Berry v. American Standard, Inc.

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State: Illinois

Court: 5th District Appellate

Docket No: 5-06-0621 Rel

Case Date: 05/19/2008

Preview:NO. 5-06-0621
N O T IC E Decision filed 05/19/08. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ___________________________________________________________________________ LINNIE KATHRYN BERRY, on Her Own Behalf and as Personal Representative of the Estate of Howard L. Berry, Deceased, Plaintiff-Appellant, ) Appeal from the

disposition of the same.

) Circuit Court of
) Crawford County. )

v. AMERICAN STANDARD, INC.,
AMERICAN WATER WORKS SERVICE COMPANY, INC., ARKLA INDUSTRIES, INC., GARLOCK SEALING TECHNOLOGIES, LLC, G.W. BERKHEIMER COMPANY, INC., INDUSTRIAL CONTRACTORS, INC., JOHN CRANE, INC., LENNOX INDUSTRIES, INC., MARATHON OIL COMPANY, SEALING EQUIPMENT PRODUCTS COMPANY, UNION CARBIDE CORPORATION, and THE WHIRLPOOL CORPORATION,

) ) ) No. 04-L-1 )

) ) ) ) ) ) ) ) ) ) ) ) ) Honorable Kimbara G. Harrell and ) Honorable Stephen G. Sawyer, Defendants-Appellees. ) Judges, presiding. __________________________________________________________________________ JUSTICE WELCH delivered the opinion of the court: On January 2, 2004, Howard and Linnie Kathryn Berry filed in the circuit court of Crawford County a complaint against 47 defendants, seeking damages resulting from Howard Berry's exposure to asbestos on various job sites. Howard Berry had been diagnosed with terminal mesothelioma on September 23, 2003, with a life expectancy of between 8 and 18 months. On January 21, 2004, the plaintiffs' counsel served upon the defendants a notice that Howard's evidence deposition would be taken on February 25, 2004. The defendants

1

objected and requested that a discovery deposition take place first. Accordingly, Howard's discovery deposition was scheduled for March 16, 2004. Due to Howard's long employment history and the number of defendants seeking to question him, the discovery deposition was extended by agreement to March 22, 2004. Again, questioning could not be completed, and the parties could not agree to another extension. Accordingly, in May 2004, the defendants filed motions with the court to extend the discovery deposition. These motions were heard on May 12, 2004, and the court granted the defendants 4 additional days within the following 30 days in which to take Howard's discovery deposition. Howard's evidence deposition was to be taken within seven days of the receipt of expedited transcripts of the completed discovery deposition. On May 21, 2004, the plaintiffs filed a motion for a protective order and/or an order limiting the time allotted for the continuation of Howard's discovery deposition. Attached to the motion was the affidavit of Howard's physician stating that Howard could endure no more than three hours a day of testimony for a total of no more than seven hours, which would include the evidence deposition. The evidence deposition was expected to take no more than 3

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