Most of Ronnie Startley’s on-the-job exposure to asbestos as a drywall finisher occurred in Alabama. But for three to four months in 1965, Startley worked on approximately 50 jobs in Chicago with his cousin Walter Startley, using several brands of drywall joint compound that contained asbestos.
Ronnie was diagnosed with mesothelioma in 2013, and he died a year later in Alabama, where the local statute of limitations blocked his estate’s claims.
According to Walter’s testimony during an evidence deposition in the Illinois lawsuit that Ronnie’s estate filed against Welco, the manufacturer of Wel-Cote, the joint compounds they used for Chicago projects in 1965 were “USG, Gold Bond, Bestwall and Wel-Cote,” but “Wel-Cote and Bestwall was the most we used.
”When asked whether he could recall having more jobs with “one product versus another,” Walter testified: “Well, I really can’t, because that’s a long time ago, but I remember the bags was being like gray-looking stuff and I imagine it would be Wel-Cote or — or Bestwall.”
After viewing a photo, Walter testified that the Bestwell bags were “lighter color brown or something.”The trial judge denied Welco’s motion for summary judgment.During the trial, Walter’s evidence deposition was played for the jury, minus the statement that “Wel-Cote and Bestwall was the most we used.”
When the estate finished presenting its evidence, the judge granted Welco’s motion for a directed verdict based on the “frequency, regularity and proximity” test adopted by Thacker v. UNR Industries, 151 Ill. 2d 343 (1992).
Reversing, the Illinois Appellate Court considered conflicting cases from other jurisdictions that “applied the frequency, regularity and proximity test to similarly vague testimony.”
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