On May 17, 2019, Illinois adopted legislation eliminating the state’s 25-year statute of repose under the Illinois Workers’ Compensation Act for latent diseases. The legislation overturned the prominent Supreme Court decision in Folta v. Ferro Engineering which established clear precedent that an employee’s exclusive remedy lies under either the Illinois Workers’ Compensation or Occupational Diseases Act. Recently, in Patton v. A.W. Chesterton, defendant McNulty Brothers Company (McNulty) attempted to challenge the constitutionality of the 2019 legislation when it moved to dismiss Mr. Patton’s lawsuit arguing his case was barred by the Illinois Workers’ Compensation Act. Mr. Patton allegedly worked as a carpenter at McNulty from 1969 through 1973. Mr. Patton alleged that he regularly worked with asbestos-containing ceiling tiles and around asbestos-containing joint compound while he was employed by McNulty. Mr. Patton was diagnosed with mesothelioma in September of 2019, four months after the amendment of the Illinois Workers’ Compensation Act. Mr. Patton subsequently filed his complaint in the Third Judicial Circuit of Madison County, Illinois on October 15, 2019. Continue Reading Latent Injury Exception to Illinois Workers’ Compensation Legislation Challenged

The first two remote asbestos jury trials showcase the unique challenges of trying cases remotely. Many Americans have become accustomed to working from home and the technology that comes with it. Most courts though are still hesitant to proceed with remote asbestos jury trials, which is likely for the best. If, however, remote asbestos jury trials become more prevalent, then courts and litigants must learn from the challenges presented in these early cases.

Continue Reading Remote Asbestos Jury Trials Face Challenges

The statute of limitations on asbestos claims was recently reevaluated by the Minnesota Supreme Court. In Palmer v. Walker Jamal Company, the court reinforces that the clock begins when the plaintiff learns they have an asbestos-related disease, rather than when they identify a specific product as a potential cause. Continue Reading Statute of Limitations on Asbestos Claims: MN Supreme Court Reinforces

In June, the New Jersey Supreme Court affirmed a 2018 Appellate Division ruling holding that manufacturers and distributors can be held strictly liable for damages caused by third party replacement parts containing asbestos.

Whelan v. Armstrong International, Inc.

Arthur Whelan was a career tradesman, spending over 40 years working as a commercial plumber and auto-mechanic. Whelan worked on steam traps, installed and maintained boilers, and also replaced brake drums, and steam valves. During the course of that work, he often replaced asbestos-containing components on products with replacement parts from third parties, such as rope gaskets. Or, he was exposed to replaceable asbestos-containing parts, such as cleaning the firebox of a boiler. When working on a boiler, Whelan was not sure if he was dealing with original asbestos products produced by the manufacturer of the boiler, or if the insulation or gasket had been replaced by a third-party product.

Whelan could not identify with specificity the manufacturer of the products he was exposed to. Because of this, the trial court dismissed his complaint. Whelan appealed. The Appellate Division overturned the trial court in 2018. This allowed the case to move forward under a new theory of liability. Specifically, the Appellate Division determined not only that defendants had a duty to warn plaintiffs about the dangers of asbestos-containing components even if they did not manufacture component parts, but also that defendants can be held strictly liable for the failure to do so, provided a plaintiff suffered sufficient exposure to the replacement components to contribute to his or her disease. See Whelan v. Armstrong Int’l, Inc.

NJ Ruling

The New Jersey Supreme Court’s decision to affirm the Appellate Division ruling that manufacturers can be liable for third party replacement parts, was based on a lack of distinction. Distinction “between the original asbestos-containing components and the asbestos-containing replacement components necessary for the continued operation of defendants’ integrated products…[and] defendants who manufacture or distribute products that, by their design, require the replacement of asbestos-containing components with other asbestos-containing components during the ordinary life of the product have a duty to give adequate warnings to the ultimate user”. The ruling further erodes the “bare metal” defense. The theory holds that a manufacturer who produces the “bare metal” of a product, but not the insulation or packing, is not liable for damages caused by asbestos in component parts which the manufacturer did not produce.

Post Whelan

Prior to Whelan, manufacturers were insulated from liability for injuries caused by exposure to third party component parts. Post-Whelan, manufacturers and distributors may be liable if a plaintiff can prove:

  1. the manufacturers or distributors incorporated asbestos-containing components in their original products
  2. the asbestos-containing components were integral to the product and necessary for it to function
  3. routine maintenance of the product required replacing the original asbestos-containing components with similar asbestos-containing components
  4. the exposure to the asbestos-containing components or replacement components was a substantial factor in causing or exacerbating the plaintiff’s disease

It is the fourth element that departs from prior law. A New Jersey Superior Court panel previously held in Hughes v. A.W. Chesterton Co. that manufacturers had a duty to warn users of dangers of replacement parts, but still required a showing of medical causation from the product manufacturer. Put differently, while a plaintiff may show that the manufacturer breached a duty owed to plaintiff by selling an asbestos-containing product without an adequate warning, the plaintiff still must show that exposure to that defendant’s asbestos-containing product was a substantial contributing factor in causing the disease. Post-Whelan, a plaintiff no longer needs to show sufficient exposure to that defendant’s asbestos-containing product; exposure to replacement or component parts for the manufacturer’s asbestos-containing product is sufficient.

The Whelan decision will likely not have an immediate impact on asbestos cases in New Jersey. New Jersey courts have been following the Appellate Division analysis since it was published in 2018. However, with the New Jersey Supreme Court’s stamp of approval, this new take on duty to warn and medical causation substantially lowers the burden for plaintiffs to establish cases against asbestos manufacturers and distributors.

Personal jurisdiction over a foreign corporation was asserted by The Minnesota Court of Appeals in a recent asbestos case. The court found that the company’s former asbestos-tile factory in the state provided sufficient minimum contacts for specific personal jurisdiction. Continue Reading Personal Jurisdiction Over Foreign Corporation Asserted By Minnesota Court of Appeals

A pending amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure obligates parties to “meet and confer” regarding subject matters for examination. Adopted and submitted to Congress by the U.S. Supreme Court in April, this good faith conferral serves to clarify matters for examination and facilitates collaborative efforts. If Congress does not reject, modify, or defer the amendment by December 1, it will become effective immediately.

Continue Reading Pending Amendment to Rule 30(b)(6) Includes Meet and Confer Obligation

Proximate cause jury instruction was further clarified by a Washington appellate court when the court reversed the asbestos defense verdict in Clevenger v. John Crane, Inc. In the case, plaintiff Era Clevenger alleged that her deceased husband’s forty-year history of occupational exposure to asbestos (in the Navy, as a city water department mechanic, and as a pipefitter) resulted in his death. Continue Reading Toxic Tort Monitor: Proximate Cause Jury Instruction Further Clarified by Washington Appellate Court

Mallet, legal code and scales of justice. Law concept, studio shotsIn July, a Delaware Superior Court judge ordered affidavits of a deceased plaintiff admitted under the residual exception to hearsay, finding that the affidavits were sufficiently trustworthy for purposes of admissibility under D.R.E. 807.

Continue Reading Toxic Tort Monitor: Affidavits of Deceased Plaintiff Admitted Under Residual Exception to Hearsay

Remote court proceedings will continue in Cook County due to the COVID-19 pandemic. In July, Judge James Flannery of the Law Division of the Cook County Circuit Court signed General Administrative Order 20-6, providing guidance on the re-opening of Cook County courts and the extension of remote court proceedings. To safeguard the health of jurors, court employees and the public, all Law Division operations will resume via remote access. Continue Reading Remote Court Proceedings Will Continue in Cook County

In May, the Illinois Supreme Court significantly revised its rules related to remote proceedings – including court appearances, video conferences, and civil trials. These changes aim to improve the administration of justice by increasing efficiency and decreasing costs, especially during the COVID-19 pandemic. These changes became effective immediately. Continue Reading Toxic Tort Monitor: Illinois Overhauls Rules Related to Remote Proceedings