Asbestos: The Nolan Decision and the Reestablishment of Sanity in Illinois Asbestos Litigation

Attorneys: Blackman, Jr., Charles E.

On April 16, 2009, in a long awaited decision, the Illinois Supreme Court in Nolan vs. Weil-McLain, docket no. 103137 (2009) brought Illinois in line with the law of 49 other states in regard to the application of the rules of evidence in asbestos litigation by allowing remaining asbestos defendants at trial to point out to the jury a plaintiff's other asbestos exposures to settled or non sued asbestos manufacturers and/or premises owners in establishing a sole proximate cause defense.
Up until the Nolan decision, the seminal case in asbestos litigation had been the 1987 appellate court decision in Lipke vs. Celotex, 153 Ill.App.3d 498 (1987) and its interpretations in the subsequent Kochan vs. Owens-Corning Fiberglass, 242 Ill.App.3d 781(1993) and Spain vs. Owens-Corning Fiberglass, 304 Ill.App.3d 336 (1995). The Lipke rule, as it came to be known, stated simply that asbestos, unlike any other potential cause of injury, was unique because it was impossible for a plaintiff to establish which fiber or fibers specifically caused his asbestotic disease, be it asbestosis, lung cancer or mesothelioma. As such, the asbestos plaintiffs' bar had successfully argued for twenty years that evidence of exposure from a settled or non sued asbestos product manufacturer or premises owner would confuse a jury and be highly prejudicial. As a concurrent cause of decedent's injury, the Illinois courts had consistently held exposures other than that of the litigating defendant would be irrelevant and therefore barred pursuant to Lipke.
The practical effect of the Lipke rule was that the plaintiff would only have to show that the plaintiff was suffering an asbestotic disease and that, pursuant to the Thacker vs. UNR Industries, 151 Ill. 2d 343 (1992) decision, the plaintiff was exposed to friable asbestos from a defendant's product or exposed to friable asbestos on the defendant's premises. The plaintiff could then successfully bar defendants, pursuant to the Lipke case as interpreted by Kochan and Spain, from presenting any evidence that the plaintiff was exposed to any other asbestos products or exposed at any other locations.
In Illinois, at the present time, there are three primary types of asbestotic related disease that are litigated. The two less financially rewarding for the plaintiffs' bar are asbestosis, which requires an extremely lengthy exposure to asbestos in order to develop and is somewhat analogous to black lung disease, and lung cancer which can be caused by asbestos, but whose causation is muddied by the fact that the plaintiff is usually a smoker.

Finally, there is the disease that is the foundation of the Lipke rule, mesothelioma. If one listens to the radio or watches TV, one is aware that the gold standard of plaintiffs' litigation is mesothelioma. Mesothelioma is an extremely rare cancer of the outside of the lung that has been diagnosed with increasing frequency over the last 30 years. The only known cause of mesothelioma that exists in the United States is exposure to asbestos fiber; both plaintiff and defense experts will agree on this fact.
One of the key areas of dispute, however, is the type of asbestos fiber that will cause mesothelioma. The most common asbestos fiber mined, manufactured and used in the United States is chrysotile, a serpentine type fiber which is not thought to cause mesothelioma by most defense experts. It is estimated that 95% of the asbestos products in the U.S. were made with chrysotile type asbestos. Amphibole, or a straight type of fiber, commonly found in South Africa is thought by most defense experts to be the only cause of asbestos-related mesothelioma.
Most plaintiffs' experts maintain that any type of asbestos fiber will cause this disease. Plaintiffs' experts will also contend that only one or two asbestos exposures will also cause this disease. The issue of causation is further clouded by the fact that both defense and plaintiffs' medical experts agree that mesothelioma does not develop from asbestos exposure until 20 to 40 years after the initial exposure.
The practical effect of the Lipke rule for asbestos defendants was typically as follows: Plaintiff, possibly an insulator, who had been working 35 years installing asbestos which was admittedly friable, used different products, being exposed at different premises not only to the asbestos he was installing, but also other asbestos products on those premises. Plaintiff would then sue anywhere from 30 to 50 defendants, both product and premises. Most of these defendants eventually will settle out, leaving one or two defendants at trial. Should the matter proceed to trial, though the plaintiff may have been on the remaining defendants' premises for as little as two weeks, or maybe used a particular defendant's product no more than perhaps a month or less, the defendants would be barred from presenting any evidence of any other exposures under the Lipke rule.
The effect was to leave a sole defendant with only the defense, usually presented via a defense expert, testifying that the plaintiff's exposure to its products was primarily composed of chrysotile asbestos, or that the plaintiff's presence on the premises for one to two weeks duration was not a proximate cause of his mesothelioma. However, because of the Lipke rule, the defendant could not point out the numerous other products the plaintiff was exposed to over his many years of work as an insulator, nor the different premises on which he worked that could have contributed to his asbestos exposure. This left the jury ignorant of the plaintiff's other asbestos exposures and as a practical matter nullified a defendant's most powerful argument.
In the Nolan case, the defendant Weil-McLain faced this very dilemma. Though their experts testified that their product was comprised primarily of chrysotile asbestos and in their opinion did not cause the mesothelioma in the plaintiff, they were barred from pointing to the many other exposures that this particular plaintiff had through his 38-year career to amphibole asbestos.
The supreme court in the Nolan decision frequently quoted the trial judge, who wrote a 58-page order citing the flaws that were implicit to the interpretation of the Lipke case, but nevertheless granted the plaintiff's motion in limine to bar the evidence of other exposures based solely on feeling compelled to do so in light of the Lipke line of cases.
On appeal, the Nolan court rejected the plaintiff's contention that asbestos cases were completely unlike other tort cases and called for different rules of proof. The court stated Lipke, on its face, had different facts than the factual situations in most of its prodigy, particularly Kochan and Spain. The court stated that, according to Thacker, a plaintiff must meet the frequent regularity and proximity test for asbestos exposure to establish a legal causation. The court added that "Thacker only allowed the plaintiff in an asbestos case to establish a possible causation and thereby shift the burden of production to the defendant. However, the ultimate burden of proof on the element of causation, remains exclusively on the plaintiff and never shifted to the defendant." Nolan, Docket No. 103137, at p. 15.
The court pointed out that the issue, which was not present in Lipke and was misinterpreted in Kochan and Spain is that the defendant may offer evidence of the plaintiff's other exposures to contest causation for a sole proximate cause defense. The supreme court further states that the Kochan court erroneously extended Lipke to hold that other asbestos exposures are always irrelevant. The court finally stated that the circuit court relying on the appellate court's erroneous decisions prevented a defendant from presenting evidence of a plaintiff's other asbestos exposures in its sole proximate cause defense.
The practical effect of this ruling will be to allow asbestos defendants, be they product or premises, through expert testimony to properly examine the evidence and attempt to establish that exposure to the defendant's product, or by implication exposure on defendant's premises, was insufficient to cause the plaintiff's current asbestotic disease. Defendants will no longer be blocked from pointing to other potential proximate causes of asbestos diseases in the plaintiff's work history. This ruling now brings the State of Illinois in line with the rulings of the other 49 states and once again would render through proper expert testimony, asbestos cases defendable in the State of Illinois.
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A shareholder in Querrey & Harrow's Chicago office, Charles Blackman is an experienced attorney who has tried approximately 65 cases to verdict. Chuck concentrates his efforts in premises, construction, transportation, and asbestos litigation.

As the local counsel for a major American steel company, Chuck handles a variety of cases, including those which involve asbestos, premises and environmental litigation. In addition, he represents the company on contractual issues.

If you have any questions regarding this article or Querrey & Harrow's toxic tort defense practice, please contact Chuck via Blackman, Jr., Charles E., or via 312-540-7682.

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