Madison - St. Clair Record

Thursday, October 17, 2019

Lipke Rule prevents asbestos defense from presenting best

By Steve Korris | Jun 23, 2005

Luke Lindau

In the eyes of asbestos defense attorneys, a 1987 appellate court ruling that has been bolstered over the years is "naked legal fiction," unfairly keeping them from pointing to the negligence of others.

Established by the First District Court of Appeals, the longstanding Lipke Rule is under challenge in the Fifth District.

The court will consider the appeal of an Indiana boiler maker asking that a 2004 verdict in Vermilion County be overturned because it was not allowed to introduce evidence of the asbestos plaintiff's exposure to other products.

"The state of the law and state of the science of asbestos-related illnesses are not in sync,” said Vermilion County Circuit Judge Craig DeArmond after presiding over the trial. The jury awarded the widow of mesothelioma victim Clarence Nolan $2.3 million.

"Lipke," which regards evidence of other exposure as irrelevant, has become the bane of a mass number of defendants who've faced asbestos litigation in Illinois--believed to be the only state with such a rule. Its namesake, Cook County asbestos plaintiff Donald Lipke, was successful in his demand for damages from multiple defendants.

Even though DeArmond did not feel right about allowing plaintiffs to speculate on the cause of Quaker Oats factory worker Nolan's disease--while keeping defense from presenting its best evidence--he figured he had no choice.

DeArmond, who reluctantly followed Illinois appellate court's Lipke Rule, said it created "an undefendable posture for defendants in asbestos litigation.

“The Lipke rule as it is now applied presumes guilt,” he wrote.

Defendant Weil-McLain appealed DeArmond's order denying a motion to overturn the verdict or grant a new trial.

Among other points, Weil-McLain argued that DeArmond should have admitted evidence of Nolan’s exposure to products of other companies.

DeArmond had excluded evidence of exposure to products of four other defendants that settled on the eve of trial. He had excluded a 1988 deposition in which Nolan identified products of other companies to which he had been exposed.

On Weil-McLain’s motion to overturn the verdict or grant a new trial, DeArmond wavered for six months.

When he issued an order denying the motion, he wrote that he had reconsidered several times.

Defendants, he wrote, have no opportunity to point to the negligence of another as the sole proximate cause of injury.

DeArmond said that circumstantial evidence cannot be based on mere speculation or conjecture.

“However, as the evidence in this case has shown, that is exactly what plaintiffs’ experts do,” he wrote.

DeArmond did not criticize the Lipke decision. He focused on a 1993 decision of the Fifth District in Kochan vs. Owens Corning Fiberglass.

DeArmond wrote that Lipke applied to punitive damages, after the trial court had established the cause of a disease. Kochan, he wrote, applied Lipke before the determination of causation.

As the rule stands, he wrote, a negative premise is sufficient to establish causation. He wrote that, “…this was not the intention of the court in Lipke.”

Lipke in Madison

In Madison County, asbestos defendant Union Carbide pleaded with Circuit Judge Daniel Stack to ignore Lipke in a suit filed in 2003 by Arlington Heights painter Luke Lindau, who suffers from mesothelioma. Lindau settled out of court for a reported $4 million in January.

In a motion to admit evidence of other exposure, Union Carbide attorney Robert H. Shultz Jr., of Heyl, Royster, Voelker & Allen of Edwardsville, called Lipke “a naked legal fiction that turns orderly procedure on its head.”

“It misleads juries about critical facts in the case," Schultz wrote. "Its prejudicial effect is so draconian that it deprives Union Carbide of its constitutional rights to a fair trial.

"It is an anachronism contrary to both sound law and sound science.”

Lindau alleged that he has an asbestos-related disease and that a Union Carbide product, Calidria, caused it.

Shultz argued that the risk posed by Calidria was so small compared to the risk posed by other products that Calidria was probably not a substantial contributing cause of anyone’s disease.

"But the jury is effectively deprived of the evidence it needs to fairly decide those issues if it is permitted to hear only evidence of exposure to Union Carbide’s asbestos,” Schultz wrote.

Shultz listed Lindau’s exposures to products of other companies on jobs from 1946 to 1959. He wrote that Lindau smoked Kent cigarettes, which for a period of time used filters that contained a potent form of asbestos.

“In federal and state courts in the remaining 49 states, juries have, over the long history of asbestos litigation, routinely heard evidence of all of a plaintiff’s exposures in resolving the fact issues before them,” Schultz wrote.

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