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.

Hoosier State Eliminates Asbestos Statute of Repose

On March 2, 2016, Indiana’s highest court declared the Indiana Product Liability Act (“IPLA”) statute of repose unconstitutional as applied to asbestos claims. In its 3-2 decision, the Indiana Supreme Court essentially overruled a prior landmark decision in and decided that the statute of repose did not apply to cases “where the plaintiffs have had protracted exposure to inherently dangerous foreign substances.”

hour-glassThe overruled decision, AlliedSignal v. Ott, 785 N.E.2d 1068 (Ind. 2003), had upheld the asbestos statute of repose against an Equal Privileges and Immunities Clause challenge. Ott held that while there was a distinction “between asbestos victims and other victims under the product liability act,” the statute of repose did not harm asbestos plaintiffs because they are either subject to the same statute of repose as non-asbestos plaintiffs or have an exception if the defendant “mined and sold commercial asbestos.”

Last week’s opinion was issued in a triple consolidated appeal: Myers v. Crouse-Hinds Division of Cooper Industries, Inc.; General Electric Company v. Geyman; and Owens-Illinois, Inc. v. Geyman. Each of these cases involved the same constitutional challenges rejected by the court in Ott. Specifically, the court addressed the interrelation of two sections of the IPLA, each specifying different time limits within which claims must be filed. Section 1 of chapter 3 of the IPLA, which governs to product liability claims generally, specifies a two-year discovery statute of limitations and a statute of repose that limits claims to those brought within 10 years of delivery of the product to a consumer. Section 2 of chapter 3 governs personal injury claims arising from asbestos exposure, omits the 10-year repose limitation and “applies only to product liability actions against persons who mined and sold commercial asbestos.” For years, the state of the law has been that Section 2 did not apply to manufacturers of asbestos-containing products because they did not mine the asbestos within their products.

Here, the court decided that it was not bound by Ott because the plaintiffs’ constitutional challenge proposed a different set of disparately treated classes of plaintiffs. “Instead of comparing asbestos victims to non-asbestos victims [as in Ott], they compare two separate types of asbestos victims.” This led to the different result. “Section 2 draws a constitutionally impermissible distinction between asbestos plaintiffs injured by defendants who both mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants outside that category.” The court ruled both Sections 1 and 2 unconstitutional as applied to asbestos plaintiffs, meaning that no statute of repose currently exists for asbestos claims in Indiana.

We anticipate that this opinion will alter the landscape of asbestos litigation in the very near future, and expect to see more filings in Indiana.

A copy of the decision is available here.

Multiple trial courts toss out “single fiber” causation theory under both Federal and state law

Since the first asbestos filing by a plaintiff’s lawyer, plaintiff medical experts in mesothelioma cases have infamously opined that every exposure to asbestos by a plaintiff – including exposure to a single asbestos fiber – is sufficient to cause disease. Not only does this type of expert testimony ease the connecting of the causation dots, but it permits the recycling of generalized and “boilerplate” expert reports. Recently, however, court rulings have given hope to defendants in the litigation that plaintiffs may now have to put considerably more time and effort into developing their expert opinions by precluding those experts from advancing the “single fiber” theory.

In January 2013, asbestos-fibresthe District Court of Utah rejected plaintiff’s attempt to use “single fiber” expert testimony. Smith v. Ford Motor Co., D. Utah, No. 2:08-cv-630, 1/18/13. In Smith, Ford moved to dismiss the “single fiber” testimony of plaintiff’s medical expert, arguing that the theory was speculative and without scientific foundation. As a result, it was inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). The district court agreed and found that the pathologist’s opinion was wholly “unsupported by sufficient or reliable scientific research, data, investigations or studies.” The court elaborated that this testimony did “virtually nothing to help the trier of fact decide the all-important question of specific causation” and is based solely on the belief that any exposure should not be ruled out as a contributing cause. Finally, the court pointed out that the fact that this type of testimony survived Daubert challenges in the past was an “aberration.”

In December 2014, the Northern District of Illinois similarly found that this theory was inadmissible under Daubert and Rule 702. In Krik v. Crane Co., No. 10-cv-7435, N.D. Ill. December 12, 2014 (Doc. # 314), the Northern District analyzed the opinions of plaintiff’s medical experts and industrial hygienist, finding that these opinions indeed espoused  the “single fiber” theory. In holding that single fiber causation is “not an acceptable approach for a causation expert to take,” the court noted that “single fiber” causation was inconsistent with Illinois’ express adoption of the “frequency, regularity and proximity” causation test in Thacker v. UNR Industries, Inc., 603 N.E.2d  449, 457. Further, the “any exposure” theory was also inadmissible given plaintiff”s experts’ “wholesale failure to based their opinions on facts specific to this case.” In fact, the court specifically pointed out that plaintiff’s experts admitted in their depositions that they had  not considered any case-specific facts in formulating their opinions.

In April 2015, a New York court also rejected the single fiber theory, finding that plaintiff’s theory of cumulative, unquantifiable exposure did not pass muster under New York’s rules of evidence. Juni v. A.O. Smith Water Products, No. 19031/12, 2015 WL 1623788 (N.Y. Sup. Ct., N.Y. County Apr. 13, 2015). Specifically, the court found that the “every exposure” testimony was insufficient to prove that any specific exposure was a significant contributing factor to causing the disease. The result? An $11 million verdict against Ford was overturned.

These most recent rejections of the “every exposure” theory are significant victories for defendants because they add to the accumulation of similar rulings across the country. After years of accepting the “every exposure” theory, courts are now requiring that both plaintiff and defense expert opinions be based on case-specific facts grounded in science.

Madison County, Illinois: Open for Business to Plaintiffs From Everywhere

Madison County, Illinois, has long been a favored jurisdiction for plaintiffs to file asbestos cases, regardless of where they reside or where their exposure occurred.  This trend has accelerated over the past three years, with thousands of asbestos filings there each year.

Recently, new firms have begun filing there, encouraged by the prospects of favorable juries and favorable damages law.  For example, Madison County set a record last year with 1,678 new asbestos case filings, more than any other jurisdiction in the nation, a 42 percent increase in filings since 2010.  In the first quarter of 2014, out-of-state plaintiffs’ firms filed a majority of the new cases, a shift from 2010 when local firms held the majority.  Recently, when Judge Stephen A. Stobbs denied four forum non conveniens motions to dismiss, Madison County sent the message – loud and clear – that it is open for business and welcomes new filings from out of state.

Defendants in four different cases moved for dismissal based on forum non conveniens by arguing that Madison County was an inconvenient venue for the parties.  Beacher (Brown) v. American Biltrite Co. (Case No. 12-L-1392); Warden v. Caterpillar, Inc. (Case No. 12-L-1065); Murphy v. CBS Corp. (Case No. 12-L-1141); and Hunt (Munsey-Hunt) v. 84 Lumber Co. (Case No. 12-L-1140).  Under Illinois Supreme Court Rule 187(c)(2), a court that has jurisdiction over the parties and the subject matter involved “may nevertheless decline jurisdiction of a case when it is apparent that trial in another forum with jurisdiction over the parties would be more convenient and better serve the ends of justice.”  Berbig v. Sears Roebuck & Co. Inc., et al., 378 Ill. App. 3d 185, 188 (1st Dist. 2007) quoting Vinson v. Allstate, 144 Ill. 2d 306, 311 (1991); see Il. S. Ct. R. 187.

Each of the four motions was predicated on similar facts: (1) none of the plaintiffs lived in Illinois, let alone Madison County, and (2) none of the plaintiffs ever worked in Illinois, let alone Madison County.  While venue was proper based on the presence of a Madison County defendant, the defendants argued that Madison County was inconvenient for all the parties and the witnesses involved, and the cases should be dismissed.

Despite the obvious lack of connection to Illinois, Stobbs denied all four motions.  Stobbs insisted that for defendants to meet their burdens under the motion, they must demonstrate which court would be the appropriate court to try the cases, whether such court would have jurisdiction and venue over all parties to the case, and whether this court would be more convenient to all parties to the litigation.  Stobbs found that the defendants’ motions failed to adequately address which forum would be more convenient and how that forum would be more convenient to each and every party. The defendants argued that the standard is almost impossible to show when a plaintiff sues dozens or hundreds of defendants at a time (standard in asbestos cases), and essentially makes the forum non conveniens doctrine a dead letter in Madison County asbestos cases.

These rulings herald that Madison County is “open for business” to asbestos plaintiffs, regardless of where the operative events took place.  This is all the more concerning given that numerous out-of-state firms have recently filed in Madison County for the first time, and its asbestos docket has substantially increased over the past three years.  As the West Coast becomes less attractive to plaintiffs because of legal developments in those jurisdictions, these decisions clearly solidify Madison County’s reputation as a venue of choice for plaintiffs nationwide.

Three of the four decisions are being appealed.  In their appeals, the defendants argue that Stobbs abused his discretion in denying the forum non conveniens motions in cases that have absolutely no connection to Illinois.  The defendants maintain that these cases should be tried in the most appropriate forum, the one with the most connections to the case.

The defendants also cite staggering statistics to support their argument that sustaining Stobbs’ denials would render the forum non conveniens doctrine virtually useless in Madison County.  The defendants use the firm of Napoli, Bern, Ripka, Shkolnik, which represents these plaintiffs, as an example.  The firm’s filings rose from 343 in 2012 to 548 in 2013, making it the top asbestos filer in the county.  Napoli also files a majority of the lung cancer cases in Madison County, which is particularly concerning because lung cancer is most often caused by smoking and non-asbestos-related causes.  The defendants argue that if Madison County opens its arms to lung cancer cases from around the country, most of which will have no ties to Illinois, then those filings will “overwhelm the docket, swamp the court and crowd out court resources that would otherwise be available to actual Madison County residents.”

As the Illinois Court of Appeals decides whether to overturn Stobbs’ decisions, Madison County will remain “open for business” for plaintiffs all around the country.  Regardless of whether those plaintiffs have stepped foot inside the state, worked for an Illinois company, or  come close to a product manufactured by an Illinois business, for now, they are welcomed with open arms in Madison County.

Will the Exception Swallow the Rule? The Northern District of Illinois’ Take on the Bare Metal Defense

The bare metal defense has become a “go-to” defense for defendants involved in national asbestos litigation.  Predominantly asserted by manufacturers of industrial equipment, the defense provides that those defendants that manufactured products composed only of metal have no duty to warn of asbestos-containing components later installed by others post-sale.  It also rejects liability for “affixed” external materials – typically thermal insulation and flange gaskets manufactured by others – placed on the metal products by someone other than the defendant.

While the defense has been the subject of numerous cases, its application has not been uniform.  However, the decisions fall into three main categories:

(1) a defense-friendly category, holding that manufacturers have no duty to warn of asbestos-containing replacement parts supplied by a third party;

(2) a plaintiff-friendly category, holding that manufacturers have a duty to warn whenever it is foreseeable that asbestos-containing material may be used with their products; and

(3)  a “middle ground,” holding that manufacturers generally have no such duty, but do have a duty to warn when the use of asbestos-containing materials (a) was specified by a defendant, (b) was essential to the proper functioning of the defendant’s products, or (c)         was for “some reason so inevitable that, by supplying the product, the defendant was responsible for introducing asbestos into the environment at issue.”

Recently, the Northern District of Illinois expressly adopted the middle ground. In Quirin v. Lorillard Tobacco Co., 2014 U.S. Dist. LEXIS 18744 (N.D. Ill. Feb. 14, 2014), the court ultimately denied Crane Co.’s summary judgment motion under an exception to the middle-ground approach, namely that the plaintiff was able to proffer evidence that Crane Co. specified the asbestos-containing replacement components or that the asbestos-containing components were necessary for the metal products to function.

Quirin arose out of the plaintiff’s alleged exposure to asbestos-containing Crane Co. valves during the plaintiff’s service in the U.S. Navy.  Although the valves themselves were composed of “bare metal,” they included an internal bonnet gasket and stem packing at the time of shipment that may have contained asbestos. In addition, Crane Co. sold asbestos-containing replacement gaskets, gasket material and packing.  Crane Co. moved for summary judgment, arguing that its valves were bare metal and, accordingly, Crane Co. had no duty to warn of asbestos-containing components manufactured by others and ultimately applied by the Navy, the end user of the product.

Quirin looked to other jurisdictions for guidance, expressly citing the California Supreme Court’s ruling in O’Neil v. Crane Co., 53 Cal. 4th 335 (2012), noting that “manufacturers are not required to investigate and warn of the potential risks of any other products that might be used with a Crane Co. product.  The duty attaches only when the manufacturer incorporated the asbestos-containing material into its product, meaning that asbestos would inevitably be introduced into the stream of commerce along with the product.”  The Quirin court, however, found that the O’Neil court “qualified its conclusion” and “left room for an exception to the rule” because the plaintiffs in O’Neil did not prove the equipment at issue needed asbestos to function.

Quirin relied on evidence that Crane Co. valves were used for high heat applications, that at least some of its valves needed asbestos-containing components to function properly, and that Crane Co. provided specifications for such use.  Taken together, the court concluded that a jury could find that Crane Co. had a legal duty to warn about the hazards of asbestos exposure from working with its valves.

On one hand, the fact that the Quirin court cited the O’Neil case with approval is encouraging for equipment defendants in Illinois.  However, the adoption of the middle-ground approach by the Northern District of Illinois is troubling. Practically speaking, there is minimal difference between the middle-ground approach and the plaintiff-oriented foreseeability approach, since the plaintiffs will merely proffer expert testimony to prove the “bare metal” product at issue was used for hot applications and “needed asbestos” to function properly.  As presently interpreted by the Northern District, then, defendants need to be particularly aware of the bare metal defense’s limitations; it does not provide a complete bar for bare metal defendants, even those that never manufactured asbestos-containing products or provided asbestos-containing components with their products.

Fortunately, however, development of the bare metal defense is still in its infancy in Illinois.  Indeed, there has yet to be a definitive ruling rendered by an Illinois appellate court on the issue.  In fact, just before the ruling in Quirin, the Asbestos MDL remanded an asbestos lawsuit to the Southern District of Illinois to determine whether the state even recognized the bare metal defense.  For now, equipment defendants in federal court in Illinois are well advised to argue the policy and rationale of O’Neil and push at the state and federal level for a bright-line rule of nonliability for other parties’ products.