For many years the decision in Lipke v Celotex Corp(1) has put Illinois asbestos defendants at a strategic disadvantage. In practice, the Lipke decision limited the evidence admissible at trial to only that evidence regarding the plaintiff's exposure to parties' products. A defendant was not allowed to demonstrate the plaintiff's exposure to other non-parties' products, even those of settling defendants, as a possible alternate cause of the plaintiff's injury. This rule effectively hamstrung defendants by diminishing their ability to present an adequate defence at trial.
However, the Illinois Supreme Court recently relaxed that standard, holding in Nolan v Weil-McLain(2) that when pursuing a 'sole proximate cause' defence, a defendant may present evidence of the plaintiff's exposure to a non-party's products. Nolan involved asbestos exposure and injury claims and was originally brought against 12 different manufacturers. Specifically, the complaint alleged that Mr Nolan developed mesothelioma as a result of exposure to the defendants' various asbestos-containing products over a 38-year period. Several years of litigation ensued, during which 11 of the original defendants settled or were dismissed from the case. By January 2004 Weil-McLain was the only remaining defendant and the sole remaining allegation was that Nolan was "exposed to asbestos when he installed, repaired or removed boilers manufactured by the company".
Before the trial Weil-McLain filed a motion in limine seeking "to present evidence that the sole proximate cause of decedent's death was his exposure to asbestos-containing products" manufactured by non-parties. The plaintiff countered by filing a motion seeking to exclude this evidence of non-parties' products by arguing that under Lipke, once it is established that a plaintiff was exposed to asbestos-containing products manufactured by a defendant, the plaintiff's exposure to other asbestos-containing products manufactured by non-parties is irrelevant. The circuit court granted the plaintiff's motion, holding that under Illinois law, evidence of a plaintiff's exposure to a non-party's products is inadmissible regardless of the defence being argued by the defendant.
At trial Weil-McLain argued that any asbestos-containing product used in its boilers was composed of chrysotile asbestos fibres. This type of asbestos fibre is, at a minimum, the least carcinogenic type of asbestos and arguably does not cause mesothelioma. Further, an expert for Weil-McLain testified that the plaintiff's exposure to its products was insignificant and "did not create a risk of asbestos-related disease". Despite this evidence, the jury awarded in favour of the plaintiff.
Weil-McLain filed a post-trial motion arguing that it should have been allowed to present evidence of the plaintiff's exposure to non-parties' products. Weil-McLain maintained that on the evidence presented at trial, its products could not have caused the plaintiff's injury. Instead, non-parties' products were the sole proximate cause of the plaintiff's injury and by excluding evidence regarding these other products, the trial court prevented Weil-McLain from maintaining the sole proximate cause defence. The trial court "reluctantly" denied this motion and noted that "the conflict for the court in this case has been between what the court considers the law should be, and the current state of the law in asbestos litigation" (emphasis in original). The decision was affirmed by the Illinois Appellate Court and Weil-McLain subsequently appealed to the Illinois Supreme Court.
After reviewing the facts, the Illinois Supreme Court distinguished the holding in Lipke and found that Weil-McLain should have been allowed to present evidence of the plaintiff's exposure to non-parties' asbestos-containing products. The court held that Lipke does not stand for the proposition that evidence of a plaintiff's exposure to non-parties' products is inadmissible per se. Instead, Lipke simply stands for the proposition that:
"[i]f a defendant's negligence proximately caused a plaintiff's harm, evidence that another's negligence might also have been a proximate cause is irrelevant – and therefore properly excluded – if introduced for the purpose of shifting liability to a concurrent tortfeasor."
In other words, Lipke is simply a reaffirmation of the basic tort principle that in a situation where a person is injured and one party was negligent, that negligent party may not avoid responsibility "merely because another person is guilty of negligence contributing to the same injury".
In Nolan Weil-McLain did not argue that its products and non-parties' products proximately caused the plaintiff's injuries. Instead, Weil-McLain argued that its products did not cause or contribute to the plaintiff's injuries, and that the non-parties' products were the sole proximate cause of the plaintiff's injuries. The court noted that in a civil action the plaintiff carries the burden of proving that a particular defendant caused his or her injuries. In asbestos cases this burden does not shift to the defendant merely by showing that the plaintiff was exposed to asbestos-containing products manufactured by a defendant. Instead, the plaintiff must still show that this exposure caused any alleged injury, and the defendant maintains the right to rebut any evidence "tending to show that [its] acts are negligent" or that its conduct caused an injury. In denying Weil-McLain the opportunity to present evidence regarding the plaintiff's exposure to non-parties' products, the trial court improperly prevented Weil-McLain from supporting its sole proximate cause defence and, in essence, shifted the burden to Weil-McLain to disprove causation.
It is still too early to tell what effect the Nolan decision will have on Illinois tort litigation. Nolan almost certainly does not give defendants a green light to present evidence of exposures to a non-party's products in all circumstances. Nevertheless, Nolan has removed a major obstacle to defendants presenting a sole proximate cause defence by opening the door to highly relevant evidence of exposure to other asbestos products.
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