Secondhand asbestos suit sent back to Madison County

Ann Maher Mar. 26, 2012, 1:38pm


SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court has remanded a secondhand asbestos exposure case to Madison County to decide whether CSX Transportation had a duty of care to a railroad worker's wife who suffered from mesothelioma.

In a 4-2 split decision where conservative justices sided with the injured plaintiff and liberal justices sided with the accused business, the high court upheld the Fifth District which had reversed former Madison County Circuit Judge Daniel Stack's decision to dismiss Annette Simpkins' lawsuit, for different reasons involving duty.

Justice Rita Garman, for the majority, wrote that the court cannot assess the existence of a duty without further facts.

"Because foreseeability is such an integral factor to the existence of duty and because the weight to be accorded to that foreseeability (as well as to the other factors) depends on the particular circumstances of the case, without more detailed pleadings we cannot determine whether, if all well-pled facts are taken as true, a duty of care ran from defendant to plaintiff in this case," Garman wrote.

"Defendant has argued that plaintiff's complaint is insufficient because it relies on the 'conclusory allegation' that defendant 'knew or should have known' of the dangers of secondhand asbestos exposure.

"Defendant is correct. Plaintiff has failed to allege facts specific enough to analyze whether, if those facts were proven true, defendant would have been able to reasonably foresee plaintiff's injury. However, defendant has made this argument for the first time in its briefs to this court."

Dissenting Justices Charles Freeman and Anne Burke, who normally side with injury victims, wrote that remand was not appropriate in this case. They wrote that on the question of reasonable foreseeability, the plaintiff established that her father and husband worked at places where they were exposed to asbestos.

"It is difficult to understand what more facts need be alleged here, particularly because it is generally accepted that the first medical studies of bystander exposure were not published until 1965," Freeman wrote. "Based on this, courts have concluded that foreseeability could not be established as a matter of law."

"...(T)here is nothing that plaintiff could allege with respect to her father's employment (from 1931 until 1954) or even her former husband's employment from 1951 until 1964 or 1965 that would assist the court further in assessing the 'foreseeability of the harm' prong to the duty question. In short, remanding this case for further opportunity to amend would accomplish little to aid in answering the question whether defendant owed plaintiff any duty at all."

CSX Transportation had sought to reverse the Fifth District which held that the railroad should have warned the late Annette Simpkins about hazards her late husband Ronald Simpkins brought home.

Ronald Simpkins worked for B&O Railroad from 1958 to 1964.

He and Annette divorced in 1965.

In 2007, she sued CSX and 72 other companies in Madison County.

She blamed CSX for "take home" exposure, as successor to B&O.

CSX moved to dismiss, denying it owed any duty to warn families of employees.

Annette Simpkins died three months after suing, and Stack substituted daughter Cynthia as plaintiff.

Attorney John Simmons of Alton leads Simpkins's legal team.

CSX argued that only appellate courts or legislatures can create new causes of action.

Kurt Reitz of Thompson and Coburn in Belleville is lead counsel for CSX.

Stack dismissed the case and said, "It sounds like a great argument for the Supreme Court."

Fifth District judges in Mount Vernon reversed Stack in 2010, finding B&O should have foreseen a risk to Annette while Ronald worked for the railroad.

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