Defendants and potential future defendants in asbestos exposure cases are celebrating the recent Illinois Supreme Court decision in Nolan v. Weil-McLain, Docket No. 103137 (Apr. 16, 2009). At issue before the Court was the application of the so-called “Lipke rule,” which arose out of the Illinois appellate court decision in Lipke v. Celotex Corp., 153 Ill. App. 3d 498 (1st Dist. 1987). With Nolan, the Supreme Court has clarifi ed Lipke and taken a signifi cant step toward leveling the playing fi eld for defendants in asbestos exposure cases in Illinois.
In Nolan, the Supreme Court determined that the Lipke rule has been misinterpreted and improperly expanded by Illinois appellate courts in cases like Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781 (5th Dist. 1990), and Spain v. Owens-Corning Fiberglass Corp., 304 Ill. App. 3d 356 (4th Dist. 1999), to prevent a nonsettling defendant from introducing evidence at trial that a plaintiff was exposed to the asbestoscontaining products of defendants who had previously settled, were insolvent, or were otherwise dismissed from the case prior to trial.
The central issue in the case was whether the trial court erroneously excluded evidence of the decedent’s exposure to asbestos from sources other than the defendant. In discussing Lipke, the Supreme Court noted that, when read correctly, “Lipke simply holds that if 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.” Where a defendant wishes to offer evidence of a plaintiff’s other exposures “to contest causation through the use of the sole proximate cause defense,” the Lipke exclusionary rule is inapplicable. To hold otherwise, the Court reasoned, would improperly remove from the jury the determination of proximate cause and deprive a defendant of its right to introduce evidence contesting proximate cause. Accordingly, the Court expressly overruled the portion of Kochan which holds that evidence relating to other exposure is irrelevant and overruled Spain in its entirety.
Indeed, the Supreme Court noted that the appellate court’s erroneous interpretation of Lipke, as evidenced by its rulings in Kochan and Spain, “left Illinois standing alone in excluding evidence of other asbestos exposures,” and confl icted with well-settled principles of tort law that the plaintiff bears the burden of proof on causation and that a defendant has the right to establish “that the conduct of another causative factor is the sole proximate cause of the injury.” Ultimately, the Court found that the trial court and the appellate court had erroneously excluded evidence of the decedent’s exposure to asbestos from other sources and held that such error warranted a new trial.
The practical impact of the Lipke rule prior to the recent ruling in Nolan was to shield from jurors key facts relating to proximate causation. In most cases, the jury would be unaware that the plaintiff was employed for years in other high-exposure workplaces or environments, and instead be led to believe that the plaintiff’s only exposure to asbestos came from the products manufactured by the defendant at trial. With the Nolan decision, Illinois now joins all other states in permitting juries to consider evidence that the defendant’s product was not the proximate cause of plaintiffs’ injuries because the harm was actually caused by another defendant or defendants’ asbestos-containing products.
Although it is too early to tell how the Nolan decision will impact plaintiffs’ attorneys’ approach to litigating and resolving asbestos exposure claims, the logical result should be for plaintiffs’ attorneys to focus their energies on those defendants whose products were a substantial source of asbestos exposure to the plaintiff rather than casting the net of defendants as wide as possible in the hopes of extracting settlements from defendants fearful of the previous exclusionary reach of the Lipke rule.