News & Resources

Matushek Nilles LLC Wins Summary Judgment For Its Premises Defendant in Madison County, Illinois 

On October 3, 2017, Judge Stephen Stobbs entered summary judgment in favor of defendant U. S. Steel in a case of first impression involving take-home exposure of a deceased spouse of a Local 17 insulator who was the employee of an independent contractor who provided insulation and installation services on the defendant's South Works premises in Chicago in 1981. After discussing the issue of duty, the court entered summary judgment to the premises defendant at the outset of trial, finding that the plaintiff failed to meet the proximate cause standard of "frequency, proximity, and regularity" of the exposure as required by the Illinois Supreme Court in Thacker.   A copy of the court's ruling is available here: Order_Granting_SJ_to_USS_-_Taylor_10-3-17.pdf (119 KB).

U.S. Supreme Court Rejects State Court's "Sliding Scale" Jurisdiction Over Claims By Out-of-State Plaintiffs Against Out-of-State Defendants

The U.S. Supreme Court has firmly rejected a California State Court's attempt to use a "sliding scale" analysis to find specific jurisdiction over the claims of out-of-state litigants against out-of-state defendants, finding that in order for a court to exercise specific jurisdiction over a claim, there must be an "affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State."  See Bristol-Myers Squibb Co. v. Superior Court of California, No. 16-466, decided June 19, 2017.  This decision should dissuade local courts from creating attenuated connections to create jurisdiction when the underlying tort didn't occur in the forum state, in violation of a defendant's right to due process.  Read the decision here: Bristol-Myers_Squibb_case.pdf (151 KB).

Missouri Supreme Court Applies Daimler to Find No Jurisdiction Over Out-of-State Defendant 

The Supreme Court of Missouri recently issued a decision that may stem the increased flow of out-of-state toxic tort cases being filed in St. Louis City Court.  State Ex Rel. Norfolk Southern Railway Company v. The Honorable Colleen Dolan, issued February 28, 2017, upheld the dismissal of a railroad defendant on a lack of personal jurisdiction, finding that specific jurisdiction wasn't present because the tort occurred outside Missouri, and that the defendant wasn't subject to general jurisdiction under the U.S. Supreme Court's opinion in Daimler. Read the decision here:  Norfolk_Southern_Rwy_MO.pdf (71 KB).

Illinois Supreme Court Declares Six-Person Juries Unconstitutional 

 The Act slipped through the Illinois legislature by the plaintiffs' bar that reduced civil juries to six members has been declared unconstitutional.  See the details and full opinion in Illinois Supreme Court Decisions and Legal Updates.

Post-Folta attempt by plaintiff to subject Illinois employers to asbestos liability rejected by Morgan County Court.

In a victory for the asbestos defense bar, Randy Smith and Mike Martinez of Matushek Nilles LLC secured summary judgment for Brand Insulations, Inc. in the case of Rex Hill (Morgan County, Illinois; Case No. 13 L 21). Randy and Mike convinced Judge Christopher R. Reif to reject a novel attempt by the plaintiff to circumvent and nullify the effect of Folta v. Ferro Engineering by pursuing claims of secondary exposure between coworkers.

In this case of first impression, the plaintiff, Rex Hill, worked as a union insulator employed by Brand Insulations for several years in the late 1960s and early 1970s. Plaintiff conceded there was no viable claim for direct exposure against his employer Brand because of the Supreme Court's Folta decision, but sought to pursue an alternative claim against Brand for secondary exposure through contact with his father, Don Hill, who also worked as an insulator for Brand.

The alleged secondary exposure occurred during the time period that both Mr. Hill and his father were working together for Brand. Nonetheless, plaintiff argued his secondary exposure claim was not barred by the exclusive remedy provision because the secondary exposures occurred away from the jobsite, such as while sharing a vehicle together over the course of several months and during frequent visits to his father's home on weekends. Plaintiff also presented the expert testimony of Dr. Arthur Frank, who opined that Mr. Hill would have been secondarily exposed to Brand's asbestos through the process of "re-entrainment" any time he visited his father's home for several decades after they last worked together for Brand.

Although the alleged inhalation of Brand's asbestos occurred away from the jobsite, Brand's counsel succeeded in convincing Judge Reif that the alleged secondary exposure "arose out of" and occurred "in the course of" Mr. Hill's employment with Brand because the alleged injury-causing agent originated in Mr. Hill's employment with Brand, and his alleged injury was the result of a risk connected with, or incidental to his employment with Brand. Brand also argued that anything short of outright rejection of plaintiff's secondary exposure theory would nullify the intent of the Illinois Supreme Court in Folta that rejected an exception to the exclusive remedy provision for asbestos-related injuries.

Under Mr. Hill's theory, the plaintiff in Folta would have been able to avoid summary judgment against Ferro Engineering by arguing that he was secondarily exposed to Ferro's asbestos through myriad potential out-of-work interactions with fellow Ferro employees; including commuting to and from work with one another, visiting a co-worker's home or getting a drink together after work. Since every asbestos-exposed worker could come up with some type of out-of-work interaction with coworkers to allege secondary exposure, we argued that recognizing such a cause of action would essentially overrule Folta and subject Illinois employers to virtually limitless liability. In addition to finding in favor of Brand on this matter of first impression, Judge Reif also agreed with Brand that, under the facts shown, Brand owed Mr. Hill no common law duty of care with respect to his secondary exposure claim.

For further information, contact Randy Smith or Mike Martinez

Indiana Supreme Court Finds IPLA Statute of Repose Unconstitutional as Applied to Asbestos Claims.

A new decision may herald a flood of asbestos claims in the Hoosier State. The Indiana Supreme Court declared the Indiana Product Liability Act statute of repose unconstitutional as applied to asbestos claims, essentially overruling the court's prior decision in AlliedSignal v. Ott, 785 N.E.2d 1068 (Ind. 2003). 

In a dissenting opinion, Justice Massa expressed particular outrage that this case "began with an unusual act of defiance in the trial court, when the judge (shortly before retiring) refused to apply our clear and unmistakable precedent and grant summary judgment to the defendants." Noting that the court's decision in Ott "could not be any clearer, the trial court was required to apply it accordingly, and refused," Justice Massa lamented, "After today, what is to keep another trial judge from deciding he prefers this dissent?"

For further discussion, and a copy of the decision, please go to Legal Updates.

Illinois Supreme Court Restores Exclusive Remedy Defense to Illinois Employers in Asbestos Cases

The Illinois Supreme Court has reversed the recent decision of the Illinois Appellate Court, First District, which had created unlimited tort liability for Illinois employers of asbestos plaintiffs. In Folta v. Ferro Engineering, 2015 IL 118070, released November 4, 2015, the Court held that it was the responsibility of the State Legislature, not the courts, to modify the language of the Illinois Workers' Compensation Act, and restored the exclusive remedy defense to Illinois employers of asbestos plaintiffs. Ed Matushek had joined in an amicus brief filed in the Supreme Court on behalf of three of our employer-clients and we are pleased to report that their cooperation contributed to our success in overturning a very dangerous decision by the appellate court that had adopted the reasoning of the Pennsylvania courts in Tooey.  A copy of the decision is available here:  Folta_ILSpCt_Decision.pdf (102 KB).

Illinois Defense Ruling on Lack of Jurisdiction

The U.S. District Court for the Northern District of Illinois on November 4, 2015 granted our motion to dismiss defendant Blain Supply, Inc. for lack of personal jurisdiction. This is a significant victory not only for our client, but for the entire defense bar. We argued that the court lacked general jurisdiction under Daimler AG v. Bauman because Blain Supply was a Wisconsin corporation with its principal place of business in Wisconsin. In response to our motion, the plaintiffs had argued that Blain Supply consented to jurisdiction because it was registered to do business in Illinois and had an Illinois registered agent for service of process, and therefore could not avail itself of our due process argument. We replied that such an analysis was irrelevant post-Daimler and Judge Kocoras agreed with our position and ruled that the fact that a non-resident corporation that is merely registered to do business in Illinois and has a registered agent here does not subject that corporation to general jurisdiction in Illinois. Read the court's decision here. Surita_v._Blain_Supply.pdf (73 KB)

Appellate Court Finds No Duty to Warn For Products of Others and Conspiracy in Mesothelioma Case.

The Illinois Appellate Court for the Fourth District affirmed the trial court's judgment for defendants notwithstanding a jury's multi-million dollar verdict in Gillenwater v. Honeywell et al. In addressing the plaintiff's improper conspiracy claim, the court stated the defendants had no duty to warn for the products of others.  For more information, see our discussion in Legal Updates.

Law Imposes Strict Timetable for Payment of Settlements  in Illinois Tort Actions 

Governor Quinn signed Senate Bill 1912 (Public Act 98-0548) into law on August 26, 2013.  The law (codified at 735 ILCS 5/2-2301) applies to all personal injury, property damage, wrongful death or other tort actions involving a claim for money damages, and requires that a settling defendant pay all sums due to the plaintiff within 30 days of the plaintiff's tender of a release, which the defendant must tender to the plaintiff within 14 days of written confirmation of the settlement. If a settling defendant does not make full payment to the plaintiff within 30 days of the plaintiff's tender of the release, then after a hearing, judgment shall be entered against the defendant for the amount set forth in the executed release, plus any costs incurred in obtaining the judgment and interest at the rate specified under Section 2-1303 of the Illinois Code (currently 9.0%). This may prove especially problematic to a defendant if Medicare liens remain unsatisfied.

Will County Judge Enters Summary Judgment in Favor of Chemical Pipe Manufacturer

 On May 1, 2012, Judge Powers agreed with our position that the plaintiff failed to meet the requirements of the Thacker test enunciated by the Illinois Supreme Court, and entered summary judgment in favor of our client, a manufacturer of asbestos-containing pipe.  The plaintiff, represented by Waters & Kraus, contended that his decedent, a chemical plant equipment operator in Channahon, Illinois, was exposed to asbestos fibers from a maintenance worker who sawed and grinded the chemical pipe five feet away on only one occasion.  The court agreed with us that this was not a substantial factor in causing the decedent's mesothelioma, and did not meet the "frequency and regularity" needed to show exposure in this case. For further information, contact Ed Matushek

The Illinois Supreme Court Side-Steps Issue of Duty in Take-Home Asbestos Exposures

The Illinois Supreme Court issued its opinion on March 22, 2012 in the Simpkins case involving take-home exposure to asbestos.  Simpkins v. CSX Transportation, 2012 IL 110662. The majority affirmed the Fifth District Appellate Court's reversal of the Madison County trial court's dismissal with prejudice, but on different grounds - it held that insufficient facts were alleged in the complaint to state a duty and remanded to allow the plaintiff to re-plead.  In essence, the Court side-stepped the fundamental issue of whether a duty to warn a secondarily exposed plaintiff exists in Illinois.  Our office obtained an earlier conflicting decision in the Second District Appellate Court in the Nelson case that no such duty exists.  That conflict still remains, even after today's Supreme Court decision, as noted in the dissent filed by Justice Freeman (who surprisingly would have found that no such duty exists).  For additional information on this recent decision, go to our link on Illinois Supreme Court Decisions.

Supreme Court rejects lawsuits over generic drug warning labels

The U.S. Supreme Court ruled on June 23, 2011 that generic drug companies cannot be sued under state law over allegations that they failed to provide adequate label warnings about potential side effects. By a 5-4 vote, the justices ruled in favor of Israel's Teva Pharmaceutical Industries Ltd., Mylan Inc.'s UDL Laboratories and Iceland-based Actavis Inc. by overturning U.S. appeals court rulings that allowed such lawsuits.
The companies argued that federal law barred such lawsuits because the drug had been approved by the U.S. Food and Drug Administration. Federal law requires generic drugs to have the same labels as their brand name equivalents. Justice Clarence Thomas and the court's majority agreed, and said federal drug regulations applicable to generic drug manufacturers directly conflicted with and thus pre-empted state lawsuits.

 

For more resources on legal developments, go to our links on Supreme Court Decisions and Legal Updates.