Illinois Supreme Court Reverses Asbestos Rule

Illinois Supreme Court Reverses Lipke Rule

The Illinois Supreme Court offered hope to manufacturers of asbestos-containing products on April 16 when it struck down the "Lipke rule", a uniquely Illinois precedent that prohibits defendants on trial from bringing in evidence relating to other defendants as additional sources of asbestos injury.

Asbestos, a mineral substance containing microscopic fibers that can cause lung irritation, is the only known cause of mesothelioma, a particularly lethal form of lung cancer that lies dormant for decades. Once diagnosed, most mesothelioma victims rarely live more than 18 months.

The 1987 precedent, Lipke v. Celotex Corp., was established in a Cook County, Illinois trial and bars defendants from introducing evidence based on another defendant who might have settled out of court. For example, if a plaintiff sues five companies, but four settle out of court, the fifth is abjured from suggesting that one of the other four might have caused a defendant's illness.

The 5-1 decision stems from a 2001 case in which Clarence Nolan sued 12 companies for his asbestos-related cancer. Nolan said he developed the illness as a result of working on boilers made by Weil-McClain, a Michigan City, Indiana manufacturer.

Nolan died before his case came to trial in 2004, but a jury awarded his widow $2.3 million in damages. Eleven other defendants, also charged in Nolan's illness, had settled or been dismissed before the trial, leaving Weil-McClain holding the bag for damages.

The company and its Chicago law firm of Edward McCambridge and Cameron Turner subsequently appealed the decision, arguing that the Lipke rule created an artificial courtroom climate in which juries were kept ignorant of all the plaintiff's exposures. The appeal had been denied twice before the current decision was made.

According to McCambridge, the new ruling essentially levels the playing field. It is unfortunate that the ruling, which overturns two appellate decisions, was more than two years in delivery, during which time billions were paid out in Illinois courts for asbestos-related damages, and dozens of companies filed for bankruptcy as a result of settlement claims. These companies include Chicago-based USG Corp. in 2001, which exited bankruptcy via a $4-billion trust to pay asbestos claims, but many of the bankrupt were small firms which used minimal amounts of asbestos in products or whose workplaces contained asbestos as insulation.

Such companies have argued since 1987 that the Lipke rule was unfair because it forced them into settlements that were unaffordable but still represented a better option than going to court and facing juries likely to award even more astronomical sums. This position is supported by Ed Murnane, president of the Illinois Civil Justice League (ICJL).

Opponents argue that Lipke rule reversal will simply widen the pool of defendants. The court, in its ruling, said that the Lipke rule conflicted with its tort-law rulings that the plaintiff bears the burden of proof and the defendant has the right of rebuttal, including identifying another causative factor.

In effect, though, the ruling will give juries the opportunity to listen to the full range of a plaintiff's asbestos exposures, which may make for more just rulings in terms of liability. The full ruling, with Justice Charles Freeman delivering the majority opinion and Justice Thomas Kilbride dissenting, can be viewed at: www.state.il.us/court/Opinions/SupremeCourt/2009/April/103137.pdf

Sources: Madison Record, Newsday, Chicago Tribune

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