Lipke rule decision expected tomorrow from Illinois Supreme Court

Amelia Flood Apr. 15, 2009, 11:14am

SPRINGFIELD – A key evidence rule in Illinois asbestos cases could stand, fall or change tomorrow when the Illinois Supreme Court releases its ruling in the case of Nolan v. Weil-McLain.

The rule, which prohibits defendants in asbestos cases from introducing evidence of a plaintiff's exposure to other asbestos products, is known as the Lipke rule. A change or the end of Lipke could have a significant impact on some defendants in asbestos cases.

The ruling will be filed at 9 a.m. Thursday.

The Lipke rule was established by the First District Appellate Court in 1987. Illinois is the only state with a ruling like Lipke.

It has drawn criticisms from defendants as well as the trial judge in the Nolan Case, Vermilion Circuit Court Judge Craig DeArmond.

DeArmond stated he felt that the law and science surrounding asbestos-related illnesses was "not in sync."

If the court scraps the rule tomorrow, it could be a boon for defendants, particularly peripheral or those whose products contained low doses of asbestos, said Mark Behrens, a Washington D.C. based lawyer with Shook, Hardy and Bacon.

Behrens has represented a number of defendants in asbestos suits and has written articles on the topic. He also is the author of an amicus brief in the Nolan case.

Behrens contends the Lipke rule is one-sided and that defendants are forced into settlements in order to avoid it.

"Nobody wants to be the last man standing at trial," Behrens said.

Under Lipke, a defendant can only deny that the asbestos in their product caused the plaintiff's complaint. The rule does not allow them to introduce evidence of another exposure source.

"There's really no way to say 'It wasn't my fault,'" Behrens explained. "It's a system that's set up to disadvantage defendants."

Part of the failure of Lipke, Behrens argues, is that the rule has not kept pace with legal times or science of asbestos research.

"They just looked at it as 'asbestos is asbestos," Behrens said of the early days of the product's litigious history. However, as science has determined there are different kinds of fibers, different uses and different make-ups, it means that the waters have been muddied, he says, about how Lipke should be applied.

The Nolan case initially ended with a verdict for the plaintiff in 2004 in Vermilion County. In it, plaintiff Sally Louise Nolan sued Indiana boiler maker Weil-McLain, alleging that her deceased husband's death from mesothelioma was caused by asbestos exposure while working with the company's products.

Nolan's husband had filed another asbestos lawsuit in 1998 that did not name Weil-McLain. DeArmond did not allow Weil-McLain to introduce evidence from the prior lawsuit nor a 1988 deposition taken from Nolan's husband, Clarence, that argued Nolan had been exposed to other asbestos products.

In the 2004 case, a jury awarded Nolan $2.3 million. Weil-McLain appealed, arguing the trial court should have allowed evidence that the Lipke rule currently excludes. The appellate court upheld the trial court's ruling. The case then moved up the ladder until it reached the Illinois Supreme Court.

In Behrens' mind, it is difficult to predict what the Supreme Court will do.

"If the court lets it stand, it's business as usual in Illinois," he said. "And defendants will feel pressured to settle because they can't get a fair trial."

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