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.