On June 29, 2018, a divided panel of First District Appellate Court issued an opinion providing valuable guidance to defense practitioners on the scope of the sole proximate cause defense in Illinois tort litigation, holding that the sole proximate cause defense and jury instruction is available even where the defendant argues more than one nonparty was the sole proximate cause of a plaintiff’s injury. See Rene Douglas, et al. v. Arlington Park Racecourse, LLC, et al., 2018 IL App (1st) 162962, available here (PDF opens in a new window).
Douglas involved a professional jockey, Rene Douglas, who sought compensation for paralysis resulting from a fall he suffered during a horserace at Arlington Park racecourse in 2009. Douglas and his wife sued the racetrack (Arlington), its owner (Churchill Downs), and both the manufacturer and distributor of the track’s synthetic surface. Plaintiffs settled with all parties except Arlington and Churchill Downs prior to trial.
Plaintiffs’ theory at trial was that Mr. Douglas’ injury was caused by the defendants’ negligent maintenance of the track, rather than any inherent defect in the track itself. Denying they were negligent, the defendants identified two nonparty actors as the sole proximate cause of Douglas’ injury: (1) another jockey racing that day who had clipped Douglas’ horse, causing him to fall, and (2) the track manufacturer, who had failed to apprise defendants on proper maintenance of the track surface.
The jury was instructed on sole proximate cause and returned a verdict for the defendants. In a posttrial motion, the Douglases argued the jury should not have received the sole proximate cause instruction because the defendants claimed the negligence of the other jockey and the negligence of the track manufacturer were both the sole proximate cause of Douglas’ injury. The trial court agreed there could not be two “sole” proximate causes of Douglas’ injury and granted a new trial.
Relying on Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009), the First District reversed the decision of the trial court and confirmed that defendants may avail themselves of the sole proximate cause defense and jury instruction even where they point the blame at multiple nonparty tortfeasors. The court reasoned that so long as the defendant’s contribution to the plaintiff’s injury is 0%, it is immaterial whether 100% of the blame falls on Non-Party A, Non-Party B, or both. Thus, the determinative factor with respect to the availability of this defense is not how many parties are to blame, but only that the defendant is not one of them.
Of particular import to asbestos defense practitioners is the court’s observation that defendants may argue that the actions of more than one party actor, collectively, was the sole proximate cause of an injury. In order to pursue this defense at trial, an asbestos defendant must present evidence that it was not a cause of the plaintiff’s injury – whether that be misidentification, state-of-the-art, no duty to warn or insufficient dose, among other defenses – and then may present evidence of the plaintiff’s cumulative exposures to nonparty asbestos products as the “sole proximate cause” of the alleged injury.
The plaintiffs’ bar has made several attempts to limit the application of the sole proximate cause defense since it was first recognized as applicable to asbestos cases in Nolan, including seeking to require that defendants: (1) plead and prove sole proximate cause as an affirmative defense; (2) concede medical causation; and (3) present expert testimony identifying another entity as the sole proximate cause (each of which were rejected by the Fourth District Appellate Court in Smith v. Illinois Central Railroad, 2015 IL App (4th) 140703). Since the decision in Smith, plaintiffs have instead emphasized that defendants may only identify a single entity as the sole proximate cause, but that supposed limitation has now been rendered moot, at least in the First District, by the court’s reasoning in Douglas.
Despite the string of recent decisions rejecting attempts to limit the scope of the sole proximate cause defense in asbestos cases, Justice Gordon’s lengthy dissent in Douglas provides a framework for the plaintiffs’ bar to pursue a conflicting ruling in Illinois’ other appellate districts. The defense bar must anticipate these arguments in preparation for an inevitable battle as to the scope of the sole proximate cause defense in cases in the Fifth District Court of Appeals, in order to avert a return to uncertainty that would only benefit the plaintiffs’ bar.
For further information concerning this defense, contact Mike Martinez, Partner, Matushek Nilles LLC.