Cook County Jury Awards $12.3 Million to Family of Insulator Who Died of Mesothelioma at 59

James Kevin Barry was a journeyman insulator who had worked in the insulation trade since 1948. In July 1992 he began to have shortness of breath. A thoracoscopy showed fluid building up in his lungs, and he was diagnosed with mesothelioma, a cancer of the lining of the chest wall and the surface of the lung. In October 1992 he sued Owens-Corning Fiberglas Corporation and 18 other companies whose asbestos products he said he had worked with.

His illness moved quickly. Barry went through two five-day hospital stays for chemotherapy, which caused nausea and vomiting and did not work. He then agreed to an experimental treatment, an infusion of tumor necrosis factor paired with radiation five days a week for six weeks. The side effects included high fever, chills, body aches and a racing heart. He felt some relief, but by February the tumor was growing again and had spread into the abdomen. Every few days, doctors drew off as much as a gallon of fluid with a long needle. Barry lost weight, grew weak, and went into hospice care at home. He died in April 1993, six months after he filed suit, at age 59. His wife, Eileen, took over the case as executor of his estate, and the complaint was amended to add wrongful death and survival claims on behalf of Eileen and the couple's seven children.

Before trial, every defendant except W.R. Grace and Owens-Corning had been dismissed, through settlements or summary judgment. Grace settled after the trial began, which left Owens-Corning as the only defendant before the Cook County jury. Cooney & Conway of Chicago represented the estate, with William R. Fahey, John D. Cooney, James Hopkinson and Kathy Byrne named in the appellate record as counsel.

The jury returned an itemized verdict totaling $12,319,620.96. The award for Barry's own injuries while he lived came to $4,638,430.96, including $4 million for pain and suffering. The jury added $331,190 for lost income and services and $500,000 for Eileen's loss of society during his illness. For the wrongful death claim, it awarded $3 million to Eileen and between $500,000 and $750,000 to each of the seven children, $6.85 million in all. After the court credited the settlements with the other defendants, the judgment stood at $11,000,120.96.

Owens-Corning appealed and attacked the size of the award, the videotape of Barry's thoracoscopy shown to the jury, the life-expectancy instruction, and the verdict form that listed a separate line for each survivor. The Illinois Appellate Court, First District, rejected nearly all of it. It found nothing shocking in the 90-second excerpt, and it held the permissive instruction harmless. The court agreed that the verdict form should not have listed individual awards, because the Wrongful Death Act has the judge divide a single award, but found no sign the lines inflated the total. It declined to compare the award with other asbestos verdicts and refused to order a remittitur or a new trial. Comparing the award with Holston, a wrongful death and survival verdict the Illinois Supreme Court had recently upheld for a husband and two children, the court noted that this family had a widow and seven children. On June 3, 1996, it affirmed the judgment on the verdict, and it denied rehearing on July 30, 1996.