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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Asbestos Litigation Update


The past month has yielded three decisions that are certain to impact future asbestos personal injury litigation in Illinois. Smith v. Crane Co. et al., in the United States District Court for the Northern District of Illinois, Folta v. Ferro Engineering, in the Illinois First District Court of Appeals, and Bostic v. Georgia-Pacific, in the Supreme Court of Texas, all offer developments applicable to asbestos personal injury cases. From the standpoint of defendants, two of these three decisions are favorable and should be very useful in defending Illinois asbestos suits.

Smith v. Crane Co., et al., 1:13-cv-07411 (July 14, 2014)

In Smith, the United States District Court for the Northern District of Illinois dismissed Plaintiffs’ claim for loss of consortium because Plaintiff’s alleged exposure to asbestos occurred prior to the Plaintiffs’ marriage. Plaintiffs Dianne and Kenneth Smith married August 3, 1979. Plaintiff Kenneth Smith was allegedly exposed to asbestos while serving in the United States Navy from 1964 to 1968. Kenneth was diagnosed with mesothelioma on June 25, 2013, and Kenneth and Dianne subsequently brought suit for Kenneth’s injuries and Dianne’s loss of consortium.

Defendant Crane Co. filed a motion to dismiss Plaintiff’s loss of consortium count arguing that they owed no duty to Dianne Smith because her husband’s exposure to asbestos predated the couple’s marriage. Crane’s argument relied on two Illinois Appellate Court decisions, Monroe v. Trinity Hosp.-Advocate, 345 Ill. App. 3d 896, 803 N.E.2d 1002 (Ill.App. Ct. 2003), and Gillenwater v. Honeywell Int’l., Inc., 2013 IL App (4th) 120929, 375 Ill. Dec. 123, 996 N.E.2d 1179. In both cases the court held that a wife could not recover for loss of consortium because she was not married to her husband at the time of the alleged exposure. Citing Sostock v. Reiss, 92 Ill.App.3d 200, 206, 415 N.E.2d 1094, 1098 (1980), the Court states that “If a marital relationship does not exist at the time of the alleged injury, a defendant owes no duty to the spouse alleging loss of consortium.”

The Plaintiffs responded arguing that the discovery rule allows for a loss of consortium claim to toll along with the cause of action. However, the Court, citing Monroe, 345 Ill. App. 3d at 900, states that the discovery rule was not intended to “[determine] whether a tort claim ever arose in the first place.” Furthermore, the discovery rule does not indicate that loss of consortium claims can be brought for alleged injuries that occurred before a marital relationship began.

Asbestos injury suits routinely include spousal claims for loss of consortium. Due to the nature of asbestos-related diseases, along with the work that is frequently involved, plaintiffs’ alleged exposures often take place prior to the current marriage. Consequently, defendants are repeatedly offered an opportunity to move for dismissal of any loss of consortium count on the basis that no duty was owed to the plaintiff because no marital relationship existed at the time of the alleged exposure. Smith builds on the decisions in Monroe and Gillenwater, and provides defendants with further ammunition in support of similar motions in the future.

Folta v. Ferro Engineering, 2014 IL App (1st) 123219 (June 21, 2014)

In Folta, the Illinois First District Court of Appeals addressed an issue of first impression in Illinois. The Court determined that an employee can sue his employer outside of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act when the employee first learns of his injury after the expiration of the statute of repose under those Acts. Ultimately, the Court held that Plaintiff was not barred by the exclusive remedy provisions because those provisions do not apply to claims that are not compensable under the Acts.

Plaintiff Ellen Folta brought an action to recover for injuries suffered by her husband, the Decedent James Folta, as a result of his alleged exposure to asbestos that occurred while he was an employee of Ferro Engineering from 1966-1970. The Decedent was not diagnosed with peritoneal mesothelioma until 2011. At that time, any potential workers’ compensation claim was barred by the Act’s 25-year statute of repose and the three-year statute of repose under the Workers’ Occupational Diseases Act. Rather than file a workers’ compensation claim, Plaintiff filed a common law tort action instead. Defendant Ferro Engineering filed a motion to dismiss Plaintiff’s counts against it arguing that because the Decedent’s injuries arose out of and in the course of his employment, his action was barred by the exclusive remedy provisions of the Acts. Plaintiff responded that the exclusive remedy provisions did not bar the action since those provisions did not apply to claims that are not compensable under the Acts. The trial court granted Defendant’s motion to dismiss, and the Plaintiff appealed.

On appeal, Plaintiff argued that the suit fell under the “not compensable under the Act” exception to the exclusive remedy provisions of the Acts because any potential claim under the Acts was time-barred at the time that the Decedent became aware of his injury. In Meerbrey v. Marshall Field & Co., Inc., 139 Ill.2d 455, 463 (1990), the Illinois Supreme Court held that an injured employee may bring a common-law action against his employer if he can prove any one of the following exceptions: (1) the injury was not accidental; (2) the injury did not arise from his employment; (3) the injury was not received during the course of employment; or (4) the injury is not compensable under the Act. In this case, the determinative issue was the definition of “not compensable under the Act.” Plaintiff argued that an injury is not compensable under the Act whenever a plaintiff, through no fault of his own, is barred from seeking recovery under the Act. The defendant argued that an injury is not compensable only if it does not arise out of and in the course of employment. The Court held that in situations where an injured employee’s potential workers’ compensation claim is time-barred before he learns of it, the exclusive remedy provision of the Workers’ Compensation Act and exclusive remedy provision of the Workers’ Occupational Diseases Act are not applicable.

The Court limited its holding to the particular facts presented in this case. Therefore, variations in the fact patterns of future asbestos personal injury cases may lead to different results. We have previously argued, with success in Cook County, that the exclusive remedy provision of the Workers’ Compensation Act bars common law tort actions for suits arising out of exposure to asbestos in the course of the plaintiff’s employment, regardless of whether the Workers’ Compensation claim is time-barred. Under the Folta decision, the timing of plaintiffs’ claims will be of added importance as these cases are evaluated in the future. Additionally, it will be important to follow this issue as it is either appealed to the Illinois Supreme Court, or it is addressed by other appellate courts, in particular the Fifth District which handles cases appealed from Madison County. We will continue to argue this issue whenever possible and will monitor the progress of this issue going forward.

Bostic v. Georgia-Pacific Corporation, No. 10-0775, Supreme Court of Texas (July 11, 2014)

We often represent defendants in Madison County, Illinois suits alleging exposure to asbestos arising out of events that took place in the State of Texas. In these cases, we routinely file motions to apply Texas law.

The Supreme Court of Texas recently issued its opinion in Bostic v. Georgia Pacific Corporation. The Court held that the standard of substantial factor causation recognized in Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Texas 2007), applies to mesothelioma cases. The Court further held that plaintiffs were not required to prove but for causation to recover on their claim.

In 2002, the Decedent Timothy Bostic, was diagnosed with mesothelioma. He allegedly died as a result of the disease in 2003. Bostic’s relatives, individually and on behalf of his estate (Plaintiffs), sued numerous defendants, including Georgia-Pacific, claiming that the defendants’ products exposed Bostic to asbestos and caused his disease. The case went to trial where Georgia-Pacific was found liable under various theories and the jury allocated 75% causation to Georgia-Pacific. The trial court signed an amended judgment awarding Plaintiffs approximately $6.8 million in compensatory damages and $4.8 million in punitive damages. The court of appeals concluded that the evidence of causation was legally insufficient and rendered a take-nothing judgment.

The Texas Supreme Court agreed that the plaintiffs failed to offer legally sufficient evidence of causation, and adopted the Flores standard in mesothelioma cases. In Flores, an asbestosis case, the Court held that “proof of mere frequency, regularity, and proximity is necessary but not sufficient.” The Court required “defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease.” Plaintiffs argued that the standards established in Flores are not fully applicable in mesothelioma cases because heavy exposure to asbestos is necessary for asbestosis, while exposure to relatively minute quantities of exposure to asbestos can result in mesothelioma. The Court did not find that factual difference persuasive. The Court adopted the Flores framework for mesothelioma cases and held that in mesothelioma cases proof of “some exposure” or “any exposure” alone will not suffice to establish causation. The Court recognized that if it were to adopt a less demanding standard for mesothelioma cases and accept that any exposure to asbestos is sufficient to establish liability, the result would be absolute liability against any company whose asbestos-containing products crossed paths with a plaintiff throughout his lifetime. The Court was not prepared to go that far. Instead, the Court required that a plaintiff establish the dose to which he was exposed by his exposure to the defendant’s products. The dose must be quantified, but not with mathematical precision. Additionally, a plaintiff must prove with scientifically reliable expert testimony that the plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease. A plaintiff will not have established that defendant’s product is a substantial factor if in light of the evidence of plaintiff’s total exposure to asbestos or other toxins, reasonable persons would not regard the defendant’s product as a cause of the disease.

The Court outlined the applicable standard for establishing substantial factor causation, but it did not further require that plaintiffs meet a strict but for causation test. The Court determined that but for causation was inappropriate in multiple exposure cases because of the difficulty to the plaintiff of showing that he would not have become ill but for the exposure to a particular defendant. Accordingly, the Court held that plaintiffs are required to establish substantial factor causation in mesothelioma cases, but are not required to prove but for causation.

The Texas Supreme Court’s decision in Bostic is further evidence of the favorability of Texas state law as it is applied in asbestos cases. As such, we will continue to pursue its application in Illinois cases where appropriate.

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