CSX lawyer asks justices to reverse Fifth District's second hand asbestos decision

Steve Korris Sep. 22, 2011, 6:13am



SPRINGFIELD – Six of eight state supreme courts have rejected claims of second hand asbestos exposure, according to a CSX Transportation lawyer who wants the Illinois Supreme Court to deliver a seventh blow to second hand claims.

At oral arguments in a Madison County case on Sept. 20, Andrew Tauber of Chicago called on the Justices to reverse Fifth District appellate judges who approved second hand claims.

Tauber said Second District and Fourth District judges ruled that defendants who used asbestos owed no duty to protect third parties.

"They understand that imposing such a duty would be bad public policy," he said.

He said second hand claims would impose a significant burden of litigation.

He said they would increase pressure on solvent defendants to settle claims without merit.

He said second hand claims would separate liability from culpability.

Plaintiff Cynthia Simpkins claims mother Dorothy Simpkins died from inhaling asbestos fibers her husband brought home from his job about 60 years ago.

Her lawyer at the Supreme Court, Timothy Eaton of Chicago, told the Justices the railroad shouldn't have released fibers from its premises.

Justice Mary Jane Theis said, "That certainly sounds like premises liability."

Eaton said, "It does, and it's not."

He said the railroad owed a duty to protect anyone that might come into contact with a hazardous substance.

"This is not a premises liability case," he said. "We are bringing it under ordinary negligence concepts."

Ted Gianaris, of John Simmons's firm in East Alton, and John Cooney of Chicago also represent Simpkins.

Her mother sued 73 defendants in 2007, including CSX as successor to Baltimore & Ohio.

She claimed her former husband carried fibers home prior to their divorce in 1964.

She died soon after suing, and her daughter took charge of the suit.

Circuit Judge Daniel Stack dismissed it, finding no relationship between the railroad and the spouse that imposed a duty on the railroad.

Fifth District judges reversed Stack, finding employers owed a duty to protect families.

They limited the ruling to families but didn't rule out expanding it in an appropriate case.

CSX appealed to the Supreme Court, claiming it faced liability without limit.

As Tauber drew his breath to begin, the blast of a horn penetrated the solemn chamber.

A justice quipped, "Is that the CSX train?"

Tauber said, "I suspect it's one of our competitors."

He said there was no report of second hand exposure until 1964.

He said it was a medical curiosity as late as 1979.

Chief Justice Thomas Kilbride said, "Why isn't that a fact issue? You areasserting that there's just no doubt about it?"

Tauber said, "It was impossible at that point for employers to foresee."

He said their precedents wouldn't recognize a third party claim even if harm was foreseeable.

He said plaintiffs are already able to pursue claims against asbestos manufacturers and companies that exposed workers to it.

"Plaintiffs named 73 defendants in this case," he said.

He said that in no other type of litigation do so many bear such slight responsibility.

"Each defendant is under tremendous pressure to settle," he said.

He said affirming the Fifth District would increase the pressure.

He said Dorothy Simpkins smoked a pack and a half of cigarettes daily for 41 years.

He said her own employment exposed her to asbestos.

He said CSX denied any responsibility and if there was any, it was miniscule.

He said the primary goal of tort law is public safety.

He said that rather than enhancing public safety, second hand claims would merely expand liability.

Eaton answered, "We are not asking this court to adopt a new duty."

He said he didn't consider Dorothy Simpkins a third party.

He said she was exposed by the railroad's failure to control the release and spread of asbestos.

Justice Rita Garman said, "I thought your focus was on Mrs. Simpkins as a family member. You seem to be discussing here a much wider range.

"It could be his barber."

Eaton said it was a good point and the Fifth District left it open.

He said literature in the 1930s dealt with keeping lead and pesticides from coming home.

Justice Charles Freeman said, "Sixty-four, sixty-five is not the date we should be looking at?"

Eaton said, "Absolutely, your honor."

He said, "When we have the opportunity to do it, we will present a full record."

He said that when a driver hits a pedestrian, they have no relationship but the driver had a duty to refrain from hitting someone.

"We are not seeking a derivative duty," he said.

"We are seeking a direct duty to her," he said.

"We aren't saying follo wthem," he said.

"We're saying contain it while it's there on your premises," he said.

"If it doesn't leave the premises, you don't get into the issue of dozens of plaintiffs," he said.

In rebuttal, Tauber said the driver who hits a pedestrian is readily identifiable.

"That's very different from asbestos and that difference leads to a series of policy considerations that lead to a different result," Tauber said.

He said imposing a duty now protects no one.

"We can't change what happened 50 years ago," he said.

He said the settlement dynamic was real and deleterious.

Kilbride said, "How is that a legal factor?"

Tauber said it is terribly deleterious and it separates liability from culpability.

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