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

By on February 12, 2020

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.

Filed under Asbestos, Cumulative Exposure, exposure', Illinois, Substantial Factor

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

By and on May 24, 2019

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 with their workers comp attorney 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.

Filed under Asbestos, Illinois, Latency, Repose

Illinois Appellate Court Reverses $4.6M Verdict: No Duty If No Knowledge of Product Risks, and Presence on Site Not Enough for Causation

By on September 11, 2018

On Sept. 5, 2018, an Illinois appellate court reversed a McLean County $4.6 million jury verdict against defendant Hobart Brothers Company on two grounds that offer hope to defendants in other cases. First, the court ruled that the defendant owed no duty to warn if defendant and the industry were unaware of a hazard in their asbestos-containing product at the time of plaintiff’s exposure, even if they were aware of the dangers of raw asbestos. Second, the court ruled that the mere presence of a defendant’s product at plaintiff’s workplace is insufficient evidence that the defendant’s product was a substantial cause of plaintiff’s mesothelioma.

BACKGROUND

Plaintiff brought suit against defendant for failure to warn of the dangerousness of its product—Hobart 6010 welding stick electrodes, which contained chrysotile asbestos in the flux. Plaintiff himself did not use the Hobart 6010 welding rods. Rather, he testified that for seven months in 1962 and 1963, stick welders using those rods worked on a grated mezzanine above his work area, and that the used stubs of the stick welders’ 6010 welding rods would fall through the grated mezzanine floor, onto the floor below where plaintiff performed spot-welding. Plaintiff also testified that each day, he had to walk by the stick welders and over the mezzanine floor which was littered with welding stubs.

LACK OF DUTY

The appellate court stated that whether the defendant had a duty, in 1962 and 1963, to warn about its welding rods depended on whether, in 1962 or 1963, knowledge existed in the industry of the dangerous propensity of the defendant’s welding rods.

Although there was evidence that, in 1962 and 1963, knowledge existed in the industry of the dangerous propensity of raw asbestos, the court made “a crucial distinction” between raw asbestos and welding rods containing encapsulated asbestos. Knowledge about raw asbestos was not evidence that knowledge existed in the industry that this product—the Hobart 6010 welding rod—was harmful. The appellate court ultimately found that the record contained no evidence of contemporaneous knowledge in the industry that welding rods with asbestos encapsulated in the flux were hazardous. The lack of knowledge resulted in a lack of duty, entitling defendant to judgment notwithstanding the verdict.

LACK OF SUBSTANTIVE CAUSATION EVIDENCE

The appellate court found that the defendant was likewise entitled to a judgment notwithstanding the verdict because the record was devoid of any evidence that defendant’s welding rods were a substantial cause of plaintiff’s mesothelioma.

The court ruled that the chestnut Illinois case of Thacker v. UNR Industries, Inc., 151 Ill. 2d 343 (1992) did not help plaintiff. Thacker involved raw asbestos, not a finished asbestos-containing product like the welding rods here. More significantly: “Proving merely that plaintiff came into frequent, close, and regular contact with welding rods manufactured by defendant would not, on the logic of Thacker, prove substantial causation any more than proving he routinely walked on floor tiles containing asbestos would prove substantial causation.” [¶77] Rather, to meet his burden of production, the plaintiff “must prove he actually inhaled respirable fibers from defendant’s welding rods—and that he inhaled enough of the fibers that one could meaningfully say the welding rods were a ‘substantial factor’ in causing his mesothelioma.” [¶78]

The appellate court ruled that the Thacker frequency, proximity and regularity criteria had not been met. For instance, although plaintiff worked on the second floor and the stick welders worked on the third floor, his work station was not directly below the grated mezzanine floor where the stick welders worked, but rather off to the side. Further, the appellate court noted that plaintiff testified that the stubs from the stick welders on the third floor fell through the grates of the mezzanine floor and onto the second floor, but that plaintiff did not testify that the stubs fell into his work area. Although plaintiff testified that his workplace was dirty, there was no evidence that the dirt indeed contained asbestos. Moreover, plaintiff never testified to seeing clouds of dust in the workplace (unlike in Thacker where various employees testified that dust from the sacks of raw asbestos was continuously visible in the air of the plant when viewed in bright light).

“For all that appears in the record, the amount of asbestos fibers released from defendant’s welding rods by rubbing them together or stepping on them was no more than the amount one would have encountered in a natural environment. Without any idea of the concentration of airborne asbestos fibers the welding rods would have produced, it would be conjectural to say the welding rods were a substantial factor in causing plaintiff’s mesothelioma.” [¶ 83]

TAKE AWAYS

Though this case involved the specific product of asbestos-containing welding rods, the potential effect on future failure-to-warn cases involving other asbestos-containing products is much broader. Importantly, the appellate court focused on the industry’s knowledge of the dangerous propensity of the manufacturer’s product itself, not on the industry’s knowledge of the dangerous propensity of asbestos generally. In so doing, the appellate court distinguished the inquiry as a product-specific issue, not as a more general asbestos issue. Going forward, each failure-to-warn case will need to be carefully considered based on its individual facts regarding the product, time frame and industry knowledge of the hazards of the product at issue at the time of exposure to determine whether a duty existed.

Furthermore, this decision may likely impact the scrutiny of causation evidence. In its application of Thacker, the appellate court discussed the need for a plaintiff to prove more than just frequent, close and regular contact with a defendant’s product; a plaintiff must also prove that he not only inhaled respirable fibers from the defendant’s product but also inhaled enough of the fibers that one could meaningfully say the defendant’s product was a substantial factor in causing a plaintiff’s disease. Additionally, the appellate court’s decision peripherally touched on alternative exposures. The extent of this decision’s impact in asbestos-related lawsuits remains to be seen. Nevertheless, it is a favorable ruling for defendants in asbestos litigation.

Read the full opinion in McKinney v. Hobart Brothers Company here.

Filed under Asbestos, Causation, duty, Illinois, Substantial Factor

Illinois Appellate Court Issues a Win for Out-of-State Defendants in Asbestos Litigation Involving Non-Illinois Exposures

By and on July 24, 2018

On July 12, 2018, an appellate court in Illinois issued a long-awaited decision allowing the dismissal of an out-of-state defendant for lack of personal jurisdiction. Ruling on due process grounds, the court’s decision flies in the face of the common practice that allows plaintiffs in asbestos-related lawsuits to force out-of-state defendants into Illinois state court, including to the nation’s busiest asbestos docket, Madison County.

In Jeffs v. Ford Motor Company, plaintiff brought suit in Madison County, Illinois alleging that her deceased husband was exposed to asbestos-containing products in Michigan while working at Ford. The trial court denied Ford’s motion to dismiss for lack of personal jurisdiction, and instead found that Ford was subject to general, or all-purpose, jurisdiction in Illinois based on Ford’s substantial business dealings within the state. For an in-depth discussion of the trial court’s decision, please see our related post here.

In reversing the trial court’s decision, the appellate court considered both plaintiff and defendant’s interpretations of Daimler AG v. Bauman, but ultimately allowed much of their opinion to rest on Ford’s reliance on Aspen American Insurance Co. v. Interstate Warehousing, which the court found mandates a narrow definition of general jurisdiction under Illinois law. (For a discussion of Aspen, please see our related post here.) The appellate court found Aspen controlling when rejecting plaintiff’s argument that maintaining an agent to receive service of process—a condition of doing business in Illinois as an out-of-state corporation—was equivalent to consent to general jurisdiction. It further held that any argument equating registration with consent would similarly fail.

The appellate court next considered the Illinois long-arm statute’s ability to hale Ford into Illinois state court without case-specific contacts. The Illinois long-arm is limited only by the requirement that it comport with due process standards under the Illinois Constitution and United States Constitution. Under Aspen, because Ford is incorporated in Delaware and has its principal place of business in Michigan, it may only be subject to general jurisdiction in Illinois in “exceptional circumstances.” Consistent with Daimler and Aspen, a defendant may only be subject to general jurisdiction when their contacts are so continuous and systematic that the defendant is “essentially at home in the forum.” Looking to Ford’s contacts in Illinois: 7.5% of global employees, 5% of independent dealerships, 4.5% of sales, the court determined that despite Ford’s major business contacts, it could not be said to be essentially at home in Illinois.

Despite the fact that this opinion is unpublished and unable to be cited as precedent, its potential effect on future rulings should not be undervalued. Given that a once typical ruling in Illinois trial courts has now been reversed, at least in the Fifth District, it would seem likely that trial courts will now rule in favor of defendants asserting lack of personal jurisdiction in circumstances similar to those in Jeffs. Another interesting aspect will be how this ruling will affect filings in Madison County. All of this said, the presence of a potentially viable defense may not mean the end of litigation for a defendant asserting it. There remains the potential that plaintiffs may come to the individual defendant’s home state to sue them there. In some circumstances, this may still be a favorable outcome. In others, it may be best to remain in, for example, Madison County, for a variety of reasons. This is a strategic decision that should be carefully considered based on the facts of each individual case. Nonetheless, the Jeffs decision marks a clear procedural victory for out-of-state defendants in asbestos litigation involving non-Illinois exposures.

Filed under Asbestos, Illinois, Jurisdiction, Madison County, Illinois

Illinois Supreme Court Rejects Plaintiff’s Fishy Basis for General Jurisdiction, Mandating that Out-of-State Corporation Be “Essentially at Home” Pursuant to Daimler

By on September 25, 2017

On September 21, 2017, in Aspen American Insurance Co. v. Interstate Warehousing, Inc., No. 121281 (Illinois, September 21, 2016), the Illinois Supreme Court held that an out-of-state corporation must be “essentially at home” in Illinois before general jurisdiction may be found, rejecting plaintiff’s argument that the presence of a single warehouse in the state meets this standard.  In a straightforward interpretation of Daimler AG v. Bauman, et al., 134 S.Ct. 746 (2014), the court confirmed that general jurisdiction requires “continuous and systematic” contacts with Illinois, which can be met by showing that a defendant is either incorporated in Illinois or has its principal place of business there.  The Illinois Supreme Court’s ruling follows on the heels of two recent U.S. Supreme Court Decisions, both of which confirm that Daimler meant what it said about the limits of general jurisdiction, and Illinois now joins other states – such as Delaware, Missouri, and Rhode Island – which have rendered similar rulings.

Aspen  arose after Eastern Fish Company, a corporation in the business of importing fish products, contracted with defendant Interstate Warehousing Inc. to store its products at one of defendant’s warehouses located in Michigan.  When the warehouse’s roof collapsed, the importer’s products were contaminated and deemed unfit for human consumption.  Plaintiff, which insures Eastern, paid Eastern’s claim for the loss and then brought this subrogation action in the circuit court of Cook County.  ¶ 3.

Defendant moved to dismiss the complaint on the ground that Illinois courts lacked personal jurisdiction.  ¶ 6.  In response, Plaintiff first argued that because the dcfendant has a warehouse located in Joliet, Illinois, it was doing business in the state and thus subject to personal jurisdiction.  Plaintiff further argued that because defendant Interstate was registered to do business in Illinois, it could be sued in Illinois.  ¶ 8.  The circuit court denied the motion to dismiss and the Appellate Court for the First District affirmed, finding that Plaintiff had made a prima facie showing of general jurisdiction.  Illinois’ highest court reversed the lower courts’ decisions.

The Illinois Supreme Court first examined the federal due process standards set forth in Daimler, as well as Illinois’ long-arm statute, codified at 735 ILCS 5/2-209 , which governs the exercise of personal jurisdiction over non-resident defendants.  In doing so, the court followed in Daimler’s footsteps by finding that a “plaintiff must make a prima facie showing that defendant is essentially at home in Illinois.”  ¶ 18.  In order to do so, a plaintiff must show that the “defendant is incorporated or has its principal place of business in Illinois or that defendant’s contacts with Illinois are so substantial as to render this an exceptional case.”  Id.

Although the defendant does business through its Joliet warehouse, the court found that it was insufficient to establish Illinois as a  “surrogate home,” even though the evidence established that the warehouse had been in continuous use in Illinois for 25 years.  ¶ 19.  If it were sufficient, the court reasoned, then that the defendant would be considered at home in every state in which it has a warehouse, opening up numerous forums for it to be sued within.  Id.  The U.S. Supreme court had previously rejected this idea in Daimler, holding that “[a] corporation that operates in many places can scarcely be deemed at home in all of them.”  Daimler AG v. Bauman, 134 S. Ct. 746, 762 n. 20 (2014). Aspen followed suit and held that general jurisdiction was not authorized under Illinois’ long-arm statute as it would deny defendant due process of law.  ¶ 20.

The Illinois Supreme Court next looked to the Business Corporation Act of 1983 (“Act”) to see if it permitted general jurisdiction.  Upon examination, the court found that Defendant’s registration to do business within Illinois under the Act is not enough to subject it to personal jurisdiction within the state.  The court further found that the fact that the defendant has a registered agent in Illinois for service of process is also not enough to subject it to personal jurisdiction.  ¶ 22.  The court reasoned that the Act does not require out of state corporations to consent to general jurisdiction as a condition of doing business in Illinois and that a corporation does not waive its due process rights by registering in Illinois or appointing a registered agent.  ¶ 24.  For these reasons, the court held that general jurisdiction is also not permitted under the Business Corporation Act of 1983.

Illinois now joins other states which have made clear that they will apply the Daimler court’s test for personal jurisdiction, requiring that a defendant’s “affiliations with the forum state be so ‘continuous and systematic’ as to render them essentially at home.” Under Daimler, this can be accomplished by a showing defendant’s incorporation in that state or by showing that the defendant’s principal place of business is located there.  Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).”    Accordingly, Aspen provides Illinois defendants a powerful new tool to fight forum shopping, and to ensure Constitutional due process to litigants in Illinois courts.

 

 

Filed under Daimler AG v. Baumann, Illinois, Jurisdiction, long arm statute, minimum contacts

A More Personal Touch: Challenge to Madison County Jurisdiction Ordered Forward

By on June 7, 2016

6-7On May 25, 2016, the Illinois Supreme Court ordered the Fifth District Appellate Court of Illinois to hear Ford Motor Company’s appeal on a motion to dismiss for lack of personal jurisdiction, which had been denied by Honorable Judge Stephen A. Stobbs, the presiding asbestos judge in Madison County. Because Madison County has long been a magnet for out-of-state plaintiffs, this appeal could have widespread ramifications for out-of-state corporations, particularly those involved in mass-tort litigation. A ruling in favor of Ford would significantly impede plaintiffs’ ability to forum shop in plaintiff-friendly jurisdictions such as Madison County.

In Jeffs v. Anco Insulations, Inc., plaintiff alleges that the decedent was exposed to asbestos-containing products through his work as a union insulator at various sites. Decedent worked at the Ford plant in Michigan for six weeks in the 1970’s, but was not exposed to any Ford product or facility in Illinois.

In June 2015, Ford moved to dismiss for lack of personal jurisdiction. Ford relied primarily on the United States Supreme Court’s ruling in Daimler AG v. Bauman, which established that a court may assert jurisdiction over a foreign corporation “only when the corporation’s affiliations with the State in which suit is brought are so constant and pervasive as to render [it] essentially ‘at home’ in that forum State.” (This is an issue that we have blogged about before – California Court rules no jurisdiction over foreign parent corporations; No in state dealings for years – no jurisdiction; Out of state defendant? Out of state exposure? File suit somewhere else; and Registered in Delaware Is Not At “Home” There.) Under the Daimler analysis, a corporation is generally “at home” only at its place of incorporation or principal place of business. Because Ford’s state of incorporation is Delaware and its principal place of business is in Michigan, Ford argued that the court could not impose jurisdiction.

In November 2015, Judge Stobbs denied Ford’s motion. Despite the standard articulated in Daimler, Judge Stobbs ruled that Ford is subject to jurisdiction in Illinois due to its substantial contacts with the state. Judge Stobbs noted that Ford conducts business in Illinois, owns real property in Illinois, has employees in Illinois, and has acquiesced to jurisdiction in Illinois in previous suits. Judge Stobbs further found that Ford provided “unequivocal consent to jurisdiction in Illinois” by virtue of its Illinois business license and appointment of a registered agent to accept process. To further bolster his decision, Stobbs relied on Ford’s recently filed brief in a separate case, Folta v. Ferro Engineering, in which Ford explicitly acknowledged its significant operations and monetary investments in Illinois.

After Judge Stobbs issued his ruling, Ford sought leave to appeal the decision. On February 10, 2016, a three member panel of the Fifth District denied Ford’s petition. Undeterred, Ford filed a motion for a supervisory order with the Illinois Supreme Court, which the court granted. A supervisory order is granted only in limited circumstances when the lower court acted in excess of its authority or abused its discretionary authority. As such, the granting of this supervisory order suggests that the Illinois Supreme Court finds Ford’s position meritorious.

A ruling in favor of Ford would undoubtedly be followed by an onslaught of personal jurisdiction motions, particularly for those out-of-state defendants caught in the web of Madison County asbestos litigation. Most of the active defendants have little or no connection with Illinois, and many cases involve non-Illinois exposures. In the interim, it remains to be seen whether Judge Stobbs will entertain any additional personal jurisdiction motions or simply stay them pending a ruling from the Fifth District Appellate Court.

Filed under Asbestos, Illinois, Jurisdiction, Madison County, Illinois

Illinois Federal Court Holds Asbestos Product Manufacturer Owes no “Take Home” Duty of Care

By on April 11, 2016

The Northern District of Illinois recently ruled that under Illinois law, an asbestos product manufacturer owed no duty of care to household members in a “take home” or “secondary exposure” asbestos case. Neumann v. Borg-Warner Morse Tec LLC, No. 15-10507, N.D. Ill., 2016 U.S. Dist. LEXIS 31280.

Plaintiff Doris Jane Neumann alleges that she contracted malignant mesothelioma through exposure to asbestos-containing products as a result of laundering the clothes of her son, who used asbestos-containing friction paper during his work as a mechanic. Originally filed in state court, the case was removed to federal court on diversity grounds. Subsequently, defendant MW Custom Papers moved for dismissal under Federal Rule of Civil Procedure 12(b)(6), alleging that it could not be found liable for negligence because it did not owe Doris Jane Neumann a duty of care under Illinois law.

In ruling on the motion, the federal district court noted with frustration that there was a split of opinion among Illinois appellate courts on the issue. The Illinois Supreme Court had the opportunity to decide the issue in Simpkins v. CSX Transp., Inc., 2012 Ill. LEXIS 330, 965 N.E.2d 1092 (2012), but declined to issue a definitive ruling. Thus, the Illinois Supreme Court never actually answered the question as to whether a “take home” duty of care existed in Illinois asbestos cases. As a result, the holding in Neumann takes on a heightened significance.

Neumann analyzed the following four factors set forth in Simpkins: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden upon the defendant. At the outset, the court determined that the foreseeability factor was sufficiently met under the liberal notice pleading standard used in federal court. Moreover, MW Custom Papers did not challenge the “likelihood of injury” factor. Importantly, the court emphasized that plaintiff completely failed to address the third and fourth policy-driven factors in her briefs and exclusively focused her arguments on the foreseeability factor, which “is not the only factor to be considered.” Although the court found “no precedents or other authorities that convince us how the Illinois Supreme Court would rule on this novel duty question,” it found two Illinois appellate decisions that addressed this issue, but came to opposite results. Lastly, the court looked toward outside jurisdictions for direction, where it once again found divided opinions throughout the country. “While the majority of courts have declined to extend a duty in this situation, that fact alone is not persuasive, particularly because duty and negligence principles vary among states.”

Neumann gleaned some guidance from the Seventh Circuit, which instructed that “[w]hen we are faced with two opposing and equally plausible interpretations of state law, we generally choose the narrower interpretation which restricts liability, rather than the more expansive interpretation which creates substantially more liability.” Applying this reasoning, the court adopted the more narrow view, finding that MW Custom Papers did not owe a duty to Neumann in light of the magnitude of the burden of protecting her and the potential ramifications of imposing that heavy a burden on MW Custom Papers.

Filed under Asbestos, Illinois, Secondary Exposure, Take-Home Exposure

Barred: Illinois Supreme Court Holds That Plaintiffs May Not File Common Law Claims Against Employers, Even After Statutory Periods Have Expired

By on November 18, 2015

11-18On November 4, 2015, the Supreme Court of Illinois issued an opinion in Folta v. Ferro Engineering, 2015 IL 118070, which provided much needed clarification to the application of the “exclusive remedy” provisions of the Illinois Workers’ Compensation Act and Occupational Diseases Act in the context of long-latency asbestos-related diseases. Before Folta, several courts have ruled that employees were allowed to file civil lawsuits against their employer, if the 25-year statute of repose for workers’ compensation claims had expired. Folta went the opposite way, reinforcing the longstanding rule that an employee’s exclusive remedy for damages sustained in the course of employment is through the Illinois Workers’ Compensation Commission, regardless of whether any statutory time periods for workers’ compensation claims have expired.

Decedent James Folta worked for Ferro Engineering from 1966-1970 as a direct employee. Forty-one years later, in May 2011, Folta was diagnosed with mesothelioma. He thereafter filed a civil lawsuit in Cook County, Illinois against various defendants, including his former employer, Ferro Engineering, to recover damages. Defendant Ferro Engineering filed a motion to dismiss, alleging that Folta’s claims were barred by the exclusivity provision of the Illinois Workers’ Compensation Act (820 ILCS 305/5) and the Occupational Diseases Act (820 ILCS 310/5). In response, Folta argued that his symptoms did not manifest until 40 years after his last exposure to asbestos from Ferro Engineering and, accordingly, he was unable to file a workers’ compensation claim due to expiration of the 25-year statute of repose included in the Acts. Folta further argued that since the statute of repose had expired, his claims were “non-compensable,” which is one of four exceptions to the exclusivity mandate contained in the Acts.

The trial court granted Ferro Engineering’s motion to dismiss, finding that the action was indeed barred by the exclusivity provision of the Acts. Specifically, the trial court found that expiration of the applicable statute of repose period did not render the cause of action “non-compensable” under the Acts and that his exclusive remedy was still with the Illinois Workers’ Compensation Commission. Folta appealed the lower court’s decision and the appellate court reversed and remanded. The appellate court found that Folta’s injury was not compensable under the Act, because his disease did not manifest until after the statute of repose expired and he had no opportunity to seek compensation under the Acts. Therefore, the court reasoned, that the workers’ compensation exclusivity provision did not bar his suit against his former employer.

The Illinois Supreme Court reversed, ruling that the exclusivity provisions of the Illinois Workers’ Compensation Act and the Illinois Occupational Diseases Act bar an employee’s cause of action against an employer to recover damages for a disease resulting from asbestos exposure which arose out of and in the course of employment even though no compensation is available under those Acts due to statutory time limits on the employer’s liability.

Both the Workers’ Compensation Act and the Occupational Diseases Act provide that compensation provided therein for workplace injuries represent the full and complete remedy to an employee and no other remedy under common law or statutory law is available. 820 ILCS 310/5(a) and 820 ILCS 310/11. As with every rule, however, there are exceptions. Illinois courts have carved out four scenarios in which the exclusivity provisions of the Acts do not apply: (1) the injury was not accidental; (2) the injury did not arise from the employee’s employment; (3) the injury was not received during the course of employment; and (4) the injury is not compensable under the Acts. For the purposes of this analysis, the only relevant exception is the “noncompensability” exception, which is further outlined below.

The Folta decision reviewed a plethora of cases that specifically addressed the compensability of certain injuries under the Acts. In particular, the decision honed in on three cases wherein the plaintiffs sought to recover for injuries such as severe emotional shock and emotional distress that were incurred during employment. Pathfinder Co. v. Industrial Comm’n, 62 Ill.2d 556 (1976); Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237 (1980); Meerbrey v. Marshall Field & Co., 139 Ill.2d 455 (1990). Folta ruled that these three cases stood for the proposition that whether an injury is compensable is related to whether the type of injury categorically fits within the purview of the Act. Contrarily, they do not stand for the proposition that whether an injury is compensable is defined by an ability to actually recover benefits for a particular injury sustained by an employee. Asbestos-related injuries, such as asbestosis or mesothelioma, fall within the purview of the Acts and are specifically addressed by each Act, and are, therefore, compensable.

Folta then ruled that such claims remain compensable despite the expiration of a limitations period on the employer’s liability. The court relied heavily upon Moushon v. National Garages, Inc., 9 Ill. 2d 407 (1956) and Duley v. Caterpillar Tractor Co., 44 Ill. 2d. 15 (1969) in analyzing the efficacy of the exclusivity provisions of the Acts in cases where little or no compensation was received. In Moushon, a workplace accident caused the employee to become permanently impotent. The employer provided medical, surgical, and hospital services for the underlying injury; however, the plaintiff thereafter filed a civil action seeking damages for his impotence that resulted from the workplace accident. Despite the fact that no compensation was available specifically for the injury of impotence, the court held that his claims were barred by the exclusivity provision of the Acts. Mouson, 9 Ill. 2d at 418. Likewise, in Duley, the spouse of a deceased employee who was fatally injured in a workplace accident brought a civil lawsuit against the employer for wrongful death. Although the spouse received nominal reimbursement for funeral expenses, the court found that plaintiff’s wrongful death claims were barred by the exclusivity provisions of the Acts because he was not a dependent of his deceased wife. Duley, 44 Ill. 2d. at 18.

The Illinois Supreme Court agreed that Folta’s injuries are indeed barred by the 25-year statute of repose contained in each of the Acts. This did not, however, mean that exclusivity disappeared over time. “To construe the scope of the exclusive remedy provision to allow for a common-law action under these circumstances would mean that the statute of repose would cease to serve its intended function, to extinguish the employer’s liability for a work-related injury at some definite time.”

The Folta decision is significant for Illinois based employer-defendants in cases involving diseases with long latency periods, such as mesothelioma. It is also significant to insurers. The Illinois Supreme Court has made it clear: the Workers’ Compensation Act and Occupational Diseases Act are the full relief afforded to employees for injuries sustained in the course of employment, to the exclusion of any civil litigation, regardless of an expired statutory time period or whether an employee actually recovers compensation.

Filed under Asbestos, Illinois, Mesothelioma, workers’ compensation exclusivity

“Proximate Cause” to Celebrate: Evidence of Exposure to Asbestos from Source Other Than Defendant Again Required in Illinois

By on August 17, 2015

On July 30, 2015, an Illinois appeals panel held that a trial court committed reversible error by excluding evidence of a plaintiff’s prior work history, which the defendant sought to present as part of its “sole proximate cause defense.” The “sole proximate cause defense,” in which a defendant claims that a plaintiff’s injury resulted wholly from the conduct of some other party, was clarified for Illinois asbestos litigation in Nolan v. Weil-McLain. There, the Illinois Supreme Court held that evidence of the negligence of nonparty tortfeasors is admissible where a defendant claims the negligence of those nonparties was the sole proximate cause of the plaintiff’s injury. Prior to Nolan, Illinois courts had consistently barred evidence of exposures other than to the product (or at the premises) of the litigating defendant.

In Smith v. Illinois Central, Plaintiff Jim Smith filed suit against several defendants alleging exposure to asbestos while employed by GM&O Railroad (predecessor of Illinois Central Railroad Co.), leading him to contract asbestosis. Defendant Illinois Central Railroad Co. was the only remaining defendant at trial, and sought to introduce evidence that Plaintiff had worked at a Union Asbestos & Rubber Company (UNARCO) facility where he was exposed to asbestos. Plaintiff filed a motion in limine to bar the defendant from introducing any evidence that he was exposed to asbestos dust in any manner other than by virtue of his employment by that defendant. The trial judge granted the motion, and after a three week trial, the jury returned a verdict in plaintiff’s favor.

On appeal, Illinois Central argued that excluding evidence of plaintiff’s significant exposure to asbestos while working at UNARCO in effect stripped Illinois Central of its sole proximate cause defense, because the jury could have reasonably found that the single proximate cause of plaintiff’s condition was the massive dose of asbestos exposure he sustained while working at UNARCO, as opposed to the minimal dose he may have received while employed by the railroad. The Appellate Court of Illinois agreed, reversing and remanding the case for a new trial, and holding that excluding evidence of other exposures improperly deprived the defendant of a rational alternative explanation for why plaintiff was suffering from an asbestos-related disease.

The appellate panel explained that a defendant is permitted to challenge both medical causation and the allegation that the exposure in question led to the alleged disease. Thus, Illinois Central should have been allowed to present evidence in an attempt to establish that plaintiff’s UNARCO work experience was to blame for his asbestosis. The trial court’s error was “particularly egregious” in this case, the court explained, because a large portion of plaintiff’s case was based on his exposure to dust from UNARCO’s operation while working for the railroad.

The Smith opinion illustrates the practical application of Nolan, and demonstrates that Illinois courts are no longer blocking defendants from pointing to other potential proximate causes of asbestos-related disease. Where an asbestos plaintiff had minimal exposure to a defendant’s product but significant exposure to the asbestos of non-parties, and perhaps in other cases as well, Illinois defendants are armed with the right to present the highly relevant evidence of exposure from another source.

Filed under Alternative Exposure, Asbestos, Illinois

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

By on June 17, 2015

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.

Filed under Any Exposure, Asbestos, asbestos exposures, Illinois, single fiber theory of causation, Toxic Tort/Product Liability Litigation

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