Justices: Causation is asbestos plaintiffs' burden

By Steve Korris | Apr 16, 2009

SPRINGFIELD – Businesses on trial for asbestos exposure can defend themselves, the Illinois Supreme Court decided on Thursday, April 16.

Five of seven Justices reversed widow Sally Nolan's $2.4 million verdict against boiler maker Weil-McLain, ruling that Illinois judges misinterpreted their decisions.

Justice Charles Freeman wrote that "we did not carve out an exception for asbestos cases which relieved those plaintiffs from meeting the same burden as all other tort plaintiffs."

He demolished a precedent excluding evidence of other asbestos exposure, writing that it "deprives a defendant of a rational alternative explanation."

The Justices overruled another precedent, shriveled another and replaced the lot with a medical malpractice precedent, Leonardi v. Loyola University.

"Our ruling in Leonardi is universally applicable to all tort actions," Freeman wrote.

Jurors in Nolan's trial didn't know that 11 businesses paid $1.2 million to settle claims that they caused mesothelioma that killed Clarence Nolan.

Vermilion County Circuit Judge Craig DeArmond knew other defendants had paid Nolan, because his order of judgment offset the verdict by the amount they paid.

The result offended his sense of justice, and when Weil-McLain moved for post trial relief he turned creative.

He denied the motion reluctantly, and for 58 pages he explained his reluctance.

DeArmond wrote that "the conflict for the court in this case has been between what the court considers the law should be, and the current state of the law in asbestos litigation."

He wrote that a Third District precedent, Kochan v. Owens-Corning, "effectively removed from asbestos defendants any opportunity to point to the negligence of another as the sole proximate cause of plaintiff's injury."

He called the case undefendable.

Though he invited reversal, First District appeals judges in Springfield affirmed him.

They relied on Kochan and Third District decisions in Lipke v. Celotex and Spain v. Owens-Corning for authority that other exposure is irrelevant.

They wrote that Nolan satisfied a test of frequency, regularity and proximity from a Supreme Court decision in Thacker v. UNR Industries.

They held that when a plaintiff satisfies Thacker, a defendant is presumed to be a proximate cause of an injury.

Freeman shot back, "This Court in Thacker created no such presumption."

"The lower court's incorrect reading of Thacker conflicts not only with the clear language of that opinion, but also with our goal of adopting that test to fairly balance the interests of plaintiffs and defendants," Freeman wrote.

Thacker rejected an argument that any evidence of exposure is sufficient to send the issue of legal causation to a jury, he wrote.

Proof that relies on conjecture, speculation or guesswork is insufficient, he wrote.

Thacker provides a means to determine if a plaintiff can shift the burden of production to a defendant, he wrote.

"We reiterate, however, that the ultimate burden of proof on the element of causation remains exclusively on the plaintiff, and that burden is never shifted to the defendant," he wrote.

He declared the Lipke precedent inapposite to Nolan's case and suggested that courts have read more into it than anyone intended.

He wrote that Lipke expressed basic tort law principles that weren't novel and didn't apply solely to asbestos cases.

He wrote that the Kochan decision "loosened Lipke from its factual moorings."

He specifically overruled the portion holding evidence of other exposure irrelevant.

He wrote that the Spain decision perpetuated the erroneous interpretation of Lipke.

"Given that Spain conflicts with both Thacker and Leonardi, it is hereby overruled," Freeman wrote.

Nothing suggests Leonardi is limited to medical malpractice, he wrote, "or that there should be a special exception to these general principles of tort law for certain types of cases."

He wrote that Third District interpretations and rulings "left Illinois standing alone in excluding evidence of other asbestos exposures."

He wrote that a plaintiff bears the burden of establishing causation through competent evidence and a defendant has a right to rebut the evidence.

He wrote that a defendant has the right to establish another cause for an injury.

Justice Thomas Kilbride answered in dissent that Weil-McLain received a fair trial.

"Weil-McLain's sole proximate cause defense was not unfairly prejudiced due to the nature of the evidence that was both admitted and excluded here," he wrote.

He endorsed the exclusionary rule, arguing that Weil-McLain found ways around it.

He wrote that "the jury heard a multitude of varied references to his repeated exposure to other, more hazardous, forms of asbestos from other products."

"Evidence identifying the specific outside sources that could have been the sole proximate cause is not necessary, or even relevant, to the jury's determination of whether the evidence proved that some source other than Weil-McLain was the sole proximate cause," Kilbride wrote.

"I disagree that the error in this case requires a new trial."

"I believe the error was harmless."

Justice Robert Thomas took no part in the decision.

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