Ill. court overturns $2.6M take-home asbestos verdict

John O'Brien Jul. 19, 2011, 7:00pm


SPRINGFIELD, Ill. (Legal Newsline) - An Illinois appeals court has shot down a theory that held companies liable for a woman's asbestos-related death that was caused by fibers brought home on the clothes of her husband.

In doing so, the Fourth District of the Appellate Court of Illinois overturned a $2.6 million McLean County verdict in favor of the estate of Jean Holmes. Her husband Donald had worked at an asbestos plant from 1962-63, and she died of mesothelioma in 2006 at age 93.

The court ruled last month that the defendants in the case were entitled to a judgment notwithstanding the jury verdict because no relationship existed between them and Jean Holmes. The decision is also in conflict with an opinion from the state's Fifth District that the defendants say relied on prior decisions from out-of-state jurisdictions.

Justice John Turner added, though, that his court's ruling is in line with a Second District decision.

"In a recent premises-liability case here in Illinois, the Second District considered whether the defendant company owed a duty to a person who did not have contact with the premises but was allegedly injured by asbestos fibers that were carried home on contaminated clothing," Turner wrote.

"The Second District found no duty existed because no relationship was established as the decedent was never on the defendant's premises.

"Even if we were to find a relationship existed between the parties as the Fifth District found... we would find no duty existed because of the lack of foreseeability in this case."

To show that it was foreseeable that Holmes could be injured by asbestos fibers on her husband's clothes, the plaintiff would have to show that it was foreseeable when he worked at the Unarco plant. An expert for the polaintiff, however, said the first study showing an association between disease and take-home asbestos was published in 1964.

Justice James Knecht dissented and filed an opinion, siding with the Fifth Circuit's decision.

"(I)t was foreseeable in 1962 to any thinking person that asbestos dust and fibers on a worker's clothing and body would be carried home," Knecht wrote. "The worker's wife might well embrace her husband, or pat his back, and then wash his work clothes.

"That would expose the wife to asbestos fibers and the risk of an asbestos-related disease. One does not require an epidemiological study to recognize disease and death from asbestos exposure dating back to the nineteenth century."

Knecht wrote that acknowledging this is "not a step toward unlimited liability" on the part of asbestos defendants.

"This does not involve a mail carrier, or a neighbor, or a friend at a local tavern who claims exposure from sitting next to a worker on a bar stool," he wrote. "This was the worker's wife who greeted him at the door, cooked his meals and washed the very clothes that brought poison into their home."

A few weeks later, the Delaware Supreme Court also ruled against the take-home asbestos theory. Its analysis relied on the difference between misfeasance and nonfeasance as the plaintiff attempted to amend her complaint.

"Although Price recasts her amended complaint in an effort to allege misfeasance, the amendment is predicated on exactly the same underlying facts earlier claimed to be nonfeasance," Chief Justice Myron Steele wrote.

"Dupont's failures to prevent Mr. Price from taking asbestos fibers home or to warn the Prices about the dangers of asbestos do not rise to the level of affirmative misconduct required to allege a claim of misfeasance. No amount of semantics can turn nonfeasance into misfeasance or vice versa."

With an allegation of nonfeasance, Patricia Price was required to prove that she had a "special relationship" with DuPont. She did not allege any such relationship in her original complaint or proposed amended complaint, the court ruled.

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