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Motion 17 - product liability plaintiffs motion for new trial

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Plaintiffs' Post-Trial Motion as to Defendant, M&O Insulation

Plaintiffs move pursuant to 735 ILCS 5/2-1202(b) for a new trial against M&O on the issues of damages only, or, in the alternative, for a new trial on all issues, and in support thereof, state as follows:


1. Throughout the discovery stage of this case M&O maintained that it had never done any insulating work in the City of Springfield (Ex. A, O'Heir Dep at 47), let alone any insulating work at City, Water, Light and Power (”“CWLP‘’), the power plant where Tony Caruso was exposed to asbestos. (Ex. A at 47; Ex. B, O'Heir 6/13/02 at 123-133; Ex. C, O'Heir Aff. of 1/11/02; Ex D, Castellarin 6/13/02 at 65-68).

2. In addition, M&O repeatedly stated that it had no documents to support its contention that it had never used asbestos-containing insulation products. (Ex. E, M&O's SJ Reply Brf 3/15/02 at 5; Ex. C; Ex F, O'Heir Aff. of 5/17/02).

3. In deposition testimony, M&O's CFO, Peter Castellarin stated that that the only way it could ”“100 percent verify‘’ whether it performed work at CWLP was to rely on the recollections of its CEO, Richard O'Heir. (Ex. G, Castellarin Dep at 30-33). M&O claimed to have destroyed its job records and purchasing records. (Ex. D at 64-65).

4. On April 12, 2002, Plaintiff disclosed to all counsel a series of documents received from CWLP. (Ex. H, Letter). Various documents within that disclosure showed that M&O had worked at CWLP. The documents indicated both bids submitted by M&O to CWLP and materials utilized in the performance of the ultimate contracts for those jobs by M&O. (Ex. I, M&O Trial Exhibit 5).

5. After receiving the incriminating documents discovered by Plaintiffs, M&O admitted to working jobs at CWLP and disclosed portions of ”“job book‘’ indices enumerating various dates upon which M&O had performed such work. (Ex. J, P's Trial Ex. 605). Exhibit 605 contained photocopies of the job book entries and a Supplemental Production Response of M&O that was prepared from M&O records.

6. M&O did not provide this disclosure until May 21, 2002 -- only thirteen (13) days prior to the scheduled trial date of June 3, 2002. (See Cert. Of Service for Ex. J).

7. M&O's disclosure directly contradicted the sworn testimony of Castellarin (whom M&O had previously stated was the person at M&O ”“responsible for the maintenance of records‘’ (Ex. E at 5)), that, other than time sheets, ” “corporate ledgers‘’ and ”“minute books,‘’ M&O had no documents to show where it worked and what products it used in the early 1970s.

8. M&O's disclosure also contradicted the sworn testimony of M&O; namely, that it had not done any work at CWLP, or in the City of Springfield. (See para. 1).

9. At trial it became evident that M&O not only knowingly possessed the information contained in the May 21, 2002 disclosure for the entire preceding nineteen (19) months of litigation, but in addition, M&O still possessed responsive information which, as of this filing, it has still not disclosed to Plaintiffs.

10. On July 10, 2002, this Court entered an order granting M&O a directed verdict at the close of Plaintiffs' evidence. (Ex. K, Order). When it announced orally that it was granting M&O's motion, the Court stated that ”“the evidence just isn't there [as to M&O]. There's been no evidence that [M&O] did buy, sell any asbestos.‘’ (Ex. L, Trial 6/19/02 at 115).

11. M&O's continued concealment of information and documents provides a presumption that the evidence it has failed to produce is unfavorable to it. Tepper v. Camp, 398 Ill. 496 (1948) ; cited in Board of Regents of Regency Universities v. Illinois Educational Labor Relations Board, 208 Ill.App.3d 220, 233 (4th Dist. 1991).

12. While Plaintiffs are unaware of the full extent of the documents M&O has concealed the Court should presume that the documents and information M&O possesses show that it used asbestos-containing products at CWLP.


13. Disclosure rather than concealment is the purpose of discovery. Monier v. Chamberlain, 35 Ill.2d 351 (Ill. 1966).

14. A party who unreasonably fails to comply with discovery may be barred from maintaining a defense related to that issue.

15. The decision to grant a motion for a new trial rests within the discretion of the trial judge. Newly discovered evidence may warrant the granting of a new trial if it is of such conclusive character that it will likely change the result if a new trial is granted. Ogg v. City of Springfield, 121 Ill.App.3d 25, 41 (4th Dist. 1984).

16. M&O's continued concealment of information and documents provides a basis for a new trial in this matter. Pursuant to Rule 219(c)(iii), M&O should be barred from maintaining a defense as to liability as a sanction for its concealment of important evidence.


A. M&O knew it had worked in Springfield and at CWLP but withheld this evidence.

17. M&O maintained that it had no documents showing where it worked, or the products it used. M&O also stated that O'Heir was the only M&O employee who could testify to M&O's activities.

18. In his deposition, O'Heir stated that M&O had not done any work at CWLP. (Ex. A at 45, 47). O'Heir further stated that M&O had never even done work in the City of Springfield. (Ex. A at 47).

19. Not until Plaintiffs were able to find documentation proving M&O had lied when it said it was not at CWLP (and therefore had lied about never having performed any work in the City of Springfield), did M&O finally admit it had done insulation work at CWLP. (Ex. F). Even more absurd, during the trial of this matter O'Heir admitted that he hadpersonally been to CWLP for M&O jobs on at least five (5) separate occasions. (Ex. B at 125).

20. At trial, M&O took the position that even though its CEO had lied in his deposition, and it had lied in its discovery responses, its discovery deception was innocently caused by its misunderstanding as to the proper ”“definition‘’ or name of the single jobsite where Tony Caruso was exposed. (Ex. D at 65-70; Ex. B at 129-130). Specifically, M&O stated that it recognized the power plant in Springfield only as ”“Dallman‘’ or ”“Dallman Station‘’ and was unable to identify that plant by Plaintiffs' use of its common name, ”“City, Water, Light and Power.‘’ (Ex. D at 65-70). M&O's ”“definition‘’ defense has no merit.

21. Depositions taken in this matter on August 27, 2001 revealed that the City of Springfield power generation plant consisted of three physical plants; ” “Lakeside‘’ plants 1 and 2, and the ”“Dallman‘’ plant (Ex. M, Cunningham Dep excerpts; Ex. N, Partain Dep excerpts; Ex O, Seipel Dep excerpts). These plants operated as the city's sole power generation station, named ”“City, Water, Light and Power.‘’ M&O's attorneys attended these depositions and had full knowledge of these facts.

22. At trial, Tom Bee testified that when you enter the compound of CWLP, the first building you see is the ”“Lakeside Power Plant‘’ and the words ”“City Water Light & Power‘’ in large letters across the front of that building. (Ex. R, Bee 6/14/02 at 80).

23. Castellarin (whom M&O claims is responsible for answering legal discovery on behalf of M&O), admitted at trial that he maintains constant communication with M&O's attorneys. (Ex. D at 59, 95). Castellarin also admitted that if M&O's attorneys had communicated to him what they had learned at the depositions and by visiting the CWLP plant for depositions, he would have been able to properly answer Plaintiffs' discovery. (Ex. D at 97).

24. Even if M&O's claim that it only knew CWLP as ”“Dallman‘’ were true, its own job books (produced by M&O for the first time at trial) demonstrated that it had performed at least eight (8) jobs in the City of Springfield, (Ex. J, Job Nos. 650, 1140, 1199, 1208, 1230, 1335, 1451, 1539).

25. More importantly, job no. 1451 refers not only to the ”“Dallman‘’ name that M&O claims to have recognized, but also lists the job as one performed at ”“City Water Light and Power Co.‘’ in Springfield, Illinois. (Ex. J).

26. Further evidencing M&O's deception is the simple fact that O'Heir knew that M&O had performed work at CWLP. At trial, O'Heir admitted that when M&O received the Complaint back in December of 2000 that he remembered being at the powerplant in Springfield (Ex. B at 123) and had been there on at least five (5) separate occasions. (Ex. B at 121, 125).

27. In addition, O'Heir acknowledged that two of the M&O jobs at CWLP had exceeded $500,000 and that ”“a $500,000 job is a good-sized job any time.‘’ (Ex. B at 157).

28. M&O knowingly attempted to conceal from Plaintiffs for the entire nineteen (19) months of discovery the fact that its CEO had a recollection of being at the plant on at least five occasions and the fact that it had documents evidencing that it had performed jobs at the plant, two of which exceeded $5000,000 in amount.

B. At trial, M&O revealed that it has additional documents and information that it has still not disclosed to Plaintiffs.

29. Plaintiff propounded interrogatories and requests for documents on M&O on July 2, 2001. (Ex. P, M&O Request for Production Answers; Ex. Q, M&O Interrogatory Answers).

30. Interrogatory 12 sought to discover whether any officer, employee or agent of M&O ever called upon or visited the premises of any facility of CWLP. Interrogatory 13 sought to discover whether M&O had ever communicated with CWLP regarding the purchase, sale, shipment, installation or use of insulation products , including asbestos products.

31. In lieu of answering Interrogatories 12 and 13, M&O objected by incorporating its ”“definition‘’ defense, claiming that the jobsite ” “Springfield City, Water, Light and Power‘’ was an ambiguous term to M&O. (Ex. B at 162-3).

32. Interrogatory 12:

(a)At trial, for the first time and directly contrary to his prior deposition testimony, O'Heir admitted that he had been to the CWLP plant on at least five (5) occasions. (Ex. B at 125).

(b)Though this information had been specifically requested by Plaintiffs' Interrogatory 12, M&O refused to provide an answer on the basis that the request was ”“ambiguous‘’ because it was confused as to the identity of the CWLP jobsite. (Ex. B at 160-164).

(c)If M&O refused to answer this simple interrogatory to avoid indicating its presence at CWLP, what other admissible information does M&O possess?

33. Interrogatory 13:

(a)At trial, the testimony of M&O's witnesses made it readily apparent that M&O possesses documents and answers responsive to interrogatory 13 that it continues to withhold from Plaintiffs and from this tribunal.

(b)Upon questioning related to page 1 of Exhibit 605 (Ex. J), O'Heir conceded that M&O relied on a ”“purchase order‘’ to obtain the date listed by M&O for job no. 650 on page 1 of its Supplemental Production Response served May 21, 2002:

Q. Looking at page 1 to the right of the entry Job Number 650, do you see the word ”“April‘’ and the number 1975?

A. Yes.

Q. What's the source of that information, if there is any?

A. I've already said that that's a purchase order number, or the date of a purchase order. (Ex. B at 145-6)


Q. And, of course, if the date really came from a purchase order, M&O would have had to have that purchase order it its possession on May 21 of “02 because that's the date of this document filed by M&O, correct?

A. Correct.

Q. Now, where is that purchase order?

A. I have no idea... (Ex. B at 153).

(c)The purchase order referenced by O'Heir was never produced to Plaintiffs though it is a document which communicates with CWLP regarding the purchase, sale, shipment or installation of insulation products.

(d)Furthermore, the existence of that purchase order, or any purchase order related to M&O's work at CWLP, is directly contrary to the statements made by M&O that no documents showing the products it used exist. (Ex. D at 64-5).

34. Despite the obligations imposed upon it to produce additional information and documents as they become available, M&O has never produced the purchase order to which O'Heir made reference, and, not that M&O has any credibility left at this point, M&O has made no effort to deny the natural inference that it has ”“purchase orders‘’ for the other jobs listed on the first page of its Supplemental Production Response. (Ex. J).

C. There was Evidence that only asbestos-containing insulation was available for M&O to use until at least 1975.

35. M&O has continued its contradictory track record by repeatedly asserting that asbestos-containing insulation was ”“banned‘’ in 1972 before M&O was incorporated and began business, or, in the alternative, that asbestos-containing insulation products were available but that M&O made a ”“conscious decision‘’ not to utilize those materials. (Ex. D at 72-78; Ex. B at 168-170, 174, 184-5).

36. In granting M&O's Motion for a Directed Verdict, this Court apparently relied upon those portions of Castellarin and O'Heir's testimony that support the assertions of M&O's counsel, and disregarded the evidence to the contrary.

37. There was evidence at trial which showed that if M&O was insulating prior to 1975 the only products available to it contained asbestos.

38. Mel Corbeil testified that asbestos-free products did not become available to the insulation industry until 1974 or 1975. (Ex. S, Corbeil 6/12/02 at 253).

39. Ellis Carlton, who worked for Sprinkmann Sons Corporation of Illinois (a seller and installer of insulation products ) testified that it was his company's custom to return to its warehouse any unused products from a job that could be utilized in future projects. (Ex. T, Carlton 6/12/02 at 193-195). In addition, Carlton stated that these ”“unused products ‘’ could remain in the warehouse for an additional five years in some instances. (Ex. T at 197-9, 225).

40. At the very least, the testimony of Corbeil and Carlton show that M&O was again lying when it said it had neverused asbestos-containing products. (See Ex. P; Ex. Q; Ex. D at 72-78; Ex. B at 184-5; Ex. C; Ex. F).

41. Castellarin testified that M&O began insulating in April of 1972 and continued to do so throughout 1972, 1973, 1974 and 1975, years in which, according to the testimony of Corbeil, only asbestos-containing products were available to industry. (Ex. D at 64-5). When deciding M&O's motion for a directed verdict, the Court must review the evidence in the light most favorable to Plaintiff, i.e., it must assume Corbeil's testimony is correct.

42. Of the documents that M&O recently disclosed to Plaintiffs, at least Job no. 650 shows that M&O sold products to CWLP in April of 1975 that would have contained asbestos. (See Ex. J).

43. Evidence existed at trial to support Plaintiffs' argument that M&O insulated at CWLP and that the products it used contained asbestos. This Court's grant of a directed verdict in M&O's favor was contrary to the evidence and therefore erroneous.

44. The purpose of a motion for a new trial is to give the trial court the opportunity to correct any error it made at trial. Gersch v. Kelso-Burnett Co., 272 Ill.App.3d 907 (1st Dist. 1995). Where the case is a close on the facts and the jury could have decided either way, any substantial error that may have tipped the scales calls for a new trial. Los Amigos Supermarket, Inc. v. Metropolitan Bank and Trust Co., 306 Ill.App.3d 115 (1st Dist. 1999).

45. In this case the jury could have believed that the work M&O performed at CWLP involved the use of asbestos-containing products. A jury finding in this regard would not have been beyond the weight of the evidence, especially considering the fact that M&O had yet to provide truthful testimony to any other aspect of Plaintiffs' case.


46. M&O's behavior in this litigation has been both contradictory and evasive. When it suits its purpose, M&O has withheld documents and information from Plaintiffs, or, made piecemeal disclosures that benefit its ever-changing legal positions.

47. Among the contradictions M&O has provided are the following:

(a)M&O has stated that it was not at CWLP or any other power plant in Springfield, yet Plaintiffs were eventually able to prove by both testimony and documentary evidence that M&O had at least nine (9) separate jobs there, two of which were among the largest jobs M&O had done anywhere.

(b)M&O stated that it had no documents to verify when it worked, where it worked, or the products used on jobs older than 1994, yet after Plaintiffs produced documents which it obtained from CWLP, M&O produced excerpts from what it calls its ”“job books‘’ going back to 1972.

(c)M&O stated that O'Heir was the only person who could testify about M&O's activities, yet Plaintiffs' demonstrated that his testimony is completely unreliable.

48. Plaintiffs demonstrated at trial that additional information and documents exist which have never been disclosed to Plaintiffs. This evidence (particularly purchase orders) would be of paramount importance to Plaintiffs' ability to prove M&O's liability for Tony Caruso's mesothelioma.

49. The Tepper case holds that when a party conceals evidence a presumption arises that that evidence is unfavorable to that party. Here, the presumption that arises is that the evidence M&O has withheld shows M&O utilized asbestos-containing materials in its work at CWLP in Springfield. Such evidence would warrant the granting of a new trial as it would undoubtedly alter the result - specifically, it would provide the very evidence that this Court stated ”“just isn't there.‘’ (Ex. L).

WHEREFORE, Plaintiffs request that this Court (1) enter a finding against M&O as to liability as a sanction for its discovery cheating and order a new trial on the issues of damages only, or, in the alternative, (2) order a new trial against M&O on all issues.

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