Timing was right for 'historic' Nolan ruling

The Madison County Record Apr. 24, 2009, 12:00am






Edward McCambridge had been waiting a long time for last week's ruling by the Illinois Supreme Court. And, Lester Brickman knows the feeling.

Both said in interviews this week that the wait was worth the result, as the Illinois Supreme Court struck down the two-decade old controversial Lipke Rule, as it is commonly known.

For years legal professionals, insurance companies and asbestos defendants argued the Lipke Rule robbed defendants in asbestos lawsuits fundamental points of law to defend their case. Now the state Supreme Court agrees.

McCambridge, a shareholder in the Chicago firm of Segal, McCambridge, Singer & Maloney, worked as the coordinating counsel for the defendant in the 2004 case Nolan v. Weil-McLain. He tried the case in the lower courts and organized the appeal to the state Supreme Court.

Then, like the rest of the Illinois legal profession, McCambridge waited for two years for the state's High Court ruling. The ruling handed down last week gave McCambridge and his clients a sweeping legal victory, erasing a law that barred defendants from introducing evidence of other asbestos exposure.

"This is the most significant decision in the history of Illinois asbestos litigation," McCambridge said. "It brings Illinois in line with the rest of the country as to the defendant's ability to challenge causation."

Brickman, a law professor at the Benjamin N. Cardozo School of Law in New York and widely regarded as the nation's leading asbestos legal scholar, said he had grown weary waiting for a defendant to challenge the so-called Lipke rule – named from the 1987 case that established the legal precedence – in court, even to the United States Supreme Court, if necessary.

"I have been very critical of defense lawyers in Illinois for failing to appeal the Lipke ruling," Brickman said. "At the time, eight or 10 years ago, that appeal would have lost. But the whole purpose of that strategy was to take it to the U.S. Supreme Court, because I believe it was clear abuse of the process of law."

As it turned out, timing was everything.

The time was right

The case of Nolan v. Weil-McLain, centers on a plaintiff who sued Weil-McClain, a boiler manufacturing company, for his exposure to asbestos.

McCambridge said the plaintiff "had about 60 days working with a boiler over a career of 40 years of work." Also, the defendants argued in court that the asbestos in boilers was the less potent chrysotile, and not likely the source for the plaintiff contracting mesothelioma.

But the Lipke Rule barred the defendant from introducing evidence of the plaintiff's exposure to other asbestos.

David Holmes and Anthony Michael Goldner, attorneys at the Chicago firm of Wilson Elser, explained the impact of the Lipke Rule in a legal post last week.

"In Lipke v. Celotex Corp., the appellate court ruled that evidence of other exposure was not relevant if there was evidence that the defendant's product caused the plaintiff's injury. For the past 21 years, courts have interpreted Lipke to mean that a defendant may not argue that a plaintiff's exposure to a settling or non-party's asbestos was a contributing cause or the sole cause of a plaintiff's injury," the authors wrote.

The Illinois Supreme Court ruled that the trial court erred in prohibiting the defendants from introducing the evidence of other exposure.

The Lipke Rule, the justices wrote in the Nolan decision, "left Illinois standing alone in excluding evidence of other asbestos exposures, and conflicted with our well-settled rules of tort law that the plaintiff exclusively bears the burden of proof to establish the element of causation through competent evidence, and that a defendant has the right to rebut such evidence and to also establish that the conduct of another causative factor is the sole proximate cause of the injury."

The case will now have to be re-tried in a lower court.

Kirk Hartley, a Chicago defense attorney who writes a blog tracking asbestos cases, wrote that while the ruling had "Defense lawyers, defendants and insurers all smiling," the delay in the ruling was not without significant cost.

"One wonders why it took the Illinois Supreme Court almost two years to issue this fairly simple opinion," he wrote. "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."

Theodore Frank, resident fellow at the American Enterprise Institute for Public Policy Research, wrote of the cost of these delays in even stronger terms.

"This… effectively forced hundreds of defendants to pay billions of dollars of extortion money," he said.

But tort reform experts believe the timing played a significant factor in the eventual decision. Brickman admitted that a defendant would have "taken a big hit" to push the case to the U.S. Supreme Court earlier.

"I am confident in my assessment that this would have been struck down, but nobody did that until this time," Brickman said. "The Illinois Supreme Court has become much more moderate from when it was the most trial-lawyer friendly court in the country."

Frank offered a similar assessment of the state's top court in a report he wrote for PointofLaw.com.

"The Illinois Supreme Court is a court that respects the rule of law much more than it used to," he wrote.

A second factor played a role in the timing, according to Mark Behrens, an attorney in Washington, D.C. who wrote an Amicus Brief for the Nolan case. Behrens believes that while the Lipke Rule may have made sense back when it was issued, medical advancements in the understanding of how asbestos contributes to mesothelioma makes differentiating that exposure in court far more relevant now.

Still, the state Supreme Court's deliberation over the case had been a constant source of consternation among defense attorneys, as Hartley noted.

During his presentation at a recent asbestos conference in Los Angeles, Jonathon Lively, an attorney with Segal McCambridge, threw up his hands in describing "this highly contested case in Illinois, of which we are still awaiting a ruling from the state Supreme Court.

"We all throw up our hands and say, 'When is this decision going to come down?'"

Once it did, it caught many by surprise, Goldner said after the ruling was announced.

"The decision was a big surprise," Goldner said, "but it is definitely all in all a very good thing for us. It has limitations, but at least we get to argue about this now."

McCambridge admitted the decision may have caught others by surprise but said his firm never swayed from its belief their case would overturn the Lipke Rule.

"We were not surprised that we finally got this issue before the state Supreme Court, and based on the trial judge's opinion -- where he really hammered the Lipke Rule -- we were not surprised the Supreme Court took it, and were not surprised it was overturned," he said.

More trials, fewer settlements

Though it will take years of legal cases to fully establish the impact of the Nolan case, legal professionals have started to consider how asbestos litigation in Illinois might change.

Goldner stressed that defense attorneys will have to look for the right set of details, including the amount of exposure from a given source like chrysotile, and the type of exposure, as was the case in Nolan to take the chance on going to trial.

"Low-dose defendants are more apt to take specific cases that fall in line with the ruling in Nolan to court," he said.

But he stressed, plaintiff attorneys aren't exactly tossing out cases they intend to file.

"I've talked to a number of plaintiffs' counsel and I don't think it's just brave talk, I don't think they are running scared," he said. "There may be more trials, they admit, but they say they'll be fine. I suspect they will be."

Under the Lipke Rule, being the last defendant in a case created enormous pressure to settle, even if the amount of exposure was minimal compared to other companies that had already settled, attorneys interviewed for this story stressed.

"Nobody wants to be the last man standing at trial," Behrens said, in an earlier interview prior to the ruling.

But now, defendants can effectively point the finger at other defendants, which is not insignificant. With so many companies who had blatant use of asbestos already protected by bankruptcy courts, and with established trusts to pay defendants, those remaining in civil court are often defendants with far less direct connections to asbestos, as was the case of the boiler company in Nolan.

McCambridge said defense cases now have offer "a quantitative difference" that can focus on the differences between types of asbestos and the nature of the exposure. Simply put, "Now that lone defendant or any defendant can show the jury and tell the jury 'here is these other exposures, and here is what likely what caused the mesothelimoma.'"

Not all the risk is removed from defendants who opt to go to trial rather than settle. In Illinois, joint-and-several liability still stands, which means each defendant in a given suit is wholly responsible for the entire award if determined to be responsible by the jury.

"In Illinois it is basically, if you're found responsible for one percent you are on the hook for the whole thing," Goldner said.

Still he expects there to more defendants willing to take a chance at trial.

"I can see taking a shot, and saying, 'let's see how this works,'" he said. "There's still risk, but at least you now have the support of the Supreme Court on your side to some extent."

McCambridge said he expects plaintiffs to reconsider who they name as a defendant largely because defendants are now at least willing to consider taking the case to trial.

"It's going to make the plaintiffs think about getting rid of a lot of defendants because if they don't get rid of them there will be a lot of defendants that say, "I'll try this case.'" he said.

Brickman agreed.

"I think it will be increasingly likely that some defendants in mesothelioma cases will roll the dice and go to trial," he said.

Venue shopping

Whether the Nolan decision has a significant impact on reducing the actual number of cases filed in Illinois remains to be seen, experts say.

Brickman said the legal implications of the state Supreme Court's ruling will still have to be hammered out in court.

The critical one is whether you can argue to the jury that another entity is responsible for causing the mesothelioma if that entity is in bankruptcy only paying five cents on the dollar," Brickman said. "Some states allow that, others do not. We'll have to see what Illinois does. That could result in a major change."

Overall, McCambridge said Illinois will lose some of its luster as one of the most plaintiff friendly asbestos dockets in the country.

"It will definitely make Illinois not as attractive as it once was," McCambridge said. "There is no question Illinois loses that stigma. I would suspect people might choose other venues."

Goldner said he expects to see a rise in cases that actually go to trial, though perhaps not on the number of cases filed. He pointed to the rising number of asbestos cases in Madison County, many of which are out-of-state plaintiffs.

"Everyone said it won't destroy asbestos litigation in Illinois," Goldner said. "We all know that. It might mean more trials, and perhaps lower settlements, but I don't know that's going to happen."

Just as the Nolan case took two decades to reverse the Lipke case, future cases will further define the implications. But McCambridge said he is confident that the case will have a lasting impact on balancing the scales of justice in Illinois asbestos cases.

"The key to this whole thing is it changes the nature of asbestos trials," McCambridge said. "It seems really kind of basic, but it does change the nature of the way a case is tried in Illinois. It will take a while to sort out how judges will deal with this, because they aren't used to dealing with it. But I think it will have a real impact on how cases proceed from now on."

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