Second hand asbestos exposure case set for oral arguments; Expanded liability on the line in Simpkins v. CSX

By Steve Korris | Sep 8, 2011



SPRINGFIELD – Cynthia Simpkins pleads she'll lack a remedy for her late mother's injuries if the Illinois Supreme Court rejects her claim of second hand asbestos exposure against CSX Transportation, but CSX found she settled 13 other claims in the same suit.

CSX reported the settlements to the Justices in June, in its appeal of a decision from Fifth District appellate judges in Mount Vernon.

Three Fifth District judges ruled that CSX predecessor Baltimore & Ohio owed Annette Simpkins a duty to protect her from fibers her husband brought home from work on his clothing.

CSX lawyers appealed and told the Justices that Simpkins dismissed 13 defendants with prejudice, "presumably after reaching monetary settlements with each."

"Whatever the outcome of this appeal, plaintiff might also obtain additional compensation from the 14 other defendants who remain in the case, including Simpkins's own employer, General Electric," they wrote.

The Justices plan to hear oral arguments on Sept. 20.

They have not previously decided whether Illinois courts may hear second hand claims.

John Simmons of East Alton, leader of Simpkins's legal team, argues that the Justices could limit second hand claims to family members.

CSX doubts that the Justices could draw that line.

Its lawyers wrote that workers who fed other workers in a plant or drove them in buses at the end of their shifts could prove frequent sustained conduct.

They wrote that there was no limit on the scope of the duty Simpkins asked the Justices to recognize.

"With respect to second hand asbestos exposure, all non-employees are similarly situated; none has a direct relationship to the employer," they wrote.

"However laudable, the desire to compensate individuals is not sufficient justification for the retroactive imposition of a duty absent a direct relationship between
the parties."

Andrew Tauber, of Mayer Brown in Washington, signed the brief.

Michelle Odorizi, of the same firm's Chicago office, worked on the brief. So did Kurt Reitz, of Thompson Coburn in Belleville.

Annette Simpkins sued 72 defendants in 2007, in Madison County.

She alleged that from 1958 to 1964, she inhaled asbestos fibers that Ronald Simpkins brought home from his job with B & O in Granite City.

They divorced in 1965.

Annette died after suing, and her daughter carried on the case.

CSX moved to dismiss, denying it owed any duty to warn families of employees.

Circuit Judge Daniel Stack granted the motion and said, "It sounds like a great argument for the Supreme Court."

At the Fifth District, Chief Justice Melissa Chapman and Justices James Donovan and James Wexstten reversed Stack.

Chapman wrote that the question wasn't whether the employer foresaw the risk but whether it should have foreseen the risk.

She limited the decision to families but added, "Should a proper case arise, we can consider whether the duty extends to others who regularly come into contact with employees who are exposed to asbestos containing products."

CSX petitioned for Supreme Court review, predicting massive liability to an unlimited universe of plaintiffs.

CSX pleaded it owed no duty to Annette because they had no relationship.

Simmons and Timothy Eaton of Chicago responded in May, comparing asbestos defendants to drivers who run over pedestrians and researchers who release anthrax.

"Plaintiff does not allege that users of hazardous substances should be required to police their employees' activity away from the workplace, but only take reasonable precautions to prevent such substances from escaping in the first place," they wrote.

They wrote that Annette was exposed to a risk the railroad created and failed to control.

"It was not merely likely, but inevitable that Annette would inhale the railroad's asbestos that contaminated her home," they wrote.

Ted Gianaris, John Barnerd and Amy Garrett, all of the Simmons firm, worked on the brief, as did John Cooney and Patricia Spratt of Chicago.

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