As many defendants know, a trial in Cook County, Illinois, is unfair based upon the Lipke v. Celotex Corp., 153 Ill.App.3d 498 (1987) decision. When you are the only defendant left at trial, the jury will only hear plaintiff's exposure to your products or equipment. Other exposures are irrelevant and forbidden. A well-renowned national counsel in asbestos litigation has likened it to showing up on the day of trial with hand-cuffs on. The Supreme Court of Illinois has finally put this issue to rest.

Background
Sally Nolan, as Executrix of the Estate of Clarence Nolan, brought suit against 12 defendants, including Weil-McLain, alleging that Clarence Nolan developed mesothelioma through his occupational exposure to asbestos and products that contained asbestos. Clarence Nolan worked as a millwright, plumber and pipefitter for almost 40 years beginning in 1952. He also performed boiler installation and repair work during that time.

Weil-McLain was the sole defendant left at trial. Relying on Thacker v. UNR Industries, Inc., 151 Ill.2d 343 (1992) and Leonardi v. Loyola University of Chicago, 168 Ill.2d 83 (1995), Weil-McLain filed a motion in limine seeking to present evidence that the sole proximate cause of Nolan's death was his exposure to asbestos-containing products of non-party entities. Plaintiff argued to the contrary, however, and relied upon Lipke v. Celotex Corp., 153 Ill.App.3d 498 (1987) and its line of cases to assert that Nolan's exposures to asbestos products of non-parties were irrelevant, would confuse the jury and was prejudicial. The Circuit Court agreed with plaintiff and granted her motion in limine. Weil-McLain was barred from introducing evidence of these other exposures.

At the conclusion of the trial, a verdict was awarded in favor of the plaintiff, which was reduced by previously settled defendants. Weil-McLain filed a post-trial motion arguing that the Circuit Court erred in not allowing evidence of decedent's other exposures to asbestos. This motion was denied "reluctantly" by the Circuit Court. Weil-McLain appealed.

Appellate Decision
The Appellate Court rejected Weil-McLain's argument of attempting to introduce evidence of decedent's other exposure to asbestos and held that "[o]nce a plaintiff satisfies the [frequency, regularity and proximity] Thacker test, a defendant is presumed to be a proximate cause of a decedent's asbestos injury." The Circuit Court's decision was affirmed, but the Supreme Court of Illinois allowed Weil-McLain leave to appeal.

Supreme Court
The Supreme Court of Illinois was now faced with the question of whether the lower court erred by excluding evidence of all of decedent's exposures to asbestos. The Supreme Court concluded that it did.

In analyzing Thacker, the Supreme Court stated that "when viewed correctly, Thacker provides a means for determining whether a plaintiff in an asbestos case has presented sufficient evidence to establish cause in fact and, thereby, shift the burden of production to the defendant" (emphasis in original). The ultimate burden of proof on the element of causation, however, remains with the plaintiff. The Supreme Court concluded that Thacker created no presumption on the issue of causation.

Turning to the Lipke decision, the Court recognized that it simply "stands for no more than the well-settled rules that it cites: that the concurrent negligence of others does not relieve a negligent defendant from liability."

"[I]f a defendant's negligence proximately caused a plaintiff's harm, evidence that another's negligence might also have been a proximate cause is irrelevant-and therefore properly excluded-if introduced for the purpose of shifting liability to a concurrent tortfeasor."

In concluding that Lipke was inapposite to the instant case, the Supreme Court reasoned that in this case, Weil-McLain sought to offer evidence of other exposures to contest causation through the use of the sole proximate cause defense, which was not raised in Lipke (emphasis added). Lipke does not suggest that a defendant should be barred "from introducing evidence of other potential causes of injury where it pursues a sole proximate cause defense."

The Supreme Court also stated that the case of Leonardi v. Loyola University of Chicago, 168 Ill.2d 83 (1995), a medical malpractice case, "made it clear that the exclusionary rule first fashioned in Lipke is limited to the facts presented there, and held that it is error to extend that principle to instances where, as here, proximate cause is disputed and the defendant pursues a sole proximate cause defense." Leonardi, it concluded, is applicable to all tort actions, which includes asbestos cases.

Conclusion
The Supreme Court held that the Circuit Court "erred by relying on the appellate court's erroneous-and now overruled-decisions to prevent defendant from presenting evidence of decedent's other asbestos exposures in support of its sole proximate cause defense."

"The exclusion of evidence of decedent's other exposures to asbestos eliminated evidence of alternative causes for decedent's injuries, improperly preventing defendant from supporting its sole proximate cause defense." The judgment of the Appellate Court and Circuit Court were reversed and the matter was remanded to the Circuit Court for a new trial. Justice Freeman delivered the opinion of the Court. Chief Justice Fitzgerald and Justices Garman, Karmeier and Burke concurred. Justice Kilbride dissented, while Justice Thomas took no part in the decision.

It appears as though the handcuffs are not totally off, but defendants can now use the key to take one of them off and attach that handcuff to another entity. The State of Illinois stands alone no longer in excluding evidence of other asbestos exposures. A defendant is permitted to show that the conduct of another entity is the sole proximate cause of plaintiff's injury.

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

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