s exposure to asbestos throughout his 38-year career from products other than those of defendant. Defendant contends that the circuit court\u2019s ruling improperly deprived it of its right to present evidence in support of its sole proximate cause defense, as it could not identify to the jury other asbestos exposures of sufficient dosage and fiber type as the sole proximate cause of decedent\u2019s injuries. Further, defendant maintains that the circuit court\u2019s ruling \u2014 based upon the appellate court\u2019s decision in Lipke and its progeny \u2014 directly conflicts with this court\u2019s decisions in Thacker and Leonardi by creating an \u201cirrebutable presumption\u201d of liability, as \u201cthe jury was not allowed to consider and weigh the evidence, and instead, the lower courts chose which side\u2019s evidence was to be admitted and believed.\u201d Defendant also notes the circuit court\u2019s candid admission that it denied its posttrial motion on this issue \u201creluctantly.\u201d Because defendant contends these trial errors were not harmless, it requests that we reverse the judgment of the lower courts and remand this cause for a new trial, where evidence of all of decedent\u2019s exposures to asbestos may be admitted.\nPlaintiff counters that, based upon the Lipke line of cases holding such evidence to be irrelevant, the circuit court properly excluded evidence of decedent\u2019s exposure to other asbestos-containing products. Plaintiff contends that asbestos cases are \u201ccompletely unlike\u201d other tort cases, in that \u201cthey call for different rules of proof,\u201d evinced by the \u201cpresumption\u201d of causation established by this court in Thacker. To that end, plaintiff requests that we \u201crecognize an exception to the rule set forth in Leonardi\u201d for asbestos actions. Finally, plaintiff disputes defendant\u2019s assertion that any trial error was not harmless because despite the exclusion of other-exposure evidence, \u201c[t]he jury [nevertheless] heard all the relevant evidence *** [and] clearly understood that [decedent] was exposed to asbestos from sources other than [defendant].\u201d We disagree with plaintiff on all points.\nBecause the lower courts\u2019 exclusion of evidence of decedent\u2019s other exposures to asbestos was based upon their interpretation of existing case law, the question presented is one of law. Accordingly, our review is de novo. In re A.H., 207 Ill. 2d 590, 593 (2003).\nIn light of the parties\u2019 arguments, our analysis in this case is necessarily three-fold. First, we must initially examine whether Thacker created the presumption of causation that plaintiff suggests. If Thacker did create such a presumption, then the circuit court\u2019s exclusion of other evidence was correct. If Thacker did not create such a presumption, however, we must then examine the separate question of the propriety of the circuit court\u2019s ruling excluding evidence of decedent\u2019s exposure to asbestos from nonparties. Finally, if the circuit court erred in excluding this evidence, we must determine if that error is harmless or reversible.\nA. The \u201cPresumption\u201d of Causation\nIn Thacker, the plaintiff brought suit against several defendants seeking damages for her husband\u2019s injuries and death from cancer, which she claimed he contracted while working with their asbestos-containing products. The jury found for plaintiff, and, on appeal, we considered whether the circuit court erred in denying a defense motion for judgment n.o.v. because the plaintiff failed to produce sufficient evidence of exposure to defendants\u2019 asbestos. Thacker, 151 Ill. 2d at 351-52. Defendants maintained that their products comprised a small amount of the decedent\u2019s total asbestos exposure relative to the large amount of exposure he experienced from other sources, and that the jury\u2019s verdict was unsupportable, as it was forced to improperly speculate regarding the cause of his injuries. Thacker, 151 Ill. 2d at 355. The plaintiff countered that she met her burden by showing that the defendants\u2019 asbestos circulated in the air that decedent breathed, and, in light of medical testimony that only slight exposure could cause his illness, the jury\u2019s award was justified. Thacker, 151 Ill. 2d at 355-56. In holding that the circuit court correctly denied the defense motion for judgment n.o.v., we detailed the proper analysis to be used in determining whether a plaintiff has satisfied the burden of proof at trial.\nWe began by reciting the \u201cgeneral rule in civil cases\u201d that a plaintiff bears the burden of producing evidence sufficient to establish each element of the claim. Thacker, 151 Ill. 2d at 354. We explained that a plaintiff meets the burden of production with regard to a given element of proof \u201cwhen there is some evidence which, when viewed most favorably to the plaintiffs position, would allow a reasonable trier of fact to conclude the element to be proven,\u201d and cautioned that \u201c[wjhile circumstantial evidence may be used to show causation, proof which relies upon mere conjecture or speculation is insufficient.\u201d Thacker, 151 Ill. 2d at 354.\nFocusing upon the specific element of causation, we observed that \u201ccausation requires proof of both \u2018cause in fact\u2019 and \u2018legal cause.\u2019 \u201d Thacker, 151 Ill. 2d at 354. Because the parties in Thacker disputed whether the plaintiff had established the defendants were a \u201ccause in fact\u201d of the decedent\u2019s injuries, we noted that there are generally two tests used by courts to determine cause in fact: the traditional \u201cbut for\u201d test, where \u201ca defendant\u2019s conduct is not a cause of an event if the event would have occurred without it\u201d; and the \u201csubstantial factor\u201d test, where \u201cthe defendant\u2019s conduct is said to be a cause of an event if it was a material element and a substantial factor in bringing the event about.\u201d Thacker, 151 Ill. 2d at 354-55.\nBecause the plaintiff in Thacker chose to prove that the defendants were a cause in fact of decedent\u2019s injuries through the substantial factor test, we discussed that test at length:\n\u201cThe substantial factor test requires that the alleged tortfeasor\u2019s conduct be somehow \u2018responsible\u2019 for producing the injury at issue. (See Restatement (Second) of Torts \u00a7431, Comment a (1965).) The question of whether an alleged tortfeasor\u2019s conduct meets this test is usually a question for the trier of fact, but if a contrary decision is clearly evident from a review of all the evidence, Illinois courts rule in favor of the defendant as a matter of law. [Citations.] Put in a slightly different way, Illinois courts have, as a matter of law, refused to allow a plaintiff to take the causation question to the jury when there is insufficient evidence for the jury to reasonably find that the defendant\u2019s conduct was a cause of the plaintiffs harm or injury.\u201d Thacker, 151 Ill. 2d at 355.\nThacker noted that because \u201cunique problems [are] posed by asbestos injury,\u201d courts \u201chave struggled with how a plaintiff in an asbestos case can fairly meet the burden of production with regard to causation.\u201d Thacker, 151 Ill. 2d at 356-57. Surveying the varying approaches taken in jurisdictions throughout the country, we observed that the United States Court of Appeals for the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), had fashioned a rule derived from section 431 of the Restatement (Second) of Torts \u2014 and which had been adopted in several other jurisdictions \u2014 to determine whether sufficient evidence of cause in fact has been presented to allow a case to go to the jury. Thacker, 151 Ill. 2d at 359.\nIn Lohrmann, the court upheld a district court\u2019s grant of directed verdicts to three manufacturers of asbestos products used in the plaintiff\u2019s workplace because the plaintiff had adduced insufficient evidence to establish cause in fact between the use of the products and the plaintiff\u2019s asbestosis. The Lohrmann court explained in detail the rationale for its decision:\n\u201cAppellants would have us adopt a rule that if the plaintiff can present any evidence that a company\u2019s asbestos-containing product was at the workplace while the plaintiff was at the workplace, a jury question has been established as to whether that product contributed as a proximate cause to the plaintiff\u2019s disease. Such a rule would be contrary to the *** law of substantial causation. ***\nTo support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.\u201d Lohrmann, 782 F.2d at 1162-63.\nThe Lohrmann court characterized this as \u201ca de minimis rule\u201d since \u201ca plaintiff must prove more than a casual or minimum contact with the product.\u201d Lohrmann, 782 F.2d at 1162.\nIn Thacker, we adopted Lohrmann\u2019s \u201cfrequency, regularity and proximity\u201d test as a means by which an asbestos plaintiff can prove more than minimum contact to establish that a specific defendant\u2019s product was a substantial factor in being a cause in fact of a plaintiff s injury. Thacker, 151 Ill. 2d at 359. Thus, if an asbestos plaintiff chooses to establish cause in fact by using the substantial factor test, in order to have the question of legal causation submitted to the jury, the plaintiff must first show that the injured worker \u201cwas exposed to the defendant\u2019s asbestos through proof that (1) he regularly worked in an area where the defendant\u2019s asbestos was frequently used and (2) the injured worker did, in fact, work sufficiently close to this area so as to come into contact with the defendant\u2019s product.\u201d Thacker, 151 Ill. 2d at 359. It was our view in Thacker that \u201c[tjhese requirements attempt to seek a balance between the needs of the plaintiff (by recognizing the difficulties of proving contact) with the rights of the defendant (to be free from liability predicated upon guesswork).\u201d Thacker, 151 Ill. 2d at 359.\nWe concluded that under the facts in Thacker, the plaintiff had satisfied the frequency, regularity and proximity test to withstand a directed verdict and allow the issue of legal causation to be submitted to the jury. Because we further determined that the jury\u2019s ultimate ruling in favor of plaintiff was supportable based upon the totality of the evidence presented, we found no error in the trial court\u2019s denial of the defendants\u2019 motion for judgment n.o.v. Thacker, 151 Ill. 2d at 366.\nIn subsequently interpreting our decision in Thacker, however, our appellate court has erroneously concluded that Thacker stands for the proposition that once a plaintiff meets the frequency, regularity and proximity test, he or she thereby establishes legal causation. This error is evident in the opinion of the appellate panel below, which held that \u201c[o]nce a plaintiff satisfies the Thacker test, a defendant is presumed to be a proximate cause of a decedent\u2019s asbestos injury.\u201d 365 Ill. App. 3d at 968, citing Thacker, 151 Ill. 2d at 360. This court in Thacker created no such presumption. The lower court\u2019s incorrect reading of Thacker conflicts not only with the clear language of that opinion, but also with our goal of adopting that test to fairly balance the interests of plaintiffs and defendants in these actions.\nThacker reaffirmed the axiomatic rule that a plaintiff alleging personal injury in any tort action \u2014 including asbestos cases \u2014 must adduce sufficient proof that the defendant caused the injury. Thacker, 151 Ill. 2d at 354-55. In so doing, we reiterated black-letter, general principles of tort causation law, and repeated the well-settled rule that proof which relies on conjecture, speculation or guesswork is insufficient. Although we noted that asbestos plaintiffs face unique challenges in showing causation, we did not carve out an exception for asbestos cases which relieved those plaintiffs from meeting the same burden as all other tort plaintiffs. Rather, we adopted Lohrmann\u2019s frequency, regularity and proximity test \u2014 tailored to application in asbestos actions \u2014 as a means by which a plaintiff choosing to prove cause in fact through use of the substantial factor test may meet that burden. In addition, by adopting the rationale of the Lohrmann decision, Thacker thereby rejected the argument advanced by plaintiff here \u2014 and accepted by the appellate panel below \u2014 that so long as there is any evidence that the injured worker was exposed to a defendant\u2019s asbestos-containing product, there is sufficient evidence of cause in fact to allow the issue of legal causation to go to the jury. As the Lohrman court observed, such an approach is contrary to the concept of substantial causation, as without the minimum of proof required to establish frequency, regularity and proximity of exposure, a reasonable inference of substantial causation in fact cannot be made.\nThus, when correctly viewed, Thacker provides a means for determining whether a plaintiff in an asbestos case has presented sufficient evidence to establish cause in fact and, thereby, shift the burden of production to the defendant. We reiterate, however, that the ultimate burden of proof on the element of causation remains exclusively on the plaintiff, and that burden is never shifted to the defendant. For the sake of clarity, we reaffirm that Thacker creates no presumption on the issue of causation.\nB. Exclusion of Other-Exposure Evidence\nHaving concluded that no presumption of causation was created by our decision in Thacker, we now determine whether the circuit court\u2019s exclusion of evidence that decedent was exposed to asbestos from sources other than defendant was in error. Defendant correctly notes that in Thacker \u2014 unlike in the matter before us\u2014 evidence that other, nonparty manufacturers\u2019 asbestos products were present in the plaintiff\u2019s workplace was admitted, and the question of whether other-exposure evidence was admissible was not addressed. We do observe, however, that Thacker considered the very evidence that, in the matter at bar, the circuit court precluded the jury from hearing: that the plaintiff had been exposed to asbestos from nonparty entities. Thacker allowed the jury to consider all of the evidence \u2014 including that of other exposures \u2014 in deciding whether the defendants were a legal cause of the decedent\u2019s injuries. Although we ultimately held that the plaintiff had adduced sufficient evidence to support the jury\u2019s verdict in her favor, it is significant that the jury had a complete picture of all the evidence at the time it rendered its verdict. See Thacker, 151 Ill. 2d at 360.\nIn contrast, although the circuit court in the matter before us allowed plaintiff to introduce circumstantial evidence to satisfy her burden on the causation element, it also excluded evidence which defendant wished to present to rebut plaintiffs claims and to support its sole proximate cause defense. The circuit court felt compelled to bar this evidence pursuant to the decision in Lipke \u2014 a case decided five years prior to our ruling in Thacker\u2014 and its progeny. Defendant now asks that we strike down the exclusionary rule crafted by Lipke \u2014 and subsequently expanded in Rochan and Spain \u2014 because it skews the facts in favor of plaintiff and leads the jury to conclude that the asbestos products of the sole defendant at trial must have caused the plaintiffs asbestos-related disease in the absence of evidence of any other asbestos exposures. In addition, defendant argues that this rule of exclusion conflicts with our decision in Leonardi, which upheld the general validity of the sole proximate cause defense and allowed a defendant to introduce evidence of other potential causes of injury so that the jury may resolve which was a proximate cause.\nPlaintiff, in defending the validity of the exclusion of other-exposure evidence under Lipke, also relies upon Kochan to contend that even if such other-exposure evidence is excluded, a defendant may still show that the injured worker was not exposed to the defendant\u2019s products, or that his exposure was so insignificant as not to cause harm. Plaintiff also asserts that the exclusion of other-exposure evidence does not conflict with Leonardi, a medical malpractice case, because the distinctive factual natures of medical malpractice and asbestos suits require differing standards of proof to establish causation. We reject plaintiff\u2019s arguments.\nIn Lipke, the plaintiff was an insulation worker who filed a complaint against 27 manufacturers of asbestos products alleging they caused his asbestosis. Prior to trial, all but one defendant settled. At trial, the remaining defendant argued that the plaintiff did not have asbestosis but, rather, a lung disease caused by \u201chabitual\u201d smoking, and, in the alternative, that he had not been exposed to its asbestos products. The circuit court excluded evidence of the plaintiff\u2019s other asbestos exposures, and the jury found in favor of the plaintiff, awarding both compensatory and punitive damages. Lipke, 153 Ill. App. 3d at 501.\nIn affirming the judgment of the circuit court, the appellate court noted that \u201c[t]he major thrust of defendant\u2019s brief and argument is directed against the award of punitive damages.\u201d Lipke, 153 Ill. App. 3d at 503. Accordingly, the appellate opinion, in large part, consists of analysis of this issue. As to the defendant\u2019s secondary argument raising \u201ca series of errors dealing with evidence, continuance and instructions,\u201d the court, in one short paragraph, disposed of the assertion that evidence of the plaintiff\u2019s exposure to other asbestos products was erroneously excluded. After noting the general rule that there can be more than one proximate cause of an injury, the court then stated:\n\u201c \u2018In such a situation, one guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury ***.\u2019 [Citation.] *** [W]here such guilt exists, \u2018it is no defense that some other person, or thing contributed to bring about the result for which damages are claimed. Either or both parties are liable for all damages sustained.\u2019 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.\u201d Lipke, 153 Ill. App. 3d at 509.\nThis quoted passage comprises, in its entirety, the Lipke exclusionary rule. We note the court simply cites to basic tort law principles that are neither new, novel nor solely applicable to asbestos cases, and fails to analyze how those principles applied to the case before it. In our view, Lipke stands for no more than the well-settled rules that it cites: that the concurrent negligence of others does not relieve a negligent defendant from liability. When read correctly, Lipke simply holds that if a defendant\u2019s negligence proximately caused a plaintiffs harm, evidence that another\u2019s negligence might also have been a proximate cause is irrelevant \u2014 and therefore properly excluded \u2014 if introduced for the purpose of shifting liability to a concurrent tortfeasor. Lipke simply determined that evidence of the plaintiff\u2019s other exposures was not relevant to the specific defense raised, i.e., that the plaintiff did not have an asbestos-related disease, and he had no exposure whatsoever to defendant\u2019s asbestos products. In the matter at bar, however, defendant wishes to offer evidence of decedent\u2019s other exposures for different purposes: to contest causation through the use of the sole proximate cause defense, which was not raised by the Lipke defendant. As the instant cause presents a factually different situation, Lipke is inapposite.\nIn the appellate court\u2019s subsequent decision in Kochan, the plaintiffs brought personal injury suits against several defendants to recover damages for injuries suffered by workers who had been exposed to the defendants\u2019 asbestos-containing products. Prior to trial, all defendants except one settled with the plaintiffs. Although the remaining defendant argued that it was not a cause in fact of the worker\u2019s injuries and sought to introduce other-exposure evidence, the circuit court, relying upon Lipke, granted the plaintiffs\u2019 motion in limine to exclude such evidence. The jury returned a verdict for the plaintiffs, and defendant appealed. Kochan, 242 Ill. App. 3d at 787-88.\nIn affirming the lower court, the appellate court loosened Lipke from its factual moorings and unduly expanded its exclusionary rule to hold that \u201cevidence of exposure to other asbestos-containing products is not relevant *** in cases in which actual cause or cause in fact is disputed.\u201d Kochan, 242 Ill. App. 3d at 789. In other words, the Kochan court extended Lipke to hold that other-exposure evidence is always irrelevant, and supported this holding with the questionable rationale that because it is \u201cimpossible\u201d to determine whether a specific exposure caused injury, \u201c[allowing a defendant to present evidence of a plaintiff\u2019s exposures to other products whose manufacturers are not defendants in the trial would only confuse the jury,\u201d and, therefore, \u201c[t]he purpose for which the evidence is offered is inconsequential.\u201d Kochan, 242 Ill. App. 3d at 790.\nWe agree with the circuit court below that Kochan \u201ceffectively removed from asbestos defendants any opportunity to point to the negligence of another as the sole proximate cause of plaintiff\u2019s injury.\u201d The circuit court found Kochan to be premised upon a \u201cfallacious argument\u201d: although that decision purports to allow defendants to present alternative defenses that a particular exposure was not the proximate cause of a plaintiff\u2019s injury \u201csimply by showing, for example, that plaintiff was not exposed to its products, that exposure to its products was insufficient to cause injury, or that its product contained such a low amount of asbestos that it could not have been a cause of the injury\u201d (Kochan, 243 Ill. App. 3d at 790), the circuit court concluded that these claimed defenses \u201cin reality do not exist because plaintiff will likely call an expert to testify that every exposure to asbestos is a substantial factor in causation.\u201d We also agree with the circuit court that Kochan is \u201cinternally inconsistent,\u201d as we fail to discern how it is both \u201cimpossible\u201d to exclude specific exposures as a proximate cause, and yet \u201csimple\u201d for a defendant to defeat proximate cause at trial. Indeed, our decision in Thacker establishes that it is possible to exclude particular exposures as substantial contributing causes of a plaintiff\u2019s injury in asbestos cases, and that proximate cause is properly a question of fact for the jury to resolve based upon competent evidence. Thacker, 151 Ill. 2d at 355. The court\u2019s holding in Kochan improperly deprives a defendant of a rational alternative explanation, in the form of the excluded other-exposure evidence, for why the plaintiff is suffering from an asbestos-related disease.\nThe error of Kochan becomes more evident upon review of this court\u2019s decision in Leonardi. There, the plaintiffs, individually and as administrators of the decedent\u2019s estate, brought a medical malpractice action against several defendants seeking damages resulting from an improperly performed Cesarean-section procedure. Prior to trial, the decedent\u2019s attending physician\u2014 who was a named defendant \u2014 died and his estate settled with the plaintiffs. Thereafter, the plaintiffs filed a motion in limine to bar evidence relating to the alleged negligence of any person other than the remaining named defendants. The circuit court denied the motion and allowed evidence relating to the deceased attending physician\u2019s standard of care. The jury found in favor of the defendants, and the appellate court affirmed. Leonardi, 168 Ill. 2d at 90-92.\nOn appeal to this court, the plaintiffs argued that the lower courts erred in denying their motion in limine and allowing the jury to hear evidence of the conduct of the decedent\u2019s treating physician. The plaintiffs also advanced a broader attack against the validity of the sole proximate cause defense, which we defined as a defense which \u201cseeks to defeat a plaintiffs claim of negligence by establishing proximate cause in the act of solely another not named in the suit.\u201d Leonardi, 168 Ill. 2d at 92. We noted that the plaintiffs relied upon the\n\u201ccommon law principle that there can be more than one proximate cause of an injury, and that a person is liable for his or her negligent conduct whether it contributed wholly or partly to the plaintiffs injury as long as it was one of the proximate causes of the injury. [Citation.] A person who is guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence that contributed to the same injury. Where such guilt exists, it is no defense that some other person or thing contributed to the injury. Thus, evidence of another person\u2019s liability is irrelevant to the issue of defendant\u2019s guilt.\u201d (Emphases in original.) Leonardi, 168 Ill. 2d at 92-93.\nTherefore, the plaintiffs argued, the lower courts erred in denying their motion in limine because \u201cevidence of the [attending physician\u2019s] conduct was irrelevant and, therefore, inadmissible.\u201d Leonardi, 168 Ill. 2d at 92.\nWe concluded that the plaintiffs\u2019 reliance on this principle was \u201cmisplaced,\u201d as it \u201cpresumes that a defendant\u2019s conduct is at least a proximate cause of the plaintiffs injury.\u201d (Emphasis in original.) Leonardi, 168 Ill. 2d at 93. The defendants in Leonardi \u201cdenied that they were even partly a proximate cause of plaintiffs\u2019 injuries,\u201d and pursued the theory that the decedent\u2019s deceased treating physician was the sole proximate cause of the injuries. Leonardi, 168 Ill. 2d at 93.\nAs we did in Thacker, we again in Leonardi emphasized that \u201c[i]n any negligence action, the plaintiff bears the burden of proving not only duty and breach of duty, but also that defendant proximately caused plaintiffs injury.\u201d Leonardi, 168 Ill. 2d at 93. We also reiterated that \u201c[t]he element of proximate cause is an element of the plaintiff's case *** [and] the law in no way shifts to the defendant the burden of proof.\u201d (Emphasis in original.) Leonardi, 168 Ill. 2d at 93-94.\nWe further explained that, under this analytical framework, a defendant \u201chas the right not only to rebut evidence tending to show that defendant\u2019s acts are negligent and the proximate cause of claimed injuries,\u201d but also \u201chas the right to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiffs injuries.\u201d Leonardi, 168 Ill. 2d at 101. Accordingly, we expressly rejected the plaintiffs\u2019 argument \u2014 which was previously adopted by the appellate court in Kochan \u2014 that evidence of other possible causes for the claimed injury would confuse a jury or \u201cdistract[ ] [its] attention from the simple issue of whether a named defendant caused, wholly or partly, a plaintiffs injury.\u201d Leonardi, 168 Ill. 2d at 94. To the contrary, we held that the \u201csole proximate cause defense merely focuses the attention of a properly instructed jury *** on the plaintiff\u2019s duty to prove that the defendant\u2019s conduct was a proximate cause of plaintiff\u2019s injury.\u201d Leonardi, 168 Ill. 2d at 94. We therefore overruled any \u201c[decisions that contain statements to the contrary.\u201d Leonardi, 168 Ill. 2d at 94.\nLeonardi made it clear that the exclusionary rule first fashioned in Lipke is limited to the facts presented there, and held that it is error to extend that principle to instances where, as here, proximate cause is disputed and the defendant pursues a sole proximate cause defense. As the circuit court observed below, under such an approach, \u201c[defendants are precluded from pointing to some other proximate cause since they *** are presumed [hable] *** as long as there is any evidence the plaintiff was exposed to their product.\u201d The court believed that \u201cLipke was never intended to result in a presumption of liability in asbestos cases,\u201d and we agree. Such an approach improperly removes from the jury the determination of whether a defendant\u2019s conduct is a proximate cause of the plaintiffs injury. Leonardi underscored that in such cases, a defendant has a right to introduce evidence to contest proximate cause, and competent evidence about others as causal factors must be allowed. Accordingly, Leonardi overruled those decisions that held otherwise. Because Kochan improperly extended Lipke to hold that other-exposure evidence may be barred as irrelevant in cases in which cause is disputed, Kochan was overruled sub silento by Leonardi. We now make explicit what was previously implicit: we specifically overrule that portion of Kochan which holds that other-exposure evidence is irrelevant.\nWe note that subsequent to our decision in Leonardi, the appellate court delivered its ruling in Spain, wherein it not only perpetuated its erroneous interpretation of Lipke, but also incorrectly read our rulings in Thacker and Leonardi. In Spain, the plaintiff, as administratrix of her deceased husband\u2019s estate, filed suit against several asbestos manufacturers alleging that they were responsible for her husband\u2019s asbestos-exposure injuries and resulting death. Prior to trial, all defendants except one either settled or were dismissed. Spain, 304 Ill. App. 3d at 358. The circuit court denied the remaining defendant\u2019s motion in limine to present decedent\u2019s videotaped deposition concerning his multiple asbestos exposures unrelated to defendant\u2019s products, and the jury found in favor of plaintiff.\nOn appeal, the defendant, relying upon Leonardi, argued that it was prejudiced by the exclusion of the other-exposure evidence in that it was unable to support its sole proximate cause defense. In rejecting defendant\u2019s arguments, the Spain court erroneously reasoned that \u201c[t]he Leonardi court found the Lipke standard inapplicable to medical malpractice cases, but did not change the law governing asbestos cases,\u201d and proceeded to apply an incorrect reading of Thacker \u2014 a reading which we rejected earlier in this opinion \u2014 that once a plaintiff satisfies the frequency, regularity and proximity test, defendant \u201cis presumed to be a proximate cause of decedent\u2019s asbestos injury.\u201d Spain, 304 Ill. App. 3d at 364-65.\nAlthough plaintiff at bar relies upon Spain, that reliance is misplaced. As discussed, Spain conflicts with Thacker, and it also incorrectly interprets Leonardi. Plaintiff echoes Spain\u2019s erroneous conclusion that Leonardi \u201cgenerally applies] in medical negligence and other basic tort cases,\u201d but does not apply to asbestos actions. To the contrary, Leonardi \u2014 like Thacker \u2014 set forth basic tort law causation principles, and nothing in our ruling suggests that it is limited solely to medical malpractice actions, or that there should be a special exception to these general principles of tort law for certain types of cases. Our ruling in Leonardi is universally applicable to all tort actions. Given that Spain conflicts with both Thacker and Leonardi, it is hereby overruled.\nThe single paragraph in Lipke from which the exclusionary rule of other-exposure evidence is derived neither suggested nor held that a defendant should be barred from introducing evidence of other potential causes of injury where it pursues a sole proximate cause defense, nor that juries should be deprived of evidence critical to a causation determination. As observed by the dissenting justice below, the appellate court\u2019s erroneous interpretation of Lipke, Thacker and Leonardi in its rulings in Kochan and Spain left Illinois standing alone in excluding evidence of other asbestos exposures, and conflicted with our well-settled rules of tort law that the plaintiff exclusively bears the burden of proof to estabbsh the element of causation through competent evidence, and that a defendant has the right to rebut such evidence and to also estabbsh that the conduct of another causative factor is the sole proximate cause of the injury. We hold that the circuit court erred by relying on the appellate court\u2019s erroneous \u2014 and now overruled \u2014 decisions to prevent defendant from presenting evidence of decedent\u2019s other asbestos exposures in support of its sole proximate cause defense.\nC. Harmless Error\nHaving found that the circuit court erred in excluding other-exposure evidence, we must now determine whether that error was \u201charmless,\u201d as plaintiff contends, or reversible, as defendant maintains.\nAs a result of the trial court\u2019s exclusion of this other-exposure evidence, the jury was allowed to hear only that decedent had an asbestos-related disease, that every asbestos fiber can contribute to that disease, and that decedent had been exposed to defendant\u2019s product and no other. Hearing such evidence in a vacuum, a jury may naturally conclude that defendant\u2019s product was completely responsible for decedent\u2019s illness and death. Our case law \u2014 properly interpreted \u2014 stands for the proposition that the jury must be allowed to sort through competent \u2014 and likely conflicting \u2014 evidence so that it can fairly resolve whether exposure to a particular product was the proximate cause of injury. The circuit court itself \u2014 which excluded this evidence \u2014 recognized that its ruling made the case \u201cundefendable\u201d for defendant and was troubled by its own decision.\nWe are, therefore, compelled to reject plaintiff\u2019s assertion that any error at trial was harmless and does not require reversal. We note that the portion of plaintiff\u2019s brief devoted to this argument is devoid of citation to authority, and that the thrust of her argument is simply that the jury \u201cunderstood\u201d that decedent had been exposed to asbestos from sources other than defendant. However, we cannot assume what the jury understood. Cf. Maple v. Gustafson, 151 Ill. 2d 445, 449 (1992) (when jury returns general verdict, court does not know the basis of the jury determination).\nThe record reflects that the jury heard only about decedent\u2019s exposure to defendant\u2019s boilers on 20 to 25 occasions during his 38-year career, and was neither informed of his other exposures, nor where, when and to what extent they were. Although both sides presented expert testimony, the exclusion of other-exposure evidence effectively disarmed the defendant\u2019s experts, as they could neither discuss any evidence revealing decedent\u2019s overall asbestos exposure from a myriad of other sources, nor opine as to correlations between the various types and duration of exposures and his mesothelioma.\nOutside the presence of the jury, defendant made offers of proof that decedent was exposed to amphibole asbestos from other sources, and that it was his high-dose, repeated exposures to this fiber that caused his illness and death. For example, defense expert Dr. Sawyer opined that decedent\u2019s mesothelioma was caused by amphibole fibers contained in thermal insulation that he had contact with during his pipefitting work. Dr. Sawyer\u2019s opinion was supported by the testimony of decedent\u2019s son, who stated in an offer of proof that his father breathed asbestos dust when cutting pipe covering at the Quaker Oats plant and other sites; by plaintiffs expert, Dr. Mark, who agreed in an offer of proof that amphibole fibers are \u201cpotential high-dose, high-exposure products,\u201d that decedent experienced a significant exposure to this type of fiber as a pipefitter and that those exposures were a \u201csignificant contributing factor\u201d in decedent\u2019s mesothelioma; by plaintiff\u2019s expert Dr. Lemen, who stated in an offer of proof that amphibole asbestos was used in pipe covering; and also by decedent himself, who stated in a portion of his videotaped deposition that was not heard by the jury that during his work at Lauhoff Grain, asbestos dust from insulation \u201crained down\u201d on him and he \u201ccertainly\u201d inhaled it.\nDefendant presented evidence that its boilers contained only chrysotile fibers, and that decedent\u2019s exposure to this type of asbestos was not the cause of his mesothelioma. Notably, no evidence suggested that defendant\u2019s boilers contained anything other than chrysotile. In addition, plaintiff\u2019s own experts agreed that there is a scientific debate as to whether chrysotile can cause mesothelioma, and even if it can, they agreed that chrysolite is the least carcinogenic of the various asbestos fiber types. However, this defense was weakened by the exclusion of evidence of decedent\u2019s extensive exposure to amphibole fibers as a pipefitter and opinions that this type of asbestos was highly dangerous and led to decedent\u2019s illness and death.\nAlthough plaintiff maintains that the \u201ccourt t[old] the jury of other asbestos exposures,\u201d this is incorrect. The record reveals that the court told the jury only that decedent filed an asbestos-related lawsuit in 1988 against various defendants other than Weil-McLain. This information, rather than helpful to defendant, could have been damaging, as the jury was left to speculate about other exposures. Indeed, as defendant points out, the jury could have concluded that decedent was suing defendant because he lost the earlier action against other defendants due to his \u201coverwhelming\u201d exposure to defendant\u2019s products. It could have also been equally plausible to the jury that the earlier action resulted in a defense verdict, or that there was a finding that the other defendants did not cause his asbestosis \u2014 an illness which was different from the one in the instant cause.\nFurther, a review of the closing arguments at trial highlights the difficult situation in which defendant found itself due to the exclusion of other-exposure evidence. Defendant was left to ask the jury to guess as to how decedent spent the rest of his work life even though it was the only defendant in the case, and stated that although it was the sole defendant, \u201cit wasn\u2019t Weil-McLain that caused this problem.\u201d Defendant, however, was prevented from providing the jury with the information to answer these questions, leaving it to speculate. We also note that the absence of other-exposure evidence was exploited by plaintiffs counsel, who suggested in his closing argument that defendant\u2019s arguments were not credible:\n\u201cAll they have left is this mystery guy. Some other \u2014 it wasn\u2019t us, we weren\u2019t enough, some other dude must have done it. Where is the evidence? There is none, just speculation ***.\u201d\nFinally, plaintiff relies upon the circuit court\u2019s remark early in the trial that \u201cany intelligent jury has already figured out\u201d that decedent had been exposed to asbestos from other sources to support its argument that reversal is not required. We note the remark was isolated and delivered in the course of the court\u2019s rejection of defendant\u2019s argument that a statement in decedent\u2019s videotaped testimony opened the door to introduction of other-exposure evidence. It stands in sharp contrast to the court\u2019s lengthy opinion filed after the conclusion of trial in which it concluded that the exclusion of such evidence had made the case \u201cundefendable\u201d and that defendant had been \u201cprecluded from pointing to some other proximate cause,\u201d statements which plaintiff does not address.\nIn sum, the exclusion of evidence of decedent\u2019s other exposures to asbestos eliminated evidence of alternative causes for decedent\u2019s injuries, improperly preventing defendant from supporting its sole proximate cause defense:\n\u201c[Pjlaintiffs would have the issue of proximate cause tried in a vacuum, with no reference to the other actors whose conduct may also have been a proximate cause of [decedent\u2019s] injury. In the trial scenario *** [defendant] could argue to the jury that it was not responsible for the [injury to decedent], but could not suggest who was responsible. Thus, the jury\u2019s natural question \u2014 \u2018If not you, who?\u2019\u2014 would be left unanswered. That result would be untenable.\u201d Warner/Elektra/Atlantic v. County of DuPage, No. 83\u2014C\u20148230 (N.D. Ill. March 6, 1991).\nAccordingly, the errors at trial compel us to reverse and remand.\nBecause of our disposition of this appeal, we need not reach the remainder of defendant\u2019s arguments.\nCONCLUSION\nFor the foregoing reasons, the judgment of the appellate and circuit courts are reversed. We remand this cause to the circuit court for a new trial.\nAppellate court judgment reversed; circuit court judgment reversed; cause remanded.\nJUSTICE THOMAS took no part in the consideration or decision of this case.\nA full recitation of the facts and procedural history are set forth in the circuit court\u2019s memorandum \u201cOrder on Posttrial Motions\u201d entered on March 21, 2005, which may be found at 2005 WL 724041.\nMesothelioma is a tumor arising from the cells which Une the inner surface of the peritoneum, pericardium or pleura. 4 J. Schmidt, Attorney\u2019s Dictionary of Medicine and Word Finder M-154 (2007).\nAsbestosis is a lung disease caused by the prolonged inhalation of asbestos dust. 1 J. Schmidt, Attorney\u2019s Dictionary of Medicine and Word Finder A-552 (2007).\nLeonardi\u2019s rule that defendants in negligence actions are entitled to introduce evidence that some other entity was the sole proximate cause of a plaintiffs injury was reaffirmed in McDonnell v. McPartlin, 192 Ill. 2d 505, 520-21 (2000) (holding that \u201ca defendant\u2019s right not only to rebut evidence tending to show that the defendant\u2019s acts are negligent and the proximate cause of the claimed injuries, but also to endeavor to establish that the conduct of a third person, or some other causative factor, is the sole proximate cause of the plaintiffs injuries and, assuming some competent evidence is presented, to have the jury instructed on this theory\u201d). The principle of sole proximate cause is also embodied in an Illinois Pattern Jury instruction. Illinois Pattern Jury Instructions, No. 12.04, Notes on Use (3d ed. 1989); Leonardi, 168 Ill. 2d at 101-02 (instruction proper where there was some evidence of a nonparty\u2019s involvement).\nWe note plaintiff does cite to Thacker, but recites the now-overruled misinterpretation that it created a presumption of proximate causation and that defendant had the opportunity to \u201crebut the presumption.\u201d", "type": "majority", "author": "JUSTICE FREEMAN" }, { "text": "JUSTICE KILBRIDE,\ndissenting:\nAlthough I agree with the majority\u2019s conclusion that it was error to exclude evidence of the decedent\u2019s other workplace asbestos exposures, I disagree that the error in this case requires a new trial. I believe the error was harmless because the evidence admitted at trial was sufficient to apprise the jury of Clarence\u2019s repeated exposure to other sources of workplace asbestos and to provide sufficient grounds for Weil-McLain\u2019s sole proximate cause defense. Indeed, the trial judge agreed that sufficient evidence was admitted to establish another source as the sole proximate cause of Clarence\u2019s mesothelioma when he instructed the jury on the sole proximate cause defense, over Nolan\u2019s objection. Thus, in my view, the case need not be remanded to the circuit court for a new trial.\nBefore this court, Weil-McLain argues that the exclusion of other-exposure evidence was not harmless because the ruling precluded the admission of detailed evidence about Clarence\u2019s other exposures to workplace asbestos, allegedly forcing the jury to decide the proximate cause issue without sufficient evidence. Weil-McLain specifically cites the evidence it claims it was improperly barred from presenting: (1) Clarence\u2019s exposure to other sources of asbestos; (2) his inhalation of dust generated when other workers installed pipe covering in a Quaker Oats plant where he worked; (3) a statement by Nolan\u2019s expert, Dr. Eugene Mark, that Clarence\u2019s exposure to pipe covering and pipe insulation not made, sold, or distributed by Weil-McLain was \u201ca significant contributing factor in the development of his\u201d disease; and (4) a conclusion by defense expert Dr. Robert Sawyer that Clarence\u2019s mesothelioma was caused by amphibole fibers from thermal system insulation not made, sold, or distributed by Weil-McLain.\nAfter reviewing the voluminous and highly detailed record from the parties\u2019 two-week trial, I conclude that sufficient evidence was adduced, if believed by the jury, to allow it to find that Clarence\u2019s disease was caused solely by his exposure to asbestos from non-Weil-McLain products. Despite the trial court\u2019s ruling purportedly excluding all other-exposure evidence, the jury heard a multitude of varied references to his repeated exposure to other, more hazardous, forms of asbestos from other products in addition to his relatively minor exposure to the far less dangerous chrysotile asbestos in Weil-McLain\u2019s boilers.\nSome of this evidence came from Clarence\u2019s testimony in a videotaped evidence deposition. He admitted he had installed only 20 to 25 Weil-McLain boilers during his lifetime. Moreover, he stated he had worked not only as a pipefitter but also as an apprentice mechanic and an apprentice plumber and had performed millwright work, plumbing, pipefitting and boiler installation and repair during his 38-year career. The jury heard evidence that Clarence had been exposed to asbestos pipe covering when Clarence noted that he never saw an asbestos warning on any product, including pipe covering, while he was working. Based on this admission, Weil-McLain argued to the trial court that this statement opened the door to the admission of additional other-exposure evidence. The circuit court disagreed, concluding that specific introduction of that evidence was unnecessary because \u201cit\u2019s getting in anyway to a certain extent.\u201d In the trial court\u2019s view, \u201cany intelligent jury [would have] already figured out [that Clarence had] been exposed to all kinds of asbestos and all kinds of circumstances\u201d based on the testimony about his work and job history. The circuit court did, however, allow Weil-McLain to point out that it did not make pipe covering and to highlight that evidence during closing argument because Clarence had specifically mentioned his exposure to asbestos pipe covering in his deposition.\nClarence\u2019s son, Randall, also testified. He told the jury that he and his father performed pipe-fitting work together at a Quaker Oats plant for 13 years and that this work took about 75% of their time. None of that work involved Weil-McLain boilers. The pair only sporadically performed outside boiler work, including some work on Weil-McLain boilers. Randall confirmed that Clarence worked on a total of only 20 to 25 Weil-McLain boilers.\nRandall also testified that his father had previously filed a lawsuit alleging Clarence had developed another asbestos-related disease due to his exposure to workplace asbestos. Defense counsel previously noted the same lawsuit in his opening statement. Moreover, at the close of evidence the trial court instructed the jury to take judicial notice that Weil-McLain was not named as a defendant in that earlier case. Defense counsel took advantage of the favorable nature of that instruction, emphasizing it during closing argument and specifically asking the jury to consider why Weil-McLain had not been named as a defendant. Contrary to the majority\u2019s speculation that the trial court\u2019s reference to the earlier lawsuit may have harmed Weil-McLain\u2019s case (233 Ill. 2d at 447), defense counsel took the opportunity to use Clarence\u2019s failure to name Weil-McLain to its advantage by specially highlighting it to the jury rather than attempting to hide or minimize its impact. After overtly using this point to support its position in this case, Weil-McLain cannot now successfully argue that the same evidence undermined its defense.\nDefense counsel\u2019s closing argument also specifically noted evidence that Clarence worked on the defendant\u2019s boilers only about 25 days out of his nearly 40-year career, reminding the jury that he had many other work experiences as well. Certainly, by the end of trial the jury was well aware, as the trial court noted, that Clarence spent the vast majority of his time working around nonWeil-McLain products, including asbestos-containing pipe covering and that he had \u201cbeen exposed to all kinds of asbestos and all kinds of circumstances.\u201d Defense counsel again underscored this point during closing argument by asking the jury to consider what Clarence had been doing during the majority of his work life, when he was not repairing Weil-McLain boilers.\nDetails of Clarence\u2019s other asbestos exposure further were revealed by expert testimony from a number of witnesses. One of Nolan\u2019s experts, William Ewing, was an industrial hygienist who had been a consultant for the United States Public Health Service. Ewing stated that chrysotile fiber makes up 95% of the asbestos used in the United States and that Clarence received significant asbestos exposure from performing boiler work in general. Ewing also reiterated to the jury that Clarence had worked in many jobs, including plumbing, pipefitting, millwright work, and boiler repair.\nBefore cross-examining Ewing, Weil-McLain asked for permission to refer to Clarence\u2019s other asbestos exposures, asserting that Ewing\u2019s testimony opened the door when he noted that Clarence had not worked exclusively as a pipefitter, but had, in fact, worked in a number of different jobs. The trial court permitted Weil-McLain to \u201ctest [Ewing\u2019s] expertise *** in terms of the nature of the work and the work experience,\u201d including the type of materials involved. During cross-examination of Ewing, Weil-McLain firmly established that Clarence performed pipefitting, plumbing, millwright, and boiler repair work. Ewing explained that Clarence likely would have used asbestos-containing thermal system insulation, gaskets, valve packing, seals, and various cements, in addition to boilers and boiler components, in those jobs. Ewing added that the other work could create significant exposure to asbestos from pipe insulation or block insulation, providing more evidence that Clarence was exposed to dangerous levels of asbestos from multiple sources unrelated to Weil-McLain boilers.\nTestifying for Weil-McLain, Frederick Boelter, a licensed professional engineer and certified industrial hygienist who had formerly been an OSHA compliance officer, built on Ewing\u2019s testimony. Boelter showed the jury a piece of block insulation that contained asbestos, including amosite, a more hazardous type of fiber, and noted that pipefitters often encountered asbestos-containing block insulation while working alongside insulators. He explained that it was \u201cnot infrequent that pipefitters and insulators might be working in the same area, but the pipefitter would go first on a new construction installing the pipe systems, the insulators would follow to install the insulation, but the pipefitters would frequently remove insulation, perhaps would reapply insulation if it were a small job.\u201d\nBoelter also testified about his simulations of Clarence\u2019s work on Weil-McLain\u2019s boilers both in a controlled test environment and in a house. He performed studies on four Weil-McLain boilers, performing \u201cthe 3 fundamental activities that involve a boiler; installation, repair or removal.\u201d In every case, the airborne asbestos fibers generated were within the limits set by OSHA. He believed the actual asbestos levels would likely have been even lower in a ventilated workplace. Boelter tested the asbestos released from the boilers and determined that the Weil-McLain components were pure chrysotile. After calculating the effect of installing 600 Weil-McLain boilers over a 20-year period, he told the jury that the cumulative asbestos exposure would be \u201ctens of times lower\u201d than the exposure received by simply breathing ordinary air over an average person\u2019s lifetime. The jury already knew that Clarence had worked on Weil-McLain boilers only 20 to 25 times, not 600 times. Boelter concluded that Weil-McLain boilers did not create a risk of any asbestos-related disease.\nAnother of Nolan\u2019s experts, Dr. Richard Lemen, an epidemiologist, former Assistant Surgeon General of the United States, and former acting director of NIOSH, acknowledged considerable scientific disagreement over the ability of chrysotile fibers to cause mesothelioma. He admitted that nearly all legitimate scientists studying asbestos agree that, on a dose-for-dose basis, chrysotile is less capable than other types of asbestos fiber to cause the disease. Thus, larger exposures to chrysotile fiber are necessary to develop the disease.\nOn cross-examination, Dr. Lemen acknowledged that Clarence described himself as a pipefitter and admitted that he had described pipefitters and plumbers as\n\u201cpeople who put insulation around pipes. Some people call them insulators. *** Some people call them pipefitters. But oftentimes what we have seen is that *** the pipefitters do the same type of work as what some might call an insulator. That they do work around pipes, that they have to cut through the insulation. It may be that an insulator is put on to do their work as a pipefitter.\u201d\nDr. Lemen confirmed that pipefitters also worked with thermal insulation, again estabhshing that Clarence had been exposed to asbestos from thermal insulation when he was not working on Weil-McLain boilers.\nWhen asked whether Clarence performed any of the work included in his definition of a pipefitter, Dr. Lemen responded, \u201c[i]n relationship to the boilers, no.\u201d Nolan\u2019s counsel objected when defense counsel asked \u201c[i]n relationship to others?\u201d and the circuit court sustained the objection. Nonetheless, Dr. Lemen\u2019s original response reminded the jury that Clarence had performed many types of pipefitting work beside repairing and replacing Weil-McLain boilers. Thus, even though the trial court did not admit evidence that Clarence specifically inhaled dust from the installation of pipe covering when he worked at Quaker Oats, Dr. Lemen\u2019s testimony established that pipefitters were commonly exposed in the workplace to the more dangerous types of asbestos found in pipe covering and other thermal insulation.\nDr. Lemen also explained to the jury that thermal insulation contained high levels of amphibole asbestos fibers and that \u201cfor pipe covering and a lot of different insulation products, amosite and crocidolite were the choice type of asbestos to use.\u201d Dr. Lemen admitted that amphibole asbestos fibers, such as amosite and crocidolite, were far more potent than chrysotile fibers. This testimony distinguished more dangerous pipe covering materials from the asbestos in the Weil-McLain boilers found by Boelter to contain only nonamphibole chrysotile.\nAdditionally, the defense presented extensive expert testimony supporting its claims that chrysotile fibers were incapable of causing mesothelioma and that the amount of asbestos released from Weil-McLain boilers, as well as the overall dose received during Clarence\u2019s limited exposure to them, was too low to cause the disease. Paul Schuelke, Weil-McLain\u2019s director of product compliance, testified about the health effect from asbestos exposure while working on Weil-McLain boilers, stating that none of the company\u2019s workers, who routinely assembled the boilers, had ever developed an asbestos-related disease such as mesothelioma. During Weil-McLain\u2019s case-in-chief, Schuelke testified that \u201cthermal system insulation\u201d was not included in any Weil-McLain boilers, but he stated he had observed thermal system insulation on building pipes, leading to the inference that Clarence\u2019s other pipefitting work exposed him to the more dangerous amphibole asbestos found in thermal system insulation and pipe covering.\nNolan objected when Weil-McLain attempted to question Schuelke about the boiler industry\u2019s custom and practice in using asbestos components during the 1950s, arguing that the questions were an attempt to circumvent the earlier ruling barring the admission of other-exposure evidence. Although the trial court agreed to allow the evidence only for the limited purpose of establishing duty, Nolan declined the court\u2019s offer to give the jury a limiting instruction, thus permitting the jury to use that testimony to establish other asbestos exposures.\nIn addition, Schuelke undermined Randall Nolan\u2019s testimony about the work he and his father allegedly performed on Weil-McLain boilers. Randall testified that he and his father had worked on Weil-McLain boilers using both air cell insulation and asbestos rope. Schuelke told the jury that Weil-McLain boilers never required the simultaneous use of those components. Accordingly, any testimony suggesting that Clarence worked on a boiler using both products meant that \u201c[t]hat boiler was not a Weil-McLain product.\u201d Schuelke further impeached Randall\u2019s recollection of replacing damaged sections of a Weil-McLain boiler by agreeing that, \u201cif somebody describes that they had to take the entire section out to get to *** one of the broken sections\u201d it would be \u201ca misidentification of a Weil-McLain boiler.\u201d Schuelke similarly refuted Randall\u2019s claim that Clarence handled air cell insulation while assembling and disassembling Weil-McLain boilers, explaining the location of the air cell insulation in Weil-McLain boiler jackets prevented such contact.\nIn arguing that the exclusion of the other-exposure evidence requires a new trial, Weil-McLain also cites the exclusion of a statement by Dr. Eugene Mark, a pathologist at Massachusetts General Hospital, part of Harvard Medical School. In that statement, Dr. Mark concluded that Clarence\u2019s exposure to non-Weil-McLain pipe covering and pipe insulation was \u201ca significant contributing factor in the development of his\u201d disease. The plain language of Dr. Mark\u2019s statement, however, undermines Weil-McLain\u2019s sole proximate cause defense.\nBy concluding that Clarence\u2019s exposure to pipe covering and pipe insulation was a \u201csignificant contributing factor,\u201d but not the sole factor, in causing his mesothelioma, Dr. Mark creates a strong inference that other factors, possibly even his exposure to asbestos from Weil-McLain boilers, also \u201ccontributed\u201d to his disease. An expert witness\u2019 recognition of the presence of multiple \u201ccontributing\u201d factors seriously undercuts Weil-McLain\u2019s sole proximate cause theory by failing to eliminate Weil-McLain boilers as one of the possible causes of Clarence\u2019s disease.\nNotably, defense counsel was allowed to obtain supportive evidence from Dr. Mark on cross-examination. Dr. Mark admitted that the chemical composition of amphibole fibers, including amosite and crocidolite, was different from that of chrysotile fibers. He even accepted the defense\u2019s propositions that \u201con a fiber-by-fiber basis, chrysotile [was] the least carcinogenic of the various asbestos fiber types\u201d and that \u201ca greater dose of exposure to chrysotile [would be] required than required for amphibole asbestos exposure to cause diffuse malignant mesothelioma.\u201d In addition, Dr. Mark conceded that early asbestos studies analyzed the effect of amphibole fibers found in thermal insulation, adding to the mounting evidence presented to the jury that thermal insulation, found in pipe covering not made by Weil-McLain, contained a more dangerous fiber on a dose-for-dose basis and required much lower overall exposures to cause disease than the chrysolite fibers found in Weil-McLain boilers.\nFinally, the defense presented testimony from Robert Sawyer, M.D., a physician board-certified in preventive medicine, with a master\u2019s degree in public health from Yale, who taught epidemiology at the State University of New York and had worked for the EPA and with a pioneering medical researcher in the field of asbestos at Mount Sinai Hospital. Dr. Sawyer explained that the risk of mesothelioma increases as the dosage of exposure increases and that the differences between different asbestos fiber types in their ability to cause disease was huge. Due to the high temperatures present in boilers, he concluded that the asbestos in Weil-McLain boilers must have been the less dangerous chrysotile type. Dr. Sawyer stated that the risk, if any, from postprocessed chrysotile was extremely slight and that the amount of asbestos in Weil-McLain boilers was insufficient for any type of asbestos fiber to increase the risk of mesotheliorna. Sawyer added, however, that he still believed Clarence\u2019s illness was caused by his exposure to workplace asbestos, adding support to the conclusion that another source of workplace asbestos was the sole proximate cause of the disease because the chrysotile in Weil-McLain boilers could not have caused it.\nThus, even though Dr. Sawyer was not permitted to state his opinion that Clarence\u2019s mesothelioma was due to amphibole fibers in thermal system insulation, he did tell the jury that: (1) Clarence\u2019s workplace exposure to chrysotile in Weil-McLain boilers could not have been the cause of the disease and (2) some other source of workplace asbestos was the cause. In light of the testimony elicited from William Ewing, Frederick Boelter, Dr. Mark, and Dr. Lemen, stating that pipefitters often worked closely with or around pipe covering and block insulation containing dangerous amphibole asbestos from thermal insulation systems, Dr. Sawyer\u2019s excluded opinion would have added little. Contrary to Weil-McLain\u2019s claim, the exclusion of this one opinion is insufficient to create reversible error.\nI agree with the trial judge\u2019s express finding that \u201cany intelligent jury [would have] already figured out [that Clarence had] been exposed to all kinds of asbestos and all kinds of circumstances.\u201d Notably, that finding was made early in trial and was based solely on the testimony addressing Clarence\u2019s work history, before any expert testimony establishing the extent of Clarence\u2019s other asbestos exposures was given. Although the majority initially criticizes this finding because it came \u201cearly in the trial\u201d (233 Ill. 2d at 448), I believe the trial court\u2019s conclusive statement so early in the case exemplifies the harmless nature of the error. Even at an early stage of trial, well before the admission of the many additional references to Clarence\u2019s exposure to other, more harmful, asbestos types from his work in proximity to pipe covering and block insulation, the judge was confident that the jurors were well aware that Clarence\u2019s varied work experiences subjected him to numerous other asbestos exposures.\nThe majority next criticizes the trial court\u2019s finding by noting that it is \u201cin sharp contrast to\u201d a statement in the trial court\u2019s posttrial opinion, where the court \u201cconcluded that the exclusion of [other-exposure] evidence had made the case \u2018undefendable\u2019 and that defendant had been \u2018precluded from pointing to some other proximate cause.\u2019 \u201d 233 Ill. 2d at 448. Noticeably absent from this criticism is any mention of the express rationale underlying the \u201csharp contrast\u201d in those two statements.\nAs stated in the trial court\u2019s posttrial ruling, the sole reason the court was \u201ctroubled\u201d was its belief that stare decisis compelled it to apply the Lipke rule, thus creating an irrebuttable presumption that Weil-McLain was a proximate cause of Clarence\u2019s illness. The trial court\u2019s posttrial decision reveals that the court incorrectly believed that \u201cthe state of the law and state of science of asbestos-related disease are not in sync\u201d because the Lipke rule relied on a scientific presumption that all doses of \u201call forms of asbestos cause all forms of asbestos-related illness.\u201d Therefore, the trial court concluded that \u201casbestos-product manufacturers are presumed guilty based upon a negative presumption as long as there is any evidence the plaintiff was exposed to their product\u201d and, thus, are barred from presenting evidence of another sole proximate cause, making the cause \u201cundefendable.\u201d The \u201csharp contrast\u201d between the judge\u2019s statement early in the trial and its posttrial comments is attributable to the trial court\u2019s erroneous legal conclusion that the Lipke rule made the case \u201cundefendable\u201d by creating an irrebuttable presumption that Weil-McLain was a proximate cause of Clarence\u2019s illness. It was not due to a change in the court\u2019s view of the type of evidence heard by the jury.\nNow that this court has correctly declared the Lipke rule to be \u201cinapposite\u201d here (233 Ill. 2d at 438), the sole articulated basis for the apprehension stated in the post-trial ruling is eliminated. With the elimination of the sole basis for the \u201csharp contrast\u201d between the trial court\u2019s earlier statement that the jury had undoubtedly \u201calready figured out [that Clarence had] been exposed to all kinds of asbestos and all kinds of circumstances\u201d and its posttrial concern that the case was \u201cundefendable,\u201d the majority\u2019s criticism of the earlier statement is now also \u201cinapposite.\u201d\nI also note that if, after hearing all the evidence in the case, the trial court believed that its ruling actually prevented Weil-McLain from presenting evidence of Clarence\u2019s other asbestos exposures essential to its sole proximate cause defense, the jury instructions would have reflected this conclusion. Yet, instead of refusing Weil-McLain\u2019s tendered sole proximate cause instruction based on the lack of sufficient other-exposure evidence, the trial court gave that instruction to the jury, over Nolan\u2019s objection. Thus, both early and late in the trial, the court was not so overwhelmingly convinced that Weil-McLain had been entirely \u201cprecluded\u201d from \u201cpointing to some other proximate cause\u201d (233 Ill. 2d at 442) that it could not instruct the jury on Weil-McLain\u2019s sole proximate cause defense.\nBy giving that instruction, the trial court demonstrated its continued belief that sufficient evidence had been admitted to support Weil-McLain\u2019s sole proximate cause defense. Indeed, if the court\u2019s view had not persisted after it heard all the evidence, it could not have properly given the sole proximate cause instruction. Thus, the trial judge, who was undisputedly in a superior position to evaluate the evidence and the credibility of the witnesses during this lengthy trial, must have concluded that sufficient evidence had been admitted to support the claim that Clarence\u2019s exposure to asbestos from non-Weil-McLain products was the sole proximate cause of his illness.\nNonetheless, the majority rejects the trial court\u2019s conclusion and instead relies on a quotation from a federal trial court memorandum order and opinion where the judge denied the plaintiffs\u2019 motion in limine seeking to bar references to the settling defendants\u2019 liability. 233 Ill. 2d at 449, quoting Warner/Elektra/Atlantic v. County of DuPage, No. 83\u2014C\u20148230 (N.D. Ill. March 6, 1991). The majority\u2019s reliance on the quotation is misplaced because the cases are readily distinguishable. In Warner/ Elektra, the trial judge was making an initial ruling on a pretrial motion, before the admission of any evidence, while this court is reviewing the trial court\u2019s finding, made after the admission of all evidence, that sufficient evidence of Weil-McLain\u2019s sole proximate cause defense existed to permit the issue to go to the jury. In Warner/ Elektra, the court was attempting to avoid the potential problem that the jurors would be unable to find for the defendant if absolutely no evidence was admitted showing that a third party was the sole proximate cause of the injury. In contrast, here, despite the trial court\u2019s stated exclusion of all other-exposure evidence, the record is replete with evidence that the sole proximate cause of Clarence\u2019s illness was his workplace exposure to more dangerous forms of asbestos that were unrelated to Weil-McLain\u2019s products. The problem that the Warner/Elektra court anticipated simply did not arise in the present case. The majority\u2019s reliance on the Warner/Elektra quotation is misplaced because it does not accurately reflect the circumstances here.\nAlthough Weil-McLain\u2019s request for a new trial cites specific evidence purportedly excluded by the trial court\u2019s ruling, my review of the record reveals that either the substance of that evidence was indeed presented or that the evidence did not substantially support a sole proximate cause defense. Both parties offered strong, conflicting evidence on Clarence\u2019s exposure to different types and amounts of asbestos fibers from a variety of workplace sources, creating a genuine question for the jury about the true cause of Clarence\u2019s illness.\n\u201c[T]he weight to be assigned to an expert opinion is for the jury to determine in light of the expert\u2019s credentials and the factual basis of his opinion.\u201d Snelson v. Kamm, 204 Ill. 2d 1, 27 (2003). If the jury adopted Nolan\u2019s evidence and legal theory that mesothelioma was caused, at least in part, by Clarence\u2019s exposure to the asbestos in Weil-McLain\u2019s boilers, it would have necessarily rejected Weil-McLain\u2019s sole proximate cause defense and entered a verdict for Nolan. No amount of additional testimony specifically naming other possible asbestos sources would alter that determination. If, on the other hand, the jury were more convinced by the testimony and evidence supporting Weil-McLain\u2019s sole proximate cause theory, it would have returned a verdict for the defendant even though it could not identify the exact alternate source of Clarence\u2019s illness. It is enough that the jury can conclude the evidence established that some entity not present at trial was the sole proximate cause and that Weil-McLain\u2019s boilers were not even a contributing cause.\nEvidence identifying the specific outside sources that could have been the sole proximate cause is not necessary, or even relevant, to the jury\u2019s determination of whether the evidence proved that some source other than Weil-McLain was the sole proximate cause. The admission of more detailed identification evidence is not required to provide a sufficient basis for a jury finding in favor of Weil-McLain. Thus, Weil-McClain\u2019s sole proximate cause defense was not unfairly prejudiced due to the nature of the evidence that was both admitted and excluded here.\nAlso, the jury was instructed on Weil-McLain\u2019s sole proximate cause defense, over Nolan\u2019s objection, because the trial court found that sufficient evidence was admitted to allow the jurors to find that Weil-McLain\u2019s boilers did not cause Clarence\u2019s mesothelioma. The majority does not assert that the submission of this instruction was an abuse of the trial court\u2019s discretion. See Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101-02 (1995). After being appropriately instructed, the jury returned a verdict in favor of Nolan, rejecting Weil-McLain\u2019s sole proximate cause defense.\nBased on my review of the record and the evidence that Weil-McLain claims should have been admitted in its request for a new trial, I maintain that sufficient evidence was admitted, if believed by the jury, to conclude that Clarence\u2019s exposure to other asbestos sources, especially to amphibole-containing pipe covering and block insulation, was the sole proximate cause of his disease. Thus, a new trial is not warranted because Weil-McLain was able to receive a fair, albeit not perfect, tried in spite of the trial court\u2019s ruling. Thus, the ruling was harmless error in this case, and I would affirm the judgment of the appellate court on this limited ground. Accordingly, I must respectfully dissent from the result reached by the majority, despite my agreement with its analysis of the other substantive legal issues raised in this appeal.", "type": "dissent", "author": "JUSTICE KILBRIDE," } ], "attorneys": [ "Richard C. Godfrey, Scott W. Fowkes, Mark J. Nomellini and Jennifer M. Rhodes, of Kirkland & Ellis, LLP, and Edward J. McCambridge, Paul E. Wojcicki and Cameron D. Turner, of Segal, McCambridge, Singer & Ma-honey, all of Chicago, for appellant.", "Michael E Cascino, of Cascino Vaughan Law Offices, Ltd., and David A. Novoselsky and Leslie J. Rosen, all of Chicago, for appellee.", "Victor E. Schwartz, Mark A. Behrens, Wendy L. Williams and Christopher E. Appel, of Shook, Hardy & Bacon, L.L.E, of Washington, D.C., for amici curiae Illinois Manufacturers\u2019 Association et al.", "Steven P. Sanders and Lisa A. Larkin, of Williams, Venker & Sanders LLC, of St. Louis, Missouri (David B. Siegel, Clifton S. Elgarten and Paul W Kalish, of Crowell & Moring LLP, of Washington, D.C., of counsel), for amicus curiae Caterpillar Inc.", "Herbert L. Zarov, Richard F. Bulger and Craig A. Woods, of Mayer, Brown, Rowe & Maw LLR of Chicago, for amici curiae Chamber of Commerce of the United States of America et al.", "John D. Wendler, Noel L. Smith, Carolyn M. Husmann, Elizabeth A. Hunot, Alex Belotserkovsky and Kathryn E Morgan, of Helper, Broom, MacDonald, Hebrank, True & Noce, LLC, of Edwardsville, for amicus curiae Illinois Association of Defense Trial Counsel.", "Robert H. Riley and Joshua D. Lee, of Schiff Hardin LLI^ of Chicago, for amicus curiae Owens-Illinois, Inc.", "Kathy Byrne, of Cooney and Conway, of Chicago, for amici curiae Illinois Trial Lawyers Association and the Illinois AFL-CIO.", "Janice Pennington and Edmond L. Martin, of Baron & Budd, EC., of Dallas, Texas, for amici curiae Plumbers and Pipefitters Local 551 and Laborers Local 100." ], "corrections": "", "head_matter": "(No. 103137.\nSALLY NOLAN, as Executrix of the Estate of Clarence Nolan, Appellee, v. WEIL-McLAIN, Appellant.\nOpinion filed April 16, 2009.\nRehearing denied June 11, 2009.\nRichard C. Godfrey, Scott W. Fowkes, Mark J. Nomellini and Jennifer M. Rhodes, of Kirkland & Ellis, LLP, and Edward J. McCambridge, Paul E. Wojcicki and Cameron D. Turner, of Segal, McCambridge, Singer & Ma-honey, all of Chicago, for appellant.\nMichael E Cascino, of Cascino Vaughan Law Offices, Ltd., and David A. Novoselsky and Leslie J. Rosen, all of Chicago, for appellee.\nVictor E. Schwartz, Mark A. Behrens, Wendy L. Williams and Christopher E. Appel, of Shook, Hardy & Bacon, L.L.E, of Washington, D.C., for amici curiae Illinois Manufacturers\u2019 Association et al.\nSteven P. Sanders and Lisa A. Larkin, of Williams, Venker & Sanders LLC, of St. Louis, Missouri (David B. Siegel, Clifton S. Elgarten and Paul W Kalish, of Crowell & Moring LLP, of Washington, D.C., of counsel), for amicus curiae Caterpillar Inc.\nHerbert L. Zarov, Richard F. Bulger and Craig A. Woods, of Mayer, Brown, Rowe & Maw LLR of Chicago, for amici curiae Chamber of Commerce of the United States of America et al.\nJohn D. Wendler, Noel L. Smith, Carolyn M. Husmann, Elizabeth A. Hunot, Alex Belotserkovsky and Kathryn E Morgan, of Helper, Broom, MacDonald, Hebrank, True & Noce, LLC, of Edwardsville, for amicus curiae Illinois Association of Defense Trial Counsel.\nRobert H. Riley and Joshua D. Lee, of Schiff Hardin LLI^ of Chicago, for amicus curiae Owens-Illinois, Inc.\nKathy Byrne, of Cooney and Conway, of Chicago, for amici curiae Illinois Trial Lawyers Association and the Illinois AFL-CIO.\nJanice Pennington and Edmond L. Martin, of Baron & Budd, EC., of Dallas, Texas, for amici curiae Plumbers and Pipefitters Local 551 and Laborers Local 100." }, "file_name": "0416-01", "first_page_order": 428, "last_page_order": 476 }