For more than 20 years, Illinois courts have operated pursuant to a rather unique rule of law when it comes to asbestos litigation. The Illinois Appellate Court held in Lipke v. Celotex, 153 Ill.App.3d 498, 505 N.E.2d 1213 (1st Dist. 1987), that once a plaintiff produces evidence that he worked with, around or in close proximity to a defendant's product containing asbestos on a "frequent and regular basis" (the Thacker v. UNR Industries test), evidence of exposure to the products containing asbestos of other manufacturers who are not party defendants at trial is inadmissible. On January 14, 2009, Rep. David Reis (R) introduced Illinois House Bill 0053 to the 96th General Assembly. The Bill seeks to amend the Illinois Code of Civil Procedure with respect to asbestos litigation.

The Lipke v. Celotex suit, brought by an insulator suffering from squamous cell cancer of the lungs, was the first asbestos case tried to verdict in the Circuit Court of Cook County. In Lipke, the trial court excluded evidence of the plaintiff's use of and exposure to other products containing asbestos on the basis that there can be more than one proximate cause of injury and disease. The Appellate Court affirmed this ruling, reasoning that the fact plaintiff was exposed to or used a variety of products containing asbestos did not relieve the defendant of liability, and that evidence of such exposure to and use of other products was irrelevant.

The unfortunate result of Lipke is that an asbestos defendant is not allowed to introduce evidence to the jury of the plaintiff's exposure to other defendants' asbestos products when that other defendant has settled, is bankrupt or was never a party to the case. As unfair as it sounds, the reason for this rule is that Illinois law recognizes a presumption, once the Thacker test is met, that the defendant's product is a proximate cause of the plaintiff's injury. The Lipke rule, it is argued, also preserves the integrity of the causation standard and reduces potential jury confusion.

Illinois House Bill 0053 seeks to amend the Illinois Code of Civil Procedure with respect to asbestos litigation. In particular, the Bill provides that in any case in which the plaintiff makes a claim based upon exposure to asbestos, the court shall allow the parties to present evidence concerning the following issues, and the trier of fact shall determine liability and damages based on these issues, together with any other relevant issues: (1) whether the plaintiff had exposure to any asbestos manufactured by, processed by, or otherwise associated with any entity other than the defendant; (2) whether the plaintiff’s exposure to asbestos was to asbestos exclusively manufactured by, processed by or otherwise associated with the defendant; and (3) whether there is a causal relationship between the plaintiff’s alleged injuries and the asbestos manufactured by, processed by or otherwise associated with the defendant.

The bill as introduced, and if later passed into law, would become effective immediately. House Bill 0053 has been referred to the House Rules Committee. Click on "Download PDF" to view a copy of HB0053.

For further information, please contact Craig T. Liljestrand or your regular Hinshaw attorney.

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