Court Upholds Ruling Limiting Claims against Aurora

An appellate court in Illinois's second district, Judge Donald J. Fabian presiding, has upheld a previous ruling in a Kane County trial that found Aurora Equipment Company was not liable in the death of the female relative of Vernon and John Q. Nelson.

The case involves Eva Nelson, deceased, whose husband, Vernon, and son, John Q, acting on her behalf after her death, sued Aurora Equipment Company for damages for having caused her death.

Both Vernon and John Q. worked at Aurora Equipment Co., Vernon from 1968 to 1987, and John from 1977 to 1993, painting and packaging steel items sold by Aurora.

Eva was never employed by Aurora, but came into frequent contact with asbestos dust from the clothing that Vernon and John wore home. Eva also washed the contaminated clothing items, incurring even more asbestos exposure.

As a result of this constant and proximate contact, her husband and son say, Eva developed mesothelioma and colon cancer, and died on January 9, 2004. Vernon and John also noted that Eva had another source of exposure, but that part of the testimony did not weigh in the case.

At the end of the Kane County trial, Aurora Equipment filed a motion for summary judgment on the basis that, first, it had no duty to Eva, and, second, that there was no evidence that Eva was exposed as a result of its activities.

The trial court agreed with the Nelsons that Eva's injuries and death were foreseeable, but refused to impose a penalty, granting a motion to Aurora on November 13, 2007 on the basis that the magnitude of blame and the consequences of assigning it to Aurora created a literally endless pool of plaintiffs. Thus the court refused to address the issue of proximate cause, and, on Feb. 5, 2008, denied the plaintiffs' motion to reconsider based on Supreme Court Rule 304(a), which is aimed at preventing piecemeal appeals.

When the case was appealed and heard in the Second District Appellate Court, the court based its reaffirmation of the Kane County court ruling, and its decision, on the common- law understanding that, a: the plaintiff and defendant had a relationship that implied an obligation of reasonable conduct, b: that negligence implies the existence of a duty owed by the defendant to the plaintiff, and c: that the cause of action is a breach of that duty causing injury.

In issuing this decision, the appellate court relied on a Supreme Court rule that states the victim must either be on the property or have (or have had) some special relationship with the defendant.

Once that ruling was established, the appellate court refused to consider the second argument, that Aurora caused Nelson's death, Since the Supreme Court's ruling did not allow for a connection.

The ruling is not surprising, even in light of a study conducted by the Agency for Toxic Studies and Disease Registry (ATSDR) in Libby, Montana in 2001 showing that 29 of the respondents had lung abnormalities (symptoms of asbestos exposure), even when they had never worked in the W.R. Grace mine. This percentage likely became contaminated as spouses, relatives or children of Libby mine workers, who traditionally brought asbestos particles home on their clothing.

Unlike tobacco, second-hand asbestos exposure has achieved little in the way of compensatory damages in American courts. The case is quite different in European and Australian courts, however, where spouses of asbestos workers who develop asbestos-related diseases fare quite well in terms of damages. To its credit, however, the U.S. Supreme Court has ruled that mental anguish (e.g., the fear of developing asbestos-related diseases) is actionable, at least in terms of railroad workers under the Federal Employers Liability Act.

Asbestos, a fibrous mineral used in insulation, floor and ceiling tiles and tile adhesives (as well as diesel engine and automotive brake pads), is known to cause asbestosis, lung and digestive system cancers, and mesothelioma - a form of cancer of the mesothelial tissues of the lung and abdomen that typically lies dormant for decades. When it is ultimately diagnosed, patients are commonly given about 18 months to live.

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