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Illinois Supreme Court strikes long-time asbestos evidence ruling

By Amelia Flood | Apr 17, 2009

Charles Freeman

SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court has delivered a blow to a long-standing asbestos evidence rule that had been a defendant's bane.

In a decision handed down Thursday morning, the court reversed the 1987 so-called Lipke rule barring defendants in asbestos cases from introducing evidence of the plaintiff's other exposures. Illinois is the only state in the country to have had a rule like Lipke.

"As the instant cause presents a factually different situation, Lipke is inappropriate," Justice Charles Freeman wrote, delivering the majority opinion ruling for the defendant in the 2004 case Nolan v. Weil-McLain.

The vote was five to one, with Justice Thomas Kilbride dissenting.

"In our view, Lipke stands for no more than the well-settled rules that it cites: that the concurrent negligence of others does not relieve a negligent defendant from liability," Freeman wrote. "Lipke simply determines that evidence of the plaintiff's other exposures was not relevant to the specific defense raised, i.e., that the plaintiff did not have an asbestos-related disease, and that he had no exposure whatsoever to the defendant's asbestos products. In the matter at bar, however, the defendant wishes to offer evidence of the decedent's other exposures for different purposes."

Ed Murnane, chairman of the American Tort Reform Association, applauded the court's decision.

"By striking down the arbitrary provisions of Lipke -- the ruling that made it impossible for Illinois judges to grant a fair trial to defendants -- the Supreme Court is improving the legal environment in Illinois and, finally, allowing defendants to actually present their side of the case at trial," Murnane said.

Murnane, also the president of the Illinois Civil Justice League, said he feels that the justices have rejected the "wholesale nature of condemning hundreds of defendants," with the Nolan ruling.

"Today, the court has embraced the idea that defendants dragged usually into the Madison County courthouse in Edwardsville, many named thousands of times over the past decade for products that provided very minor or little exposure to plaintiffs, actually deserve a fair day in court with rules that aren't predisposed against them," he said.

Weil-McLain, an Indiana boiler maker, had argued that the trial court erred in applying Lipke in the suit brought by Sally L. Nolan on behalf of her deceased husband.

A jury originally awarded Nolan over $2.3 million in damages and the verdict had been upheld by the appellate court. The case will be returned to the circuit court for a new trial.

At the time, even the original trial judge, Vermilion Circuit Court Judge Craig DeArmond, expressed doubts about Lipke. DeArmond has said that he did not feel the law and science were "in sync."

The length of time Lipke stood may have been one of its weaknesses.

Corporate defense attorney Mark Behrens of Washington D.C., said while the rule made sense in 1987, before much was known of asbestos types and the related diseases, new scientific findings have muddied the waters.

Behrens said he felt that peripheral and "low-dose" defendants would stand to benefit the most from the rule's reversal.

In Behrens' view, the Lipke rule placed pressure on defendants to settle because they had no way to prove the asbestos in their products did not cause a plaintiff's illness.

"Nobody wants to be the last man standing at trial," Behrens said. "There's really no way to say, 'It wasn't my fault.'"

With the Supreme Court's decision, that may no longer be the case.

After Thursday's ruling, Behrens said he was impressed by the court's decision and its force. Justices Thomas Fitzgerald, Anne Burke, Lloyd Karmeier, and Rita Garman concurred with Freeman. Justice Thomas Kilbride dissented while Justice Robert Thomas took no part in the matter.

Although Kilbride dissented, he did not disagree with the other justices about the issue with Lipke. Kilbride argued in his dissent that the error was simply not severe enough to warrant a new trial.

"I think the court needs to be applauded here for correcting a fundamental wrong in the Illinois civil justice system," Behrens said.

The case that gave the rule its name was brought by Cook County plaintiff, Donald Lipke. His case established the rule as a legal precedent and it was later expanded on in cases such as Kochran v. Owens Corning Fiberglass.

In a 2003 Madison County case, asbestos defendant Union Carbide tried unsuccessfully to avoid Lipke's constraints in a suit filed by plaintiff Luke Lindau. The case was eventually settled for $4 million.

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