Illinois Supreme Court Decisions


Illinois Supreme Court Declares Six-Person Juries Unconstitutional

The Illinois Supreme Court held on September 22, 2016 in Kakos v. Butler, 2016 IL 120377, that the right to trial by jury includes the right to demand a 12-member jury. The Court held PA 98-1132 which reduced civil juries to only six members, and the statute it amended, 735 ILCS 5/2-1105(b), facially unconstitutional. Because the provision regarding jury size could not be severed from the Act, the Court held the entire Act invalid. The 5-0 decision was authored by Justice Garman, with Justices Thomas and Kilbride taking no part. (The change to Illinois' jury system was proposed by the plaintiffs' bar and passed without much real debate in the waning days of former Gov. Patrick J. Quinn's time in office. It became effective June 1, 2015). Read the court's decision here:  Kakos_v_Butler.pdf (58 KB) or see our Legal Updates

ASBESTOS LITIGATION 

Illinois Supreme Court Overturns Asbestos Exception to Exclusive Remedy Defense of Illinois Employers.

The Illinois Supreme Court has reversed the recent decision of the Illinois Appellate Court 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 the Court restored the exclusive remedy defense to Illinois employers of asbestos plaintiffs. The appellate court had adopted the reasoning of the Pennsylvania courts in Tooey which allows Pennsylvania employees to sue their employers in tort actions, but the Illinois Supreme Court agreed with our position in our amicus brief filed in support of the employer-appellant Ferro that the appellate court's decision should be overturned.  A copy of the decision is available here:  Folta_ILSpCt_Decision.pdf (102 KB)

LONG TERM CARE LITIGATION

Punitive Damages Can't Be Awarded Under the Nursing Home Care Act.

In a 6-0 decision, the Illinois Supreme Court ruled on March 24, 2011 that punitive damages cannot be awarded under the Nursing Home Care Act (NHCA).

The issue in Thomas Vincent v. Alden-Park Strathmoor, Inc. , No. 110406, was whether punitive damages can be awarded in death cases under the Nursing Home Care Act.  Generally, a plaintiff's right to recover punitive damages expires upon the death of the plaintiff, but the Trial Bar was seeking to make an exception under the NHCA.  Justice Karmeier, speaking for the Court, said the General Assembly on multiple occasions revisited the Survival Act and never amended it to change the structure of the law. "We note simply that such arguments are properly directed to the General Assembly, not this court."

ASBESTOS LITIGATION 

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).  Read the decision: icon Simpkins_IL_Sp_Ct.pdf (114 KB).

For additional information on this topic, contact Ed Matushek.

The Illinois Supreme Court previously issued two substantive opinions that impact asbestos litigation in Illinois:

1) Nolan v. Weil McLain, Illinois Supreme Court Docket No. 103107, (filed April 16, 2009), which overruled the "Lipke Doctrine" and 2) Ready v. United/Goedecke Services, Inc., Docket No. 103474, (modified on denial of rehearing March 23, 2009) which held that apportionment of fault on the verdict form applies only to defendants remaining in the litigation at the time of trial.

The "Lipke Rule" Overturned in Illinois . . .

The infamous Lipke Doctrine had its origin in Lipke v. Celotex Corp., 153 Ill. App. 3d 498 (1987). Lipke was the first asbestos case tried to verdict in Cook County, Illinois. Donald Lipke was an asbestos insulator who developed lung cancer and filed suit against 27 asbestos insulation manufacturers. Lipke's discovery deposition was taken over a six-day period, during which all of the defendants were present and had an opportunity to ask questions. (Illinois law provides for separate discovery and evidence depositions, and the discovery deposition of a plaintiff is not admissible at trial under Illinois law.) Defendant Forty-Eight Insulations, Inc. chose a questionable strategy of "playing ostrich" during the discovery deposition, and since Lipke didn't volunteer that he had used Forty-Eight's products, the attorney for Forty-Eight Insulations didn't ask. All of the defendants except Forty-Eight Insulations settled with the plaintiff before trial. At trial, Lipke testified he was exposed to asbestos products manufactured by Forty-Eight Insulations, and introduced substantial evidence showing the defendant's knowledge of the hazard. The jury awarded plaintiff $629,000 in compensatory damages and $175,000 in punitive damages, and Forty-Eight filed for protection under Chapter 11 and initiated an appeal, asserting in part, that the trial court erred in excluding evidence of plaintiff's exposure to other products. The First District Appellate Court affirmed, holding that Illinois courts have long held that there can be more than one proximate cause of an injury, and "in such a situation, one guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury.

Subsequently, in 1992 the Illinois Supreme Court held that a plaintiff in an asbestos case bears the burden of producing evidence of causation, which consists of both "cause in fact" and "legal cause." Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 354 (1992). In Thacker, Illinois adopted a version of the "substantial factor" test to determine "cause in fact." The defendant's conduct is said to be a cause of an event if it was a material element and a substantial factor in bringing the event about. Id. at 354-355. Given the unique problems posed by latent asbestos injuries, the Thacker court allowed plaintiffs to prove cause in fact using the "frequency, regularity and proximity test." Id. at 359. Under the frequency, regularity and proximity test, a plaintiff must show that: (1) the injured party worked in an area where the defendant's asbestos was frequently used, and (2) the injured party did, in fact, work in close proximity so as to come in contact with a defendant's product. Id. The Thacker court did not reach the issue of legal causation.

The Lipke case was extended beyond its scope by the Illinois Appellate Court for the Fifth District, whose membership at the time was comprised solely of judges from Madison County. The Fifth District Appellate Court first misconstrued Thacker to conclude that it stood for the proposition that once a plaintiff meets the frequency, regularity and proximity test, he or she thereby established legal causation. Two appellate court cases, Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 790 (5th Dist.1993) and Spain v. Owens-Corning Fiberglass Corp., 304 Ill. App. 3d 356 (5th Dist.1999), erroneously expanded Lipke to find that once a plaintiff met the frequency, regularity and proximity test in Thacker, "a defendant was presumed to be a proximate cause of a decedent's asbestos injury." Under Lipke and its Fifth District progeny, an exclusionary rule was crafted to apply to all asbestos cases in Illinois, barring evidence of plaintiff's other exposures. For more than 15 years, the "Lipke doctrine" had skewed the facts in favor of the plaintiff and led the jury to conclude that the asbestos products of the sole defendant remaining at trial must have caused the plaintiff's asbestos-related disease in the absence of any other asbestos exposures.

In 1995, the Illinois Supreme Court held that where there is evidence of other causes of a plaintiff's injury, the defendant is always permitted to introduce that evidence so the jury can resolve whether some other cause was the sole proximate cause of the injury. Leonardi v. Loyola Univ. of Chicago, 168 Ill. 2d 83, 94 (1995). However, based on the appellate court decisions and interpretations of Lipke and its progeny, this evidentiary rule was not being applied in asbestos cases.

In Nolan, the Lipke doctrine was targeted. Clarence Nolan developed mesothelioma and sued 12 corporations, including Weil-McLain. The 11 other defendants either settled or were dismissed prior to trial, leaving Weil-McLain as the sole defendant before the jury. The defendant sought to present evidence that the sole proximate cause of Nolan's death was his exposure to asbestos-containing products of nonparty entities, particularly in light of the fact that the decedent's son testified that Nolan spent 75% of his time in his 38-year career performing pipefitting work, and removing asbestos-containing pipecovering or insulation with a saw. The Illinois Supreme Court considered two primary issues with regard to asbestos cases: (1) whether "legal causation" is presumed when a plaintiff shows "cause in fact" under the frequency, regularity and proximity test, and (2) what the proper role of a sole proximate cause defense is in asbestos cases in Illinois.

In Nolan, the Illinois Supreme Court held that the appellate court misinterpreted Thacker in its decisions in Kochan and Spain when it erroneously concluded that meeting the frequency, regularity and proximity test meant that both "cause in fact" and "legal causation" was presumed. The Nolan court opined that the lower court's incorrect reading of Thacker not only conflicts with the clear language of the opinion, but also the court's goal of balancing the interests of both plaintiffs and defendants. The supreme court made it clear that it did not carve out an exception for asbestos cases which relieved plaintiffs from meeting the same burden as all other tort plaintiffs. Plaintiffs can no longer simply argue that "so long as there is any evidence that the injured party was exposed to a defendant's asbestos-containing product, there is sufficient evidence of cause in fact to allow the issue of legal causation to go to the jury." Nolan, pg. 14. Thus, when correctly viewed, Thacker provides no presumption on the issue of legal causation for plaintiffs.

Moreover, the supreme court stated that the exclusionary rule in Lipke is limited to the facts presented in the Lipke case, where proximate cause was not disputed and the defendants did not pursue a proximate cause defense. Nolan, pg. 21. The court held that not only is it error to preclude defendants from pointing to some other cause when bringing a sole proximate cause defense, but it is also wrong to presume they are liable just because a plaintiff was exposed to their products.

Nolan will have a significant impact on asbestos litigation by allowing evidence of alternative exposure to be admitted at trial while presenting a sole proximate cause defense. However, it is important to view Nolan in relation to other aspects of Illinois law. Illinois still employs a modified joint and several liability statute that would find all defendants determined to be at fault, jointly and severally liable for the plaintiff's past and future medical expenses. In addition, if a defendant is found to be 25% or more liable for the resulting injury, it will have joint and several liability for both economic and non-economic damages. Judgment defendants are provided with a set-off of settlement monies received by the successful plaintiff from other defendants, as well as bankrupt entities, but trial judges in Illinois have almost universally ruled that such information is not disclosed until after verdict.

. . . But Settled Defendants Not Allowed on Illinois Verdict Forms.

The Illinois Supreme Court recently construed section 2-1117 of the Illinois Rules of Civil Procedure, 735 ILCS, 5/2-1117, which allows for apportionment of fault under certain circumstances, to preclude the inclusion of settling defendants on the verdict form. Thus, apportionment of fault on the verdict form applies only to defendants remaining in the litigation at the time of trial.

In Ready v. United/Goedecke Services, Inc., Docket No. 103474, March 23, 2009, the Illinois Supreme Court issued a modified opinion on rehearing, addressing whether or not settled defendants are allowed on Illinois verdict forms. Over a dissent, the opinion resolved a conflict among different appellate panels and held that section 2-1117 of the Code of Civil Procedure (providing for allocation of fault among tortfeasors) does not apply to tortfeasors who have settled before judgment. Writing for a plurality, Justice Freeman construed the statutory language "defendants sued by the plaintiff" to be ambiguous, and disallowed the inclusion of settling defendants on the verdict form submitted to the jury. The result in Ready seems somewhat contrary to the Nolan decision (also authored by Justice Freeman), because as the dissent stated, the result reached in Ready was contrary to the goals of the legislature in striking a balance between fully compensating injured parties and fair imposition of liability upon tortfeasors.

In summary, Illinois defendants who have the necessary supporting facts to assert a sole proximate cause defense can now introduce evidence of other exposures, but those nonparty entities will not be allowed on the verdict form for an assessment of comparative fault. It continues to remain an "all or nothing" verdict if you find yourself defending the sole remaining defendant at trial in Illinois.

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