Insurers, business groups and tort reformers file brief opposing secondhand exposure theory

John O'Brien Feb. 16, 2011, 6:55am


A coming ruling from the Illinois Supreme Court could offer asbestos attorneys with a new group of plaintiffs.

Insurers, business groups and tort reform associations recently filed an amicus brief in a Madison County lawsuit that alleges secondhand exposure.

The plaintiff is the estate of a woman who alleged she was exposed to asbestos fibers caught on her husband's clothes when he came home from working at a railroad company.

Former Circuit Judge Daniel Stack dismissed the case, but the Fifth District Appellate Court reversed the decision. The decision made no determination if the railroad breached its duty to prevent Annette Simpkins, who died of mesothelioma in 2007, from being exposed to asbestos, only that Simpkins' case could proceed with her claim that the company did.

If the appellate court's decision is affirmed, "Illinois employers would be subject to potentially limitless and indefinite liability, needlessly prolonging the asbestos litigation and adding to the already huge number of Illinois filings," the brief says.

The case is an example of asbestos attorneys crafting new legal theories to sustain asbestos litigation, the brief says. It adds that the highest courts of Delaware, Georgia, Iowa, Michigan and New York have rejected "take-home" exposure claimants.

"Claims such as the instant appeal are generally failing across the board because courts and legislatures have appreciated that allowing a new cause of action against landowners by remote plaintiffs injured off-site would be inconsistent with traditional duty rules and worsen the asbestos litigation," the brief says.

Among the organizations signing the brief are the Illinois Civil Justice League, the American Tort Reform Association, the National Association of Mutual Insurance Companies, the National Association of Manufacturers and the U.S. Chamber of Commerce.

The Madison County Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

The Fifth District sided with the plaintiff in a decision filed June 10. CSX Transportation is the defendant, after having taken on the liability responsibilities of B&O Railroad after the two merged.

"Whether a relationship exists between the parties that will justify the imposition of a duty depends on four factors: (1) the foreseeability of the harm, (2) the likelihood of the injury, (3) the magnitude of the burden involved in guarding against the harm, and (4) the consequences of placing on the defendant the duty to protect against the harm," the decision says.

"Our determination of duty is informed by public policy considerations. As a matter of public policy, it is best to place the duty to protect against a harm on the party best able to prevent it. Applying these principles, we find the out-of-state cases that have found a duty in similar circumstances to be more persuasive than those that have not."

The Fifth District said it was most persuaded by decisions in Tennessee and New Jersey.

"The question... is not whether the employer actually foresaw the risk to Annette Simpkins; rather, the question is whether through reasonable care, it should have foreseen the risk," the decision says.

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