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.

Washington State Rejects Challenge to Workers’ Comp Pre-Emption of Asbestos Lawsuits Brought By Employees

Washington State’s Industrial Insurance Act (IIA), Title 51 RCW, like the workers’ compensation system in other states, creates a no-fault system under which employees are efficiently compensated for workplace injuries and employers are generally immune from civil suits arising from such injuries.  The statute contains a narrow exception that allows an employee to sue an employer for a work-related injury that “results . . . from the deliberate intention of his or her employer to produce such injury.”  RCW 51.24.020.  Last month, in Walston v. Boeing Co., the Washington Supreme Court ruled that this exception does not apply to employees’ claims of asbestos exposure at work, and that such claims are barred by workers’ comp exclusivity.

For many years, the “deliberate intention” exception was effectively limited to physical assaults.  In Birklid v. Boeing Co., 127 Wn.2d 853, 904 P.2d 278 (1995),the Washington Supreme Court expanded the exception to cover the immediate and observable injuries from use of allegedly toxic substances in the workplace.  Birklid held that the “phrase ‘deliberate intention’ . . . means the employer [1] had actual knowledge that an injury was certain to occur and [2] willfully disregarded that knowledge.”  The exception is narrowly construed to preserve the “legislative policy mandating employer immunity.”  Nevertheless, because employer Boeing continued to use a new resin that caused immediate and observable injuries in its employees, the Supreme Court held that the affected employees could proceed in tort against Boeing.

Birklid expressly considered and rejected a test used in some other states under which injury was only “substantially certain” to occur – it concluded that certainty of injury was required in Washington State.  Birklid also rejected the “injury to somebody” approach – i.e., that the employer knew that someone (not necessarily the specific claimant) would be injured due to the employer’s intentional conduct.  Subsequent opinions have affirmed the certainty of injury necessary to avoid pre-emption.  See, e.g., Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 28-29, 109 P.3d 805 (2005) (school could not have “actual knowledge” that injuries to teachers assaulted by disabled student with history of violent behavior were certain as a matter of law, because the student’s behavior was unpredictable and school had taken steps to reduce the risk); Shellenbarger v. Longview Fibre Co., 125 Wn. App. 41, 103 P.3d 807 (2004) (mere exposure to asbestos does not create “certainty” that an employee will develop an asbestos-related disease).  Thus, risk of injury is not enough for an employee to avoid workers’ comp pre-emption and proceed in tort; rather, “the Birklid test can be met in only very limited circumstances where continued injury is not only substantially certain, but certain to occur.”  Vallandigham, 154 Wn.2d at 28, 32 (emphasis in original).

In Walston v. Boeing Co., employer Boeing allegedly compelled employees in 1985 to work underneath “moon-suited” remediation contractors removing asbestos-containing pipe insulation in the machine shop.  Boeing supervisors allegedly rejected the employees’ requests for protective equipment and forced them to return to work.  Gary Walston was diagnosed with mesothelioma 25 years later in 2010 and sued in tort, claiming intentional injury based on Boeing’s knowledge by 1985 that even if his mesothelioma was not certain to develop by his compelled exposure, underlying cellular lung damage was certain to occur simply by exposure to asbestos, and that it was substantially certain, if not certain, that someone would develop mesothelioma or some other asbestos-related disease as a result of asbestos exposure.

The Court of Appeal reversed the trial court’s denial of Boeing’s summary judgment motion, and the Supreme Court agreed by a 5-4 vote.  According to the majority, cellular lung injury would not constitute a compensable injury under the IIA.  Even the plaintiff’s experts conceded that Walston’s eventual development of mesothelioma (or any compensable asbestos-related condition) had not been certain to occur simply by his exposure to asbestos; under Birklid, the risk of mesothelioma is not “certainty of injury” to Walston himself, as necessary to avoid workers’ comp pre-emption.  Thus, even if Boeing had actual knowledge that exposure to asbestos would cause asymptomatic cellular-level injury, the controlling Birklid “intentional disregard” standard would not be met. A good workers compensation lawyer will be able to help out taking any decision related to problems like this one.

Walston’s affirmance of the Birklid “intentional disregard” standard – particularly in a case involving a sophisticated employer in the mid-1980s more than a decade after the implementation of OSHA and public awareness of the risks from asbestos exposure – should continue to protect employers from tort claims arising from their employees’ exposure not only to asbestos but other toxins and risks that produce injuries with long latency periods.  For example, employees of landscapers who develop skin cancer and truck drivers who develop emphysema from vehicle fumes should continue to be limited to recovery under the IIA rather than in court.

But this narrow standard remains under attack.  Donna Walston, the representative of Gary Walston’s estate, has filed a motion for reconsideration of the Supreme Court’s opinion looking to garner one more vote there, and at least one legislative leader (not coincidentally, a former asbestos plaintiffs’ lawyer and partner of the plaintiff’s counsel in Walston) plans to propose a change to the IIA that would create tort liability for employers from exposure to asbestos and other toxins that lead to latent conditions that are not immediately observable.  We will continue to keep you informed of developments in this area.

Fiber Type Crucial In Defending Asbestos Claims

Asbestos defendants are frequently faced with medical causation testimony from the plaintiff that asserts that, because there is no “safe” level of asbestos exposure, any exposure above some ill-defined “background” level is a substantial contributing factor to the plaintiff’s asbestos-related injury. This theory has become the centerpiece of modern asbestos litigation and discourages minimal exposure cases from going to the jury. However, a strong defense can be mounted to a minimal exposure case, particularly if plaintiff alleges exposure to chrysotile asbestos fibers.

For the toxic tort defense lawyer, an understanding of the two major families of asbestos is critical. From a toxicity standpoint, amphibole asbestos fibers are more potentially toxic than fibers of the serpentine family. Amphiboles tend to: (1) be acid resistant; (2) be persistent in the body; (3) be straight fibers; and (4) contain iron. By comparison,chrysotile asbestos, a member of the serpentine family, has a much more lower toxicity profile, particularly in low exposure settings. Chrysotile: (1) breaks down in the body; (2) is acid soluble; (3) has a soft pliable curly shape; and (4) contains dissolvable magnesium. Because the body handles chrysotile fibers differently, chrysotile is much less potent than amphibole asbestos. An examination of the toxicological literature demonstrates that the mesothelioma mortality risk is much greater from amphibole exposure as compared to chrysotile exposure.

At a meeting of the IADC in February 2012, William G. Hughson, M.D., D.Phil., expressed criticism of the expert opinions commonly expressed by plaintiff experts in asbestos cases concerning chrysotile. Dr. Hughson is the Director of the University of California at San Diego Center for Occupational & Environmental Medicine. Dr. Hughson rejects the view that any exposure above background is a substantial contributing factor to disease and that dose has no bearing on causation. At the same meeting, Bob Manlowe, a lawyer with Seattle-based Williams Kastner, delivered a paper titled, “Literature Refuting Single-Fiber Theory and Zero-No-Threshold/Linear-Dose-Model.” For the asbestos practitioner, the two papers provide a valuable road map to cross-examining plaintiff experts and defending mesiothelioma cases involving chrysotile asbestos.