More On Nolan Opinion Regarding the “Lipke” Issue in Illinois Asbestos Litigation

Lawyers are starting to react publicly to the Illinois Supreme Court’s ruling on the Lipke issue. One article is pasted below, and quotes a well-respected and veteran Chicago lawyer, Ed McCambridge, as saying:

‘It’s probably the biggest asbestos opinion in the history of the state,” McCambridge said. ”It is clearly going to have a huge effect on how cases will be tried in this state.”

Ed is more than correct about what the opinion could mean. Indeed, the opinion has national implications.

Why? Under (misinterpretations) of the Lipke case decided decades ago, the absurd result was that the last few defendants left in cases in Illinois were under enormous pressure to settle. Why? Because Lipke was construed to say  the jury could only hear evidence of the alleged exposure to the products of the defendant(s) in trial. For example, assume a plaintiff with mesothelioma who spent 10 years working at the old Manville plant in Waukegan, a suburb north of Chicago. Assume he spent his 10 years shoveling the especially lethal amphibole asbestos fibers that Manville used in some of its products. Assume also that outside of work, he once changed car brakes and once changed a gasket on a pump. Under Lipke as misconstrued, the plaintiff could take the brake lining maker and gasket maker to trial, but the defendants could not put in evidence to prove up his work at the Manville work as the sole cause of his mesothelioma. Would that outcome make for an absurd trial and an absurd result? You bet, but trial judges in Illinois applied the law that way for decades, thus making Illinois a favored forum for plaintiff’s to bring cases against defendants with arguably little or no actual role in causing mesothelioma.

As Ed said, the implications potentially are large for the trial of cases in Illinois. The implication also are national because “Illinois values” could now fall for many defendants. That matters nationally because asbestos bankruptcy “liability estimates” have for years been artificially inflated by “Illinois values.” Indeed, I was personally involved in proving in a bankruptcy that the settlement values for one defendant were 8x higher in Illinois than anywhere else in the nation. Therefore,  so long as defendants and insurers do not blow this win with bad trial tactics, Illinois values should drop. The ruling also will be germane to choice of law issues, a topic of increasing importance in asbestos litigation.

Two other observations. One wonders why it took the Illinois Supreme Court almost two years to issue this fairly simple opinion. One also wonders why it took insurers and defendants decades to take up an asbestos verdict and get Lipke reversed. During those years, literally billions of dollars were paid out for asbestos claims filed in Illinois.

http://www.chicagolawbulletin.com/news/get_story_text.cfm?id=100003346&SessionID=2516884

Ruling aids exposure defense on asbestos

By Bethany Krajelis Law Bulletin staff writerSPRINGFIELD — The defendant in an asbestos case should not have been barred from presenting evidence of the decedent’s other exposures to the material, the Illinois Supreme Court held Thursday.

In a 5-1 ruling, the high court remanded the matter of Sally Nolan v. Weil-McLain to the Circuit Court for a new trial and overturned two appellate decisions, saying the lower courts had misinterpreted a rule created in Lipke v. Celotex Corp., 153 Ill. App. 3d (1987), to prevent defendants from introducing evidence of other exposure.

Justice Robert R.Thomas did not take part in the decision and, while Justice Thomas L. Kilbride agreed with the majority that it was an error to exclude such evidence, he disagreed that the error requires a new trial.

Nolan sued 12 defendants, including Weil-McLain, in 2001, claiming that her husband’s death from mesothelioma was caused from asbestos exposure at work. The other defendants settled, leaving Weil-McLain, a manufactorer of cast-iron boilers, the only defendant at trial. A Vermilion County jury awarded Nolan $2.3 million in 2004. The 4th District Appellate Court affirmed the lower court’s ruling, relying on Lipke, Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d (1993), and Spain v. Owens-Corning Fiberglass Corp., 304 Ill. App. 3d (1999). The Lipke court acknowledged there can be more than one proximate cause of an injury, but noted that ”the fact that plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries. Evidence of such exposure is not relevant.” In a 26-page opinion on Nolan’s claim written by Justice Charles E. Freeman, the court agreed with Weil-McClain’s argument that the trial court misinteprepated Lipke in barring the defense from preventing evidence of other sources of asbestos exposure that Clarence Nolan had encountered. ”Lipke simply determined that evidence of the plaintiff’s other exposures was not relevant to the specific defense raised, i.e., that the plaintiff did not have an asbestos-related disease,” Freeman wrote. ”In the matter at bar, however, defendant wishes to offer evidence of decedent’s other exposures for different purposes: to contest causation through the use of the sole proximate cause defense, which was not raised by the Lipke defendant.” Because the Kochan court extended the Lipke rule to say that evidence of other exposure is always irrelevant, which the justices acknowledged basically makes it impossible for asbestos defendants to argue a sole proximate cause defense, the high court overruled that portion of the Kochan decision. In overruling Kochan and Spain, the high court also relied on its decisions in Thacker v. UNR Industries Inc., 151 Ill. 2d (1992), and Leonardi v. Loyola University of Chicago, 168 Ill. 2d (1995). And while Kilbride agreed with most of the majority opinion, he said in his dissent that the error of not allowing evidence of other exposure at trial does not merit a new trial. He noted that other evidence that was admitted did provide Weil-McLain grounds for a sole proximate cause defense. ”[A] new trial is not warranted because Weil-McLain was able to receive a fair, albeit not perfect, trial in spite of the trial court’s ruling,” Kilbride wrote. Nolan’s attorney, David A. Novoselsky, said Kilbride’s dissent says it all. ”In my opinion, the defendant got a fair trial here,” Novoselsky said. ”This jury heard all of the evidence. It’s as simple as that.”

Novoselsky said he plans to recommend that his client petition for a rehearing before the high court. He said he would ask the justices to consider Kilbride’s dissent.

Richard P. Godfrey, who represented Weil-McLain at oral argument, said he was pleased with Thursday’s opinion and believes the ruling will have an impact on a number of other cases.

Edward J. McCambridge, the national coordinating counsel for Weil-McLain, said Thursday’s opinion is not only huge for the company, but for asbestos litigation in general. ”It’s probably the biggest asbestos opinion in the history of the state,” McCambridge said. ”It is clearly going to have a huge effect on how cases will be tried in this state.”

Edward Murnane, president of the Illinois Civil Justice League, and Gregory L. Cochran, the president of the Illinois Association of Defense Trial Counsel, both said they welcome the long-awaited decision with open arms.

#AsbestosBankruptcy #Asbestoslitigation #Science

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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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