Asbestos Instructions

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Beske v. Geogia Pacific & Union Carbide 05 L 3923

January, 2007 wrongful death/mesothelioma allegedly contracted from “ready mix”, a dry wall sanding product. Verdict for the defendants based upon defense of product identification and proximate cause.

IPI 1.01 Preliminary Cautionary Instructions

The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party should receive your same fair consideration.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 – Evidence Deposition

The sworn testimony of several witnesses was presented by videotape and/or the reading of their testimony. Also, the sworn testimony of a witness was presented by video-conferenced live testimony. You should give this testimony the same consideration you would give it had the witness personally appeared in court.

IPI 3.01 Rulings and Remarks of the Court

Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not affect the credibility of the witness.

IPI 3.04 Circumstantial Evidence

A fact may be proved by circumstantial evidence. Circumstantial evidence consists of the proof of facts or circumstances which leads to a reasonable inference of the existence of other facts sought to be established.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not affect the credibility of the witness.

IPI 3.07 Limited Purpose

Evidence that was received for a limited purpose should not be considered for any other purposes.

IPI 10.01 Negligence—Adult—Definition

When I use the word “negligence” in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

IPI 10.02 Ordinary Care—Adult—Definition

When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

IPI 10.04 Duty to Use Ordinary Care—Adult—Defendant

The Plaintiff in this case is: Gloria Breske, for herself and as Administrator of the Estate of John Breske, Deceased

The Defendants in this case are: George Pacific Corporation Union Carbide Corporation

It was the duty of each defendant, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff’s-decedent, John Breske. That means it was the duty of the defendants to be free from negligence.

IPI 12.04 Concurrent Negligence Other Than Defendant’s

More than one person may be to blame for causing an injury. If you decide that a defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

12.05 Negligence—Intervention of Outside Agency

If you decide that a defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.

IPI 15.01 Proximate Cause

When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it causes the injury.

IPI 20.01 – ISSUES – Negligence [note: 20.01.01 inapplicable in straight negligence action here]

The Plaintiff in this case is: Gloria Breske, for herself and as Administrator of the Estate of John Breske, Deceased

The Defendants in this case are: George Pacific Corporation Union Carbide Corporation

The plaintiff claims that John Breske was injured, and that the defendants were negligent in one or more of the following respects:

Produced asbestos products that they knew to be harmful without adequate warnings to others such as the Plaintiff;

Failed to issue adequate warnings to the decedent, John Breske of the dangerous characteristics of the asbestos within their products;

Failed adequately inform John Breske about reasonably safe and sufficient wearing apparel and proper protective equipment and appliances while using asbestos within their products;

Failed to place sufficient warnings on their containers of said asbestos and asbestos-related materials to adequately warn the handlers thereof of the dangers to health in coming in contact with said asbestos and asbestos materials;

Failed to exercise reasonable care to publish, adopt and enforce a safety plan and a safe method of handling and installing said asbestos and asbestos-related materials;

Failed to adequately investigate the dangerous propensities of their asbestos-containing product so as to enable them to issue an adequate warning when they knew or should have known of the dangers of the product.

The plaintiff further claims that one or more of the foregoing was a proximate cause of John Breske’s injuries.

The defendants deny doing any of the things claimed by the plaintiff, deny negligence in doing any of the things claimed by the plaintiff, and deny that any claimed act or omission on the part of any defendant was a proximate cause of John Breske’s injuries.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true.

IPI B21.02 BURDEN – COMPARATIVE

The plaintiff has the burden of proving each of the following propositions:

First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that the plaintiff’s-decedent, John Breske, was injured;

Third, that the negligence of the defendant was a proximate cause of the plaintiff’s injuries and death…

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the Plaintiff

On the other hand,, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.

31.09 Action for Wrongful Death and Survival Action Brought By Personal Representative

The plaintiff, Gloria Breske, brings this action in a representative capacity by reason of her being the administrator of the estate of John Breske, deceased.

She represents herself and her three daughters, Rosemarie Breske, Alexandra Breske and Samantha Breske, as well as the Estate of John Breske, the deceased.

They are the real parties in interest in this lawsuit, and in that sense are the real plaintiffs whose damages you are to determine if you decide for the administrator of the estate of John Breske.

IPI 31.04, 31.11 Measure of Damages—Wrongful Death—Adult Decedent—Widow and/or Lineal Next of Kin Surviving

As said before, Gloria Breske represents herself and her three daughters, Rosemarie Breske, Alexandra Breske and Samantha Breske, as well as the Estate of John Breske, the deceased with respect to two separate counts in this case.

The Wrongful Death Count relates to the Widow and Daughters; and

The Survival Count relates to the Estate of John Breske

If you decide for the plaintiff on the question of liability on the Wrongful Death Count, you must then fix the amount of money which will reasonably and fairly compensate the widow, Gloria Breske, and daughters, Rosemarie Breske, Alexandra Breske and Samantha Breske, for the “pecuniary loss” proved by the evidence to have resulted to widow and daughters from the death of the decedent.

“Pecuniary loss” may include loss of money, benefits, goods, services, and society. When I use the term “society” in these instructions, I mean the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.

Where a decedent leaves a widow and children, the law recognizes a presumption that the widow and children have sustained some substantial “pecuniary loss” by reason of the death. The weight to be given this presumption is for you to decide from the evidence in this case.

In determining pecuniary loss, you may consider what the evidence shows concerning the following:

What money, benefits, goods, and services the decedent customarily contributed in the past;
What money, benefits, goods, and services the decedent was likely to have contributed in the future;
Decedent’s personal expenses and other deductions;
What instruction, moral training, and superintendence of education the ecedent might reasonably have been expected to give his children had he
His age;
His sex;
His health;
His habits of industry, sobriety, and thrift;
His occupational abilities;
The marital relationship that existed between Gloria Breske and her husband, John Breske;
The relationship between the Rosemarie Breske, Alexandra Breske and Samantha Breske, and their father, John Breske

In determining “pecuniary loss” you may not consider the following:

The pain and suffering of the decedent;

The grief or sorrow of the widow and daughters.

IPI 30.01, 30.04, 30.04.01, 30.04.02, 30.05, 30.05.01, 30.06, 30.07, 31.10 Damages—Survival Action

If you decide for the plaintiff on the question of liability on the Survival Count, you must then fix the amount of money which will reasonably and fairly compensate the Estate for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant during the period between the time of the decedent’s injuries and the time of his death, taking into consideration the nature, extent, and duration of the injury:

The reasonable expense of necessary medical care, treatment, and services received.

The pain and suffering experienced as a result of the injuries.

The disfigurement resulting from the injury experienced by John Breske.

The loss of a normal life experienced by John Breske. (When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life);

Whether any of these elements of damages has been proved by the evidence is for you to determine.

IPI 31.13/34.04 Mortality Tables as Evidence of Damages—Wrongful Death Case

If you find for the plaintiff, then in assessing damages you may consider how long Gloria Breske will be likely to sustain pecuniary losses as a result of John Breske’s death, considering how long John Breske was likely to have lived and how long Gloria Breske and their three children are likely to live.

According to the table of mortality in evidence. The life expectancy of a male aged 51 is 27.7 years. This figure is not conclusive. It may be considered by you in connection with other evidence relating to the probable life expectancy of the plaintiff in this case, including evidence of her occupation, health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average. These figures are not conclusive. They are the average life expectancy of persons who have reached those ages. They may be considered by you in connection with other evidence relating to the probable life expectancies of the decedent including evidence of the decedent’s health, habits and activities, bearing in mind that some persons live longer and some persons live less than the average.

In calculating the amount of these pecuniary losses consisting of money, benefits, goods or services, you must determine their present cash value. “Present cash value” means the sum of money needed now which, together with what that sum may reasonably be expected to earn in the future, will equal the amounts of those pecuniary losses at the times in the future when they will be sustained.

Damages for loss of society are not reduced to present cash value.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for the defendant on the question of liability, you will have no occasion to consider the question of damages.

IPI 41.03

The rights of the defendants, George Pacific Corporation and Union Carbide Corporation, are separate and distinct. Each is entitled to a fair consideration of its own defense and you will decide each defendant’s case separately as if it were a separate lawsuit. Each defendant’s case must be governed by the instructions applicable to that case.

IPI B45.01 – FORMS OF VERDICT – COMPARATIVE

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdict are supplied with these instructions. After you have reached your verdicts, fill in and sign the appropriate forms and return them to the court. Your verdicts must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The parties in this case are:

The Plaintiff in this case is: Gloria Breske, for herself and as Administrator of the Estate of John Breske, Deceased

The Defendants in this case are: George Pacific Corporation Union Carbide Corporation

If you find for the Plaintiff, Gloria Breske against the defendants, Georgia-Pacific and Union Carbide, then you should use Verdict Form A.

If you find in favor of the defendants, Georgia-Pacific or Union Carbide, then you should use Verdict Form B.

A “Special Interrogatory” is supplied with these instructions. After you have reached a verdict, fill in and sign the Special Interrogatory and return it to the court along with the forms of verdict. The Special Interrogatory must be signed by each of you.

IPI B45.01.A – VERDICT FORM A

VERDICT FORM A

We, the jury, find for Plaintiff, Gloria Breske and Estate of Breske, and against the following defendant or defendants:

Georgia Pacific YES_____ NO_____

Union Carbide YES_____ NO_____

We further finding the following:

First: We assess plaintiff’s total damages in the sum of $_____________, itemized as follows:

WRONGFUL DEATH COUNT

Pecuniary loss sustained by Gloria Breske as a result of

John Breske’s death: $_______________

Pecuniary loss sustained by John Breske’s three children,

Rosemarie Breske, Alexandra Breske & Samantha

Breske as a result of John Breske’s death: $_______________

SURVIVAL COUNT

From the time of his diagnosis in September, 2004

until his death in February, 2005:

Loss of a normal life experienced. $_______________

Pain and suffering experienced $_______________

Reasonable expense of necessary Medical Care, Nursing

Care, Treatment, and Services received by John Breske $_______________

PLAINTIFF’S TOTAL DAMAGES…………………………………………$_______________

Second: Assuming that 100% represents the total combined negligence of all persons

or entities whose negligence proximately caused the decedent’s injury,

we find the percentage of such negligence attributable to each as follows:

Georgia Pacific ________%
Union Carbide ________%

TOTAL………………………………….. …100%

Instructions to Jury: If you find that any defendant is not liable to the plaintiff,

then you should enter a zero (“0”) as to that party.

[Signature Lines ]

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*IPI4501.C

VERDICT FORM B

We, the jury, find for the defendants, Georgia-Pacific and Union Carbide, and against the plaintiff, Gloria Breske, for herself and as administrator of the Estate of John Breske.

[Signature Lines ]

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(Foreperson)

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IPI – NON-STANDARD – SPECIAL INTERROGATORY

SPECIAL INTERROGATORY

Do you find that Union Carbide issued an adequate warning to others regarding the potential health risks of asbestos?

YES __________ NO ____________-

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(Foreperson)

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