IIllinois’ Statute of Repose Is Gone for Premises Claims, Subject to Litigation Challenges

As expected, outgoing Governor Quinn of Illinois has signed a bill ending Illinois’ 10 year statute of repose for “premises” asbestos claims. The back story is here, and is part of a larger story of changes in Illinois law relevant to trying mass tort lawsuits in Illinois. Another key change is that Illinois will now use six person juries.

Some on the defense side will complain bitterly about the demise of the statute of repose. Others will say the change may be good for “peripheral” defendants because the ability of plaintiff lawyers to target some owners of some big sites may (repeat, may) reduce the demands to “peripheral defendants”  when plaintiff lawyers are trying to recover money for persons who are dying of lung cancers and mesotheliomas. Others will argue that demands and payments will not go down to anyone, and instead the overall plaintiff’s recovery will increase. The plaintiff’s bar will say statutes of repose were never fair given the realities of latent disease.

Ultimately, it will be tough to discern the truth – in public. Why? Because there is virtually no transparency as to asbestos settlements; all sides usually seek to keep the numbers “private.” That lack of transparency will make it hard for defendants to prevail when they file inevitable challenges to the law. After all, after decades of statutes of repose, the insurance industry should have and in fact does have vast amounts of actual settlement amount data that could be parsed to show the actual financial effect of statutes of repose. But the full set of data will never see the light of day, in my opinion.

Once again, it bears repeating: ” Be careful what you wish for.” Taking extreme positions in the short term can have long term downsides, and that applies for all persons who are repeat players in mass tort litigation. In this instance, defendants and insurers have lost a statute of repose in a state that hosts 30-40% of all mesothelioma claiming.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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