On November 22, 2013, the Supreme Court of Pennsylvania issued an order in Tooey, et al. v. AK Steel Corp. that had major implications for toxic tort litigation in the state.  Plaintiff John Tooey allegedly worked for Ferro Engineering as an industrial salesman of asbestos products from 1964 to 1982.  In 2007, Mr. Tooey developed mesothelioma; he passed away the following year.  The Tooey court considered whether the manifestation of an occupational disease outside of a 300-week period set forth by the Pennsylvania Workers’ Compensation Act removed a claim from the protection of the Act, such that the exclusivity provision of the Act did not apply.  The court concluded that claims for occupational diseases with long latency periods – over 300 weeks – do not fall within the purview of the Act and, therefore, the exclusivity provision is inapplicable.  See Tooey v. AK Steel Corp., 81 A.3d 351 (Pa. 2013).

On June 27, 2014, the Appellate Court of Illinois, First District, Fifth Division, handed down a similar decision in Folta v. Ferro Engineering.  The case, on appeal from the Circuit Court of Cook County, Illinois, considered an issue of first impression: can an employee sue his employer outside of the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Diseases Act if the employee first learns of his or her injury after the expiration of the statute of repose under those acts?  James Folta was allegedly exposed to asbestos while working at a plant owned by Ferro Engineering from 1966 to 1970.  Over four decades later, in 2011, Mr. Folta was diagnosed with peritoneal mesothelioma.  The diagnosis came well beyond the applicable 25-year statute of repose of the Illinois Workers’ Compensation Act and the three-year statute of repose for asbestos-related diseases under the Workers’ Occupational Diseases Act.  Ferro Engineering filed a motion to dismiss pursuant to the exclusivity provisions of the acts.  The trial court granted the motion to dismiss, and Plaintiff appealed.  The appellate court reversed and remanded, holding that “the scope of these exclusivity bars is not absolute” and Mr. Folta’s injuries were “not compensable under [the acts]” because his workers’ compensation claim was time-barred.  The Folta court noted that other states have adopted the same position, citing the Tooey decision and a similar decision from the Montana Supreme Court in Gidley v. W.R. Grace & Co., 717 P.2d 21 (Mont. 1986).  See Folta v. Ferro Engineering, 2014 WL 2931674 (June 27, 2014).

To adopt the words of the Folta court, these decisions demonstrate the willingness of courts “to give injured employees a remedy via the courts when their claims are time-barred under applicable workers’ compensation statutes.”  Time will tell whether these decisions are isolated examples, or whether they mark the beginning of a trend removing asbestos-related injuries from the exclusivity provisions of workers’ compensation statutes.  Toxic tort defendants should continue filing dispositive motions pursuant to the exclusivity provisions of workers’ compensation statutes in other states, but should be aware that these provisions have been weakened and may someday be found inapplicable for occupational diseases with long latency periods.