Illinois Appeals Court Reverses $3.2 MM Asbestos Verdict: Contact With Product Capable of Releasing Fibers Not Enough To Establish Causation

In Krumwiede v. Tremco, Inc., 2020 IL App (4th) 180434, an Illinois appeals court reversed a $3.2 million award against a defendant-manufacturer in an asbestos case finding plaintiffs failed to meet the minimum threshold of evidence required to bring the question of causation before a jury. The decision ruled that plaintiffs must present more than evidence of frequent, regular, and proximate contact with a product that is capable of releasing asbestos to bring the question of causation before the jury.

Plaintiffs presented testimony of two of decedent’s co-workers that Decedent was exposed to asbestos from two Tremco products – “440 tape” and “mono caulk” –that Decedent worked with “just about every day” as a window glazier from approximately the mid-1950s until the early 1990s. Those co-workers denied, however, seeing any visible dust created from that work. Plaintiffs further presented the expert testimony of Dr. Arthur Frank. Dr. Frank opined that there was no scientific way to determine which exposure caused plaintiff’s disease and that “it is the cumulative exposure, the totality of the exposure . . . that causes the disease.” He further opined that “all of the exposures that [decedent] had from any and all products [including Tremco’s] of any and all fiber type would have contributed to his developing his mesothelioma.” This has been termed as the “cumulative exposure theory.”

Dr. Frank also testified that Tremco’s products were capable of releasing asbestos fibers because he never encountered an asbestos-containing product that would not release asbestos fibers, and that in his 40 years of experience he had “looked at” cases involving similar products and affirmed that they could release asbestos.

Notably, the panel found Dr. Frank’s testimony “remarkably similar to his testimony in McKinney.” In McKinney, 2018 IL App (4th) 170333, (brought by the same plaintiffs’ law firm and decided by the same appellate court) a welder filed suit against a welding-rod manufacturer alleging exposure to asbestos from the welding rods caused his mesothelioma. Plaintiff alleged exposure from the rubbing together of the welding-rods near his workspace. Dr. Frank testified that he never encountered a product that could not release asbestos. In McKinney, however, Dr. Frank testified that he further relied on welding-rod studies for the basis that the welding-rods were capable of releasing asbestos. Applying the asbestos causation standard as set forth by the Illinois Supreme Court in Thacker and Nolan, the McKinney court found that while the welding rods were capable of releasing asbestos, plaintiff failed to present evidence of exposure to respirable asbestos from defendant’s product to bring the question of causation before the jury.

In Krumwiede, Tremco appealed and argued, as defendant did in McKinney, that it was entitled to a judgment n.o.v., because plaintiff failed to present evidence of exposure to respirable asbestos fibers from the caulk or tape to establish that it was a substantial factor in causing decedent’s disease. As in McKinney, the court again found there was insufficient evidence to establish that plaintiff was exposed to asbestos such that it was not de minimis but was a substantial factor in causing his disease:

“In this case, even accepting that Tremco’s 440 Tape and Mono caulk were capable of releasing respirable asbestos fibers, the evidence was otherwise lacking with respect to the element of substantial factor causation. In particular, there is no evidence in the record showing when, and under what circumstances, Tremco’s products released respirable asbestos fibers, whether circumstances causing the release of respirable asbestos fibers were the type that would have been regularly encountered by decedent when using Tremco’s products, or whether the release of fibers from Tremco’s products was anything more than minimal.”

In addition to its substantial factor causation analysis, the panel reached several other issues not previously addressed in McKinney. First, while it appears that some level of actual exposure, more than de minimis, is required to meet the Thacker test, the panel agreed with Plaintiffs that they were not required to quantify the number of asbestos fibers to which decedent was exposed. The Panel also rejected Plaintiffs’ arguments that Dr. Frank’s cumulative exposure theory is contrary to Illinois law and substantial factor causation. (See our other posts on the cumulative exposure theory, here, here, and here.)

Krumwiede offers Illinois defendants a favorable application of causation law, consistent with Illinois’ current trend in asbestos cases. Practically speaking, this trend could also add the burden and cost of additional plaintiff experts who can opine as to the specific exposures from the products at issue.

Possibility That Product Contained Asbestos Not Enough to Create Triable Issue in California

Recently, in Berg v. Colgate, the Court of Appeal gave good news to manufacturers who dispute that their products contain asbestos. “It was not enough for plaintiffs to produce some evidence that [plaintiff] was exposed to a product that possibly contained asbestos.” Plaintiffs’ case against Colgate was dismissed when plaintiffs failed to provide sufficient evidence that plaintiff “was more likely than not exposed to asbestos contained in a product sold by Mennen.”

Colgate-Palmolive Company’s predecessor, the Mennen Company, manufactured a shave talc that plaintiff used from 1959 to 1962. Colgate adamantly disputes that the product contained asbestos. Further, Colgate argued plaintiff could not establish through reliable evidence that the talc plaintiff actually used contained asbestos.

Plaintiffs argued that all or virtually all of the Mennen talc that plaintiff used from 1959-1962 contained asbestos. First, plaintiffs put forth evidence that Mennen’s talc supply came from mines historically known (aka assumed) to be contaminated with asbestos. Next, they submitted a 1972 FDA test showing that Mennen talc contained 4% chrysotile asbestos and a 1976 test showing that Mennen talc manufactured in 1972 contained 2% tremolite asbestos. Last, plaintiffs’ expert tested Mennen talc samples which looked similar to the description of the cans plaintiff used. Plaintiffs’ expert alleged that the samples contained amphibole asbestos. From the combined evidence, plaintiffs’ expert opined to a reasonable degree of scientific certainty that the cans plaintiff used from 1959-1962 contained dangerous levels of asbestos.

The Court of Appeal was not convinced that a jury could conclude from plaintiffs’ evidence that it was more likely than not that the shave talc plaintiff used contained asbestos. Even assuming that some talc came from mines that contained some level of asbestos, plaintiffs “fail[ed] to a support a conclusion that all or most of the Mennen Shave Talc containers sold from 1959 to 1962 contained asbestos.” Notably, plaintiffs’ expert relied upon the FDA’s testing of cans that were manufactured at least 10 years after the time plaintiff used the product. What’s more, the testing plaintiffs’ expert personally conducted were on cans of an unknown origin date. Plaintiff’s testimony that the cans tested looked similar to the cans he used decades prior is insufficient.

Plaintiffs primarily relied on Lyons, where the court  found  “substantial evidence creating a triable issue as to whether Colgate’s Cashmere Bouquet talc contained asbestos that may be found to have been a substantial cause of plaintiff’s mesothelioma.”  The Court of Appeal disagreed, distinguishing Lyons on several grounds.  In Lyons, plaintiff used the product for over 20 years. Additionally, Colgate did not dispute that the product contained asbestos and there was no evidence of any other source of asbestos exposure. Taken together, this was enough evidence to “create more than an unsupported possibility” that the product exposed plaintiff to asbestos.

Here, unlike Lyons, plaintiffs’ expert was unable to explain rationally “or even commonsensically logical” how he determined Mennen cans sold during the applicable time contained asbestos. Unlike Lyons, plaintiffs allege additional exposure to asbestos from other products. A final, distinguishing factor was that plaintiff used Mennen shave talc for a short period of time, 1959-1962, and only between 4-6 cans during that period. “Thus, [plaintiff’s] eventual development of mesothelioma provides much weaker support for an inference that the shave talc he used contained asbestos.”

Ultimately, the Court of Appeal held that plaintiffs failed to carry their evidentiary burden. “At best, plaintiffs presented evidence that the shave talc [plaintiff] used exposed him to asbestos, but they failed to present evidence upon which a reasonable jury could conclude that any such exposure was more likely than not.” This case will provide helpful legal precedent to ensure that plaintiffs satisfy their evidentiary burden to demonstrate the product was more likely than not to contain asbestos.

Bad Bill Becomes Law: Time Limits on Mesothelioma Plaintiff Depositions Enacted in California

California Governor Gavin Newsom has signed Senate Bill 645 into law. This law imposes stringent time limits on asbestos defendants’ deposition examination of a mesothelioma or silicosis plaintiff. (See prior post here.)

SB 645’s passage comes after a summer of highly emotional testimony in the legislature by the proponents of the bill. It was ordered to a third and final reading before the California Assembly in July, after passing quickly through the California Senate in June.

The new law places a 7-hour limitation on defendants’ deposition examination of a mesothelioma plaintiff if a licensed physician provides a declaration attesting both that the plaintiff has mesothelioma, and that there is substantial medical doubt of survival beyond 6 months. Defendants may move the court for an additional 3 hours if more than 10 defendants appear at the deposition, and an additional 7 hours if more than 20 defendants appear at the deposition. However, the court may only grant even these minimal extensions of time upon a finding that the extension is in the interest of fairness, and that the health of the plaintiff is not endangered by the grant of additional time.

SB 645 is even worse than California’s prior law, which allowed for 7 hours of deposition testimony, plus an extension of up to 20 hours of total testimony in the trial court’s discretion. The law also seems to override case management orders in counties with heavy asbestos calendars, such as Alameda and Los Angeles counties, where the case management orders regularly provided up to 20 hours for defendants’ deposition testimony in asbestos cases.

Last Defendant at Trial, You Are Not Alone: Apportionment Under New Jersey Law

Last week in the Rowe v. Bell & Gossett decision, a unanimous New Jersey Supreme Court found that an asbestos defendant at trial may demonstrate settling co-defendants’ liability and their share of fault by using the co-defendants’ answers to interrogatories and corporate representative depositions from the pending or prior asbestos litigations. This evidence, along with plaintiff’s testimony on product usage and plaintiff’s own expert’s testimony on cross-examination, was sufficient to show that each settling defendant’s product was a substantial factor in causing injury and allow a jury to allocate fault. Thus, the court has provided guidance on how and not just that a remaining defendant may reduce its fault at trial. Under New Jersey’s joint tortfeasor law, as in many other jurisdictions, when two or more persons are jointly and severally liable for the same tort and injury, the jury must allocate fault between and among the tortfeasors, regardless of whether they all remain parties to the litigation.

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The Supreme Court’s decision will require plaintiffs to fully understand the relative responsibilities among defendants before risking a settlement with some but not all of them. This will undoubtedly delay or completely prevent settlement opportunities, especially for parties of products that plaintiff most regularly used during his lifetime.

From a defense perspective, this decision endorses a streamlined approach for proving cross-claims at trial. non-settling defendant must simply be careful to timely and fully disclose its intent to demonstrate such non-parties’ liability at trial. With proper notice, the non-settling defendant may use the settling defendants’ written interrogatory answers, corporate representative depositions, responses to admissions, prior trial testimony, if any, or call them as a live witness if the content of these statements were made “against the party’s interest.”

In Rowe, plaintiff argued that interrogatory responses and corporate representative depositions were impermissible hearsay that could only be used, if at all, against the declarant co-defendants, not against plaintiff. The Supreme Court rejected that argument, finding that these statements were admissible under New Jersey Rule of Evidence 803(c)(25) because they were made by the corporate defendant and were “so far contrary to the [corporation’s] pecuniary, proprietary, or social interest, or so far tended to subject [that defendant] to civil or criminal liability . . . that a reasonable person in [that defendant’s] position would not have made the statement unless the person believed it to be true.” In Rowe, “when the relevant statements were made, each declarant was a defendant in this case or in other asbestos product liability cases.” Moreover, such statements admitted corporate relationships including potential successor liability, the manufacture or sale of goods containing asbestos, or the manufacture or sale of goods without warnings related to asbestos.

The Appellate Division had ruled that these statements were not “against interest” because “the existence of asbestos-containing products and the absence of warnings are objective, well-known historical facts that the settling defendants could not avoid acknowledging in the face of incontrovertible proof.” The Supreme Court rejected this argument, noting that statements against interest need not be on novel or controversial issues, or the only proof of a given claim. Thus, these statements were properly admitted by the trial judge and considered by the jury to apportion fault.

Ninth Circuit Takes Out Take-Home Asbestos Case, Requires Evidence of Substantial Exposure

Asbestos defendants—especially those in take-home exposure cases—should note the Ninth Circuit’s recent opinion in Stephens v. Union Pacific Railroad Company. There, the court affirmed that plaintiffs cannot prove substantial-factor causation without establishing “substantial exposure to the relevant asbestos for a substantial period of time.” While the decision’s reach might be limited—it is, after all, a federal-court interpretation of Idaho law—it provides a sound roadmap for raising evidentiary challenges in substantial-factor asbestos cases.

Stephens involved alleged take-home exposure from an Idaho Union Pacific roundhouse. William Stephens’s father had worked at the facility when Stephens was a child, and Stephens testified that his father’s work clothes had been dusty when returning home. He also testified that he had visited his father at work on a few occasions and had seen men removing and replacing insulation on steam engines. Union Pacific admitted that it probably used asbestos-containing insulation on steam engines at that time, but disputed that steam engines had ever been serviced at Stephens’s father’s workplace. The court recognized that whether Stephens had take-home exposure was “close question” on this evidence, but bypassed that issue.

Instead, the court focused on whether Stephens had sufficient evidence to establish that take-home exposure to Union Pacific asbestos was a substantial factor in causing his mesothelioma. The court wrote that the “liberal” substantial-factor standard “is not without limit.” Instead, the court noted that substantial-factor causation require asbestos plaintiffs to demonstrate “substantial exposure to the relevant asbestos for a substantial period of time.” “Minimal exposure,” the court wrote, is “insufficient” to establish that a defendant’s asbestos was a substantial factor in an injury.

The Ninth Circuit ruled that Stephens’s evidence did not meet that standard. The court reasoned that Stephens had no evidence that his father frequently worked around asbestos, and therefore no evidence that the dust on his father’s clothes contained asbestos. The court observed that Stephens offered no evidence about his father’s duties at the Union Pacific facility, and none that his father worked with or around asbestos. Without evidence that his father worked around asbestos, Stephens could not establish that his father regularly brought asbestos dust home on his clothes. While Stephens’s experts testified that he would have had significant exposure from his father’s clothes, and that that level of exposure would have been a substantial factor in his mesothelioma, the court rejected both opinions because there was insufficient evidence that Stephens’s father had actually worked around asbestos.

While Stephens may directly control only Idaho-law cases in the Ninth Circuit, it nevertheless provides a sound roadmap for defendants in any jurisdiction in cases with questionable or sporadic evidence of exposure.

Gordon & Rees Trial Teams Win Two Defense Verdicts in One Week

In the span of a single week, Gordon Rees Scully Mansukhani  trial teams won  defense verdicts on behalf of clients Hennessy Industries, LLC in California and Colgate-Palmolive in Kentucky. These results demonstrate not only the skill and dedication of the firm’s  trial lawyers, but the tremendous depth of the firm’s  trial teams, enabling them to defend multiple clients in diverse jurisdictions, check in our homepage for more info.

Verdict # 1 – Hennessy Industries Wins Los Angeles Asbestos Trial

On July 29, Gordon & Rees attorneys Bob Rich and Rob Rodriguez won a complete defense verdict on behalf of Hennessy after a seven-week jury trial in Los Angeles Superior Court. Plaintiff Randolph Morton sought to hold Hennessy and Pneumo Abex liable for his stage IV lung cancer. There was no evidence of any smoking history. Mr. Morton alleged that his lung cancer was caused by his use of AMMCO’s brake grinder in the 1960s, primarily in high school auto shop class from 1962-65. During trial, Plaintiffs argued that in the 1960s most passenger vehicle brakes contained asbestos, and that the medical and scientific community was well aware of the hazards associated with grinding such brakes. They further argued that AMMCO was effectively put on notice of such hazards and at a minimum should have warned its customers of the dangers associated with asbestos. Plaintiffs, represented by Simona Farrise and Trey Jones, sought in excess of $5 million in economic and non-economic damages, plus punitive damages.

Hennessy’s trial team argued that AMMCO acted reasonably and prudently throughout the relevant time period. Hennessy also argued that Mr. Morton’s limited asbestos exposure from brakes was insufficient to increase his risk of developing lung cancer. The defense experts included Dr. Lucian Chirieac, Dr. Allan Feingold, Mary Finn, Ph.D (IH), and Dominik Alexander, Ph.D. (epidemiologist). Plaintiff’s experts included Dr. Brody, Charlie Ay, Dr. Barry Castleman, and pulmonologist Dr. Barry Horn.

The Santa Monica jury returned a defense verdict in favor of Hennessy and Pneumo Abex.

Verdict # 2 – Colgate Wins Kentucky’s First Cosmetic Talcum Powder Trial

On Friday, August 2, the Gordon & Rees trial team of Edward Slaughter, Quincy Jones, Mark Crapo, Andrea Holmgreen, and Maddie Wiarda received a complete defense verdict on behalf of client Colgate-Palmolive Company in the first cosmetic talcum powder trial in Kentucky. After a three-week trial in the Jefferson Circuit Court in Louisville, Kentucky, the jury returned a defense verdict for defendants Colgate-Palmolive Company and Johnson & Johnson after less than one hour of deliberation.

Plaintiff was represented by Joseph Satterley (Kazan, McClain, Satterley & Greenwood; Satterley & Kelley) and Paul Kelley (Satterley & Kelley—a local Kentucky firm). Plaintiff sued both Colgate-Palmolive Company and Johnson & Johnson claiming her mother’s death in 2016 was due to the inhalation of asbestos through her use of allegedly contaminated talcum powder. Plaintiff sought over $5 million in damages, not including punitive damages.

This is a significant victory, particularly considering the increase in talcum powder cases being filed against cosmetic talcum powder manufacturers and suppliers throughout the United States.

California Talc Decision Bars Predecessor Liability, and Denies Punitive Damages Absent Scientific Consensus

When a Los Angeles jury returned an eye-popping $416 million verdict for plaintiff in a closely-watched talcum powder ovarian cancer case in 2017, the world took notice. The trial court granted post-trial motions that dramatically changed the jury’s verdict. Recently, in Echeverria v. Johnson & Johnson, the Court of Appeal gave both sides a mixed result, with rulings that will apply to many other product liability cases.

Johnson & Johnson – Former Manufacturer – No Liability

J&J manufactured the product until 1967, when it spun off to subsidiary J&J Consumer Products (“JJCI”). The jury found J&J liable, awarding both compensatory and punitive damages. The trial court granted judgment notwithstanding the verdict (“JNOV”). The Court of Appeal affirmed, applying “the general rule that a manufacturer has no duty to warn of risks posed by another manufacturers product” (citing O’Neil and Taylor, a Gordon & Rees victory). The Echeverria court distinguished the California Supreme Court decision in Novartis, which found such a predecessor manufacturer liable, because that case “concerned continuing liability for a negligent failure to warn in labeling that occurred prior to a manufactured divesting itself of the rights to the” product.

The risk of ovarian cancer from talc use during the time that J&J manufactured the product was speculative. Because of that, J&J did not owe consumers a duty to warn. Later developments, including J&J’s active participation in industry groups to defend talc, did not create a duty to warn after the fact. The court ruled that J&J is not responsible for JJCI’s later products solely because of the parent-subsidiary relationship.

This part of the decision will aid defendants in future cases where the exposures pre-date certainty of the claimed risk. Manufacturers that spun off, or sold off, product lines should be heartened by the decision. The parent company will not be liable so long as the sub is not controlled by its parent.

The Actual Manufacturer, JJCI, Gets a Split Decision – But All Better than the Jury’s Verdict

The jury also found JJCI liable – awarding both compensatory and punitive damages. The trial court granted both JNOV and a new trial. The Court of Appeal reversed the JNOV but affirmed the new trial, essentially holding that while the evidence was sufficient to support the verdict and thus defeat JNOV, there was also enough defense evidence to justify the trial court’s discretionary grant of new trial.

Plaintiff’s Evidence Enough to Support Verdict

The Court of Appeal reasoned that the evidence showed as of 2007 (when decedent died) JJCI knew, as did the scientific and medical community, that there was a statistically significant association between genital talc use and ovarian cancer. While there has yet to be a scientific consensus that genital talc causes ovarian cancer, as needed to prove causation, it was sufficient to show a risk existed. Thus, JJCI had a duty to warn consumers of the risk. Ultimately, what was known between 1967 and 2007 was significant enough that JJCI failed to act reasonably. JJCI should have issued an appropriate warning.

The trial court found significant weaknesses in plaintiff’s causation evidence, particularly relating to the differential diagnosis and relative risk evidence. The defense argued plaintiff’s expert’s reliance improper because the results failed to stratify patients into well-defined risk groups. Further, the results were not classified by the type of tissue in which decedent’s cancer originated. The Court of Appeal found that these weaknesses were not fatal to the plaintiff’s case, but merely “affected the weight of the evidence.”

The defense argued plaintiff was required to rule out other potential causes of decedent’s ovarian cancer, such as unknown etiology, arguing since plaintiff’s expert ignored other causes, the opinion was speculative. The Court of Appeal did not find the opinion speculative since the expert “did not ignore idiopathy but instead determined there was in fact a known cause of the cancer.” The Court of Appeal also pointed to the failure of the defense to advance evidence of a specific alternative cause stating, “[t]he defendant did not identify any relevant evidence about other causes it claimed the expert overlooked.” Had the defense done so, then plaintiff’s expert would have had to rule it out. It is not enough to simply discredit plaintiff’s theory. Defense counsel should always advance their own narrative.

Defense Evidence Sufficient to Justify New Trial

The trial court granted JJCI’s request for a new trial, and the Court of Appeal affirmed, because the evidence supported a defense verdict. “[T]he trial court’s ruling granting JNOV to JJCI as to liability must be reversed because the trial court weighed the evidence and made credibility determinations when rejecting and evaluating aspects of [plaintiff’s expert] testimony. In ruling on the new trial motion, however, the court was permitted to assess the credibility of witnesses, weigh the evidence, and draw inferences from the evidence different from those the jury may have drawn.”

Perhaps the key evidence was that there is no consensus among the scientific and medical community that genital talc use causes ovarian cancer. “[N]o published studies, regulatory agencies, or scientific organizations have concluded talc-based inflammation causes ovarian cancer.” The FDA has not found there is “conclusive evidence of a causal association” between talc use and ovarian cancer. Even evidence from the National Cancer Institute in 2017 “concluded the weight of the evidence did not support an association between perineal talc use and ovarian cancer.”

“The causation evidence was in significant conflict,” and a “reasonable jury” could have found for the defense. For example, “the trial court found [one plaintiff expert] ‘cherry picked’ the studies without sufficient justification and the weight of the epidemiological evidence undermined her opinion. There was evidence to support this finding.” The “trial court also found there was no evidence of inflammation present in Echeverria’s tissue, rejecting [another plaintiff expert’s] testimony and inferences that could be drawn from it.”

No Punitive Damages Before Scientific Consensus Established

Critically, the Court of Appeal held there cannot be an award for punitive damages “when the evidence demonstrated it is not universally accepted in the scientific and medical community that talc is even a significant factor for ovarian cancer.” Lack of such consensus is common in cases involving many different products with ingredients alleged to be toxic.

Based on this reasoning, unless the scientific and medical community suddenly comes to a consensus that genital talc use causes ovarian cancer or the California Supreme Court grants the inevitable petition for review and reverses, it seems highly unlikely plaintiff can win punitive damages on retrial.

Time Limits on Plaintiff Depositions on Their Way to Becoming Law in California

A bill to unduly limit deposition time is working its way through the California legislature, and likely to pass soon in some form. Senate Bill 645 would limit the deposition of mesothelioma or silicosis plaintiffs to 7 hours. The 7-hour time limit does not include plaintiff’s direct examination or re-direct examination by their counsel. To trigger the 7-hour time limit, the plaintiff must have a doctor declaration showing that the plaintiff has mesothelioma or silicosis and has six months or less to live.

SB 645 has already passed the California Senate and is an active bill in the Assembly. It was amended in the Assembly on July 5, 2019. Amendments to the time limits of SB 645 have been made as follows: A party can seek an order to extend the deposition time limit to 10 hours if there are more than 10 defendants appearing at the deposition. If there are more than 20 defendants appearing at the deposition, a party can seek an order extending the deposition time to 14 hours. This extension of time depends on the number of defendants present at the plaintiff’s deposition, not the number of defendants named in the caption.

SB 645 allows more time for plaintiffs whose health will not be endangered by the grant of additional time. The defense bar has expressed concern that, to avoid the extension of deposition time, plaintiffs will provide doctor declarations saying the plaintiff’s health is at risk, and judge will not extend the time of the deposition.

Given the current climate in Sacramento, SB 645 will likely pass after it is read, with its amendments, for the final time in the Assembly (date not yet set). After SB 645 passes the Assembly, it will go back to the Senate for approval of the amendments before being approved by the Governor. It is likely that SB 645 will become effective by January 2020.

The defense bar has considered potential Constitutional due process arguments against SB 645. It is likely that, at the deposition of a mesothelioma or silicosis plaintiff, some defendant will have no time to ask questions about alternative exposure or claims against their client because the clock ran out. It will take the “perfect test case” to challenge SB 645. Defendants at depositions will need to collaborate and get organized before depos commence, and work together to create a record of due process issues. Defendants will have to push the plaintiff to provide meaningful responses to interrogatories, and point out the lack of information given to each defendant before the deposition.

WARNING: Illinois 25-Year Statute of Repose No Longer Prohibits Claims Against Employers

No longer will employers be entitled to rely on the Illinois workers’ compensation exclusive remedy protections to prohibit civil actions filed 25 years or more after a worker’s alleged exposure. On May 17, 2019, Illinois Governor J.B. Pritzker signed into law Senate Bill 1596, which allows tort claims to be filed after the state’s occupational-disease 25-year time bar expires. Effective immediately, the Illinois Workers’ Compensation Act and Illinois Occupational Disease Act no longer prohibit workers diagnosed with latent diseases from pursuing their claims after the 25-year statute of repose.

According to a statement from his office, Gov. Pritzker signed this bill into law because the 25-year statute of repose was shorter than the medically recognized time period in which some diseases, including asbestos-related illnesses, are known to manifest.

SB 1596 was enacted in response to the Illinois Supreme Court’s 2015 ruling in Folta v. Ferro Engineering. 2015 IL 118070, 43 N.E.3d 108 (2015). In Folta, the court held that the state’s workers’ compensation and occupational disease law imposed a 25-year statute of repose on both workers’ compensation and tort law claims brought by people diagnosed with latent diseases after exposure to toxic substances such as asbestos, radiation, and beryllium in the workplace. Id. Further, the court held that these Acts were the exclusive remedy to Illinois employees who suffered from latent injuries. Id. at ¶ 12, 6-7.

Illinois law clearly states that the purpose of a repose period is to terminate the possibility of liability after a defined period of time. Id. at ¶ 33, 116. However, this new law removes the statute of repose language from the Acts and affirmatively excludes latent injuries from the exclusive remedy provisions.

While the bill contains no mention of retroactivity, the question of whether its enactment revives certain tort law claims remains unanswered. Illinois courts generally frown upon retroactive applicability and enforcement when a piece of legislation is silent on the issue. But some speculate that the absence of any retroactive language means that this law will not affect certain claims until 2044. While the impact of this legislation remains to be seen, what can be expected is litigation surrounding this issue in the near future.

Click here for a full text of the legislation.

Not Fair in Pennsylvania: Application of The Pennsylvania Fair Share Act to Strict Liability Cases Reviewed by State Supreme Court


In Pennsylvania, the proper method by which shares of liability are allocated to asbestos defendants (and strict liability defendants more generally) has been unclear for some time. The Supreme Court of Pennsylvania heard argument on March 6, 2019 in a case that should clarify matters and provide some certainty regarding the Pennsylvania Fair Share Act.

Background

The Pennsylvania legislature passed the Fair Share Act in 2011, eliminating joint and several liability from most tort cases. See 42 Pa. C.S. §7102. Under the Fair Share Act, each defendant is only liable for its apportioned amount of lability:

Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

42 Pa. C.S. §7102(a.1). From a practical standpoint, this provision of the Fair Share Act makes “pro rata” or “apportioned” allocation the default mechanism for allocating liability amongst tortfeasors in Pennsylvania.

Subsection (a.2) provides that “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.” 42 Pa. C.S. §7102(a.2). This provision eliminates joint and several liability and makes all tortfeasors severally liable to the injured party except in a few defined circumstances. For instance, where a defendant is found more than 60% liable to plaintiff, that defendant is jointly and severally liable. See 42 Pa. C.S. §7102(a.1)(3).

Although the Fair Share Act specifically applies to “actions for strict liability,” trial courts have inconsistently applied pro rata allocation in asbestos strict liability litigation. Many courts have relied upon a prior version of the Fair Share Act which apportioned fault amongst strictly liable defendants on a per capita basis whereby each defendant is equally responsible for a portion of the verdict (e.g. five defendants would each be 20% liable).

Roverano

The Superior Court held in December 2017 that the Fair Share Act applies to both negligence and strict liability actions. See Roverano v. John Crane, Inc., 177 A.3d 892 (Pa. Super. 2017). In Roverano, a Philadelphia jury awarded $6.4 million to a former utility worker and his wife in an asbestos (lung cancer) lawsuit. The trial court ruled that the Fair Share Act did not apply and apportioned the judgment equally among the eight defendants determined to be tortfeasors. The two defendants left at trial appealed, arguing (1) that the Fair Share Act applies to strict liability matters and (2) that the jury may consider evidence of settlements with bankrupt entities in connection with apportionment of liability.

The Superior Court agreed, finding that “liability in strict liability cases must be allocated in the same way as in other tort cases, and not on a per capita basis” and that “settlements with bankrupt entities [may be] included in the calculation of allocated liability” under the Fair Share Act provided that defendants at trial “submit evidence to establish that the non-parties were joint tortfeasors.” Roverano, 177 A.3d at 909.

The Pennsylvania Supreme Court granted a petition for appeal in Roverano to settle these issues of “first impression” to determine the proper method of allocation in strict liability cases. The Roverano case was argued before the Supreme Court on March 6, 2018.

The justices were generally skeptical of proportional allocation of fault in asbestos litigation, finding that such an approach would lend itself to “junk science” over how fault should be apportioned between defendants. Further, the justices questioned how it would be possible for a jury to determine proportional fault in a “non-arbitrary way” in asbestos cases. Counsel for the defense argued that the Fair Share Act is specifically focused on apportionment of damages, not liability, such that the cause of action is not altered. Plaintiffs’ counsel asserted that it would be impossible for the jury to apportion fault in this manner where the medical community has not been able to do so in the asbestos context. Plaintiffs also argued that bankrupt entities should not be allowed on the verdict sheet because it would violate federal law that bars bankrupt entities from defending lawsuits.

Roverano presents an opportunity for the Supreme Court to set the record straight once and for all as to whether the Fair Share Act applies to strict liability litigation. It appears based on oral argument, however, that the Supreme Court is focused more narrowly on whether the Fair Share Act should apply in asbestos cases, entertaining argument as to whether it is medically and scientifically possible to do so at all. Some commentators were anticipating that the Supreme Court might – in the interest of predictability in products litigation – take a broader approach and establish a framework as to how liability should be apportioned generally in strict liability cases. A decision is expected in a few months.