In Neumann v. Borg-Warner Morse Tec LLC, et al. (Case No. 1:15-cv-10507), the United States District Court for the Northern District of Illinois granted Defendant’s motion to dismiss in this “take-home” asbestos exposure case. The Court determined that Plaintiff’s negligence claim failed because Defendant did not owe Plaintiff a duty of care. The Court’s decision fails to provide any guidance about how this issue will be settled in Illinois in the future.
In this case, Plaintiff Doris Jane Nuemann’s son, Greg Neumann, worked as a gas station attendant and mechanic during the early 1970s. He worked with various asbestos containing products, including friction paper supplied by Defendant MW Custom Papers. While handling the friction paper the son was allegedly exposed to high levels of asbestos fibers that he carried home on his clothing. Doris Neumann was then allegedly exposed to those asbestos fibers through contact with her son, and while laundering his clothing. She was diagnosed with mesothelioma on September 17, 2015.
Ms. Nuemann filed a negligence claim against various defendants in Illinois state court. The action was removed to federal court, and MW Custom Papers brought a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). MW Custom Papers contended that it owed no duty Ms. Nuemann.
Under Illinois law, “if a course of action creates a foreseeable risk of injury, the individual engaged in that course of action has a duty to protect others.” The question addressed by the Court in Neumann was whether Illinois does (or should) recognize a duty running to family members in take-home asbestos cases. As a federal court sitting in diversity, it is the job of that court to apply state substantive law as it believes the highest court of the state would apply it. Illinois appellate courts are split on this issue, and there is no explicit direction from the Illinois Supreme Court on this issue either. Due to this split and lack of direction, the Court determined it would be impossible to anticipate how the Illinois Supreme Court would rule, so it looked to other sources. The court looked to decisions of intermediate appellate courts, other relevant state precedents, and the reasoning of courts in other jurisdictions. After consulting these sources, the Court determined that there are no precedents or authorities that are convincing as to how the Illinois Supreme Court would rule on this issue.
Without any definitive direction on this issue, the Court applied the principle that when it is faced with two opposing and equally plausible interpretations of state law, it generally will choose the narrower interpretation that restricts liability, rather than the more expansive interpretation that creates more liability. Applying that principle, the court adopted the narrower view of duty followed by the Illinois Fourth District Appellate Court in Holmes v. Pneumo Abex, L.L.C. (In re Estate of Holmes), 353 Ill. Dec. 362 (4th Dist. 2011), and found that MW Custom Papers did not owe a duty to Neumann, in light of the magnitude of the burden of protecting her and the ramifications of imposing that burden on MW Custom Papers.
As the Court’s opinion makes clear, whether a duty is owed to family members in take-home asbestos cases is an unsettled issue in Illinois. There is such a split of opinion, not only in Illinois but in jurisdictions throughout the country, that it is impossible to forecast how the issue will eventually be settled when it reaches the Illinois Supreme Court. We will continue to monitor this issue going forward.