Segal McCambridge Legal Blog

Segal McCambridge Achieves Two Wrongful Death Defense Verdicts In One Week

Two unrelated cases, in two different states, in different areas of the law, both involving charges of wrongful death, recently ended within days of each other with the same result: the jury siding completely with the defense. In both cases, the Segal McCambridge team led its clients through to victory.

The first of the two cases was tried in Illinois. This case involved issues of professional liability in the medical malpractice area. A 76-year-old patient underwent hip revision surgery (replacement of a previously installed artificial hip) at Chicago’s Weiss Memorial Hospital. The patient passed away approximately 48 hours after the surgery was complete. His family brought suit against the Certified Registered Nurse Anesthetist (CRNA) and the hospital, on the theory that the CRNA was an apparent agent of the hospital. The plaintiffs sought $10.6M.

Trial began June 8, 2012, in the courtroom of Judge Thomas Hogan, and concluded June 20. Robert O’Malley and Kimberly Kayiwa of Segal McCambridge represented Weiss Memorial Hospital. The jury delivered a defense verdict after deliberating for less than two hours.

“It is always a difficult road to bring a matter of this complexity to verdict in Cook County,” says Mr. O’Malley. “I attribute our success to the dedication of our trial team, the clarity of our defense message and the good fortune of empaneling an attentive and thoughtful jury.”

The second case was tried in Texas. This case involved products liability issues in the death of a young man who died retrieving golf balls from a water hazard. He worked for a company that removes golf balls from water hazards and re-sells them as used equipment. To retrieve the balls, he used a mechanical breathing device, called a “hookah.” Our client, Gardner Denver, manufactured a compressor that was a component of the device (although almost certainly not an original component).

On a June day in 2009, the young man was found dead in the water. A medical examination concluded that his death was caused by an elevated level of carbon monoxide in his body.

His survivors sued, alleging that the component parts were defective and that each of the three product manufacturers, Gardner Denver and two other companies, had failed to warn. They sought nearly $13M, $6.7M of which represented punitive damages.

But there were other issues with the hookah. It had been heavily used, and parts had worn out and been replaced. As stated before, the Gardner Denver compressor was almost certainly not original. The Honda motor had been replaced shortly before the accident and had been installed improperly. The botched configuration shot exhaust into the compressor.

After a lightning-paced four-and-a-half days of trial in Dallas, the case went to the jury. In their verdict, announced June 25, they found the company’s boss, Dickie Seeders of A Plus Golf Ball Retrieval, 77% responsible and the decedent 23% responsible. No fault was assigned to any of the three manufacturers.

Our team for Gardner Denver consisted of attorneys Timothy Krippner, John LaBoon, Christina Denmark and J.R. Skrabanek, and paralegal April Mitchell.

“We are extremely pleased that the jury confirmed our view that Gardner Denver bore no responsibility for Mr. Logan’s tragic death,” says Mr. Krippner. “We wish the best for the Logan family.”

From the Madison County Record

Med mal case belonged in Missouri – not Madison County, appellate court rules

10/18/2011 By Steve Korris

MOUNT VERNON – Madison County Circuit Judge Andy Matoesian kept a medical malpractice case that belonged in Missouri, Fifth District appellate justices ruled.

On Oct. 14, they directed Matoesian to dismiss a suit Cheryl Unterreiner filed against Missouri physician David Pernikoff and his professional corporation.

They rejected Matoesian’s conclusion that a telephone call from Pernikoff’s office to Unterreiner’s home in Highland established sufficient contact with Illinois.

“Cheryl could have returned the defendants’ phone call from any number of jurisdictions, including Missouri,” Justice Stephen Spomer wrote.

“A rule of law that allowed personal jurisdiction over a physician on the basis of a single phone call would effectively ensure that no physician ever delivered instructions over the telephone, or via email, for that physician could never know with certainty where they might eventually be haled into court as a result of those instructions,” he wrote.

“The defendants have never advertised for clients in Illinois and have never owned or leased any real or personal property in Illinois,” he wrote.

“The defendants’ contact with Illinois is simply far too attenuated and fortuitous to support jurisdiction,” he wrote.

Justices James Donovan and James Wexstten agreed.

Unterreiner underwent a heart valve replacement in 2002, and for the next six years she took Warfarin as an anticoagulant.

She traveled to Missouri for appointments at Pernikoff’s office.

In 2008, an employee left a phone message that her anticoagulant levels were low.

Unterreiner returned the call, and an employee told her to keep taking Warfarin and return in a month.

Within a month, Unterreiner suffered a stroke resulting in serious injuries.

She and husband Kim Unterreiner sued two years later, and Pernikoff moved to dismiss.

Matoesian denied the motion last December, but now he must grant it.

Spomer wrote, “Before an Illinois court may exercise jurisdiction over a nonresident defendant, that court must ensure its exercise of jurisdiction comports with traditional notions of fair play and substantial justice.

“A plaintiff may not lure a nonresident defendant into a jurisdiction, and the mere unilateral action of the plaintiff in seeking and obtaining the service of the defendant cannot serve to satisfy the jurisdictional requirement of minimum contacts.”

He wrote that Unterreiner sought out Pernikoff and traveled to Missouri for treatment.

He wrote that he couldn’t equate a solitary phone call with voluntary invocation of the protections and benefits of Illinois laws.

Lisa Howe and Thaddeus Eckenrode represented Pernikoff.

Drew Baebler and Philip Denton represented the Unterrreiners.

From Point of Law.com

“A must-read landmark decision from Judge Easterbrook in Aqua Dots Product Liability Litigation. The Chinese manufacturer of the Aqua Dots toy used the wrong adhesive in the product process; when swallowed, the adhesive metabolized into gamma-Hydroxybutyric acid, i.e., GHB, the so-called date-rape drug, with predictably adverse effects for the small children who did so.

The companies involved acted responsibly when they discovered the problem, and recalled the product, offering refunds and replacements.

There are of course legitimate personal injury claims that stem from a defective product like this. But there were also class actions seeking recovery for economic loss. What economic loss when the manufacturer is offering a refund or replacement? Well, that’s a problem, isn’t it, but lawyer-driven class actions often seek to free ride off of and take credit for what the manufacturer is already doing for the sake of justifying a large attorneys’ fee: the attorneys in the similarly free-riding Mattel Lead Paint settlement asked for $12.9 million.

This will not fly in the Seventh Circuit now: “the district court should have relied on the text of Rule 23(a)(4), which says that a court may certify a class action only if ‘the representative parties will fairly and adequately protect the interests of the class.’ Plaintiffs want relief that duplicates a remedy that most buyers already have received, and that remains available to all members of the putative class. A representative who proposes that high transaction costs (notice and attorneys’ fees) be incurred at the class members’ expense to obtain a refund that already is on offer is not adequately protecting the class members’ interests.” It is good to see a court recognize that Rule 23(a)(4)’s adequacy requirement forbids class representatives from incurring socially wasteful litigation costs for the benefit of their attorneys at the expense of the class they represent. This will be an especially important principle in merger-and-acquisition strike suits.”

The Seventh Circuit decision can be found here

From Daniel Fisher at Forbes.com and its Full Disclosure blog with a hat tip to overlawyered.com on a recent post

Illinois Appeals Courts Stem Tide of Asbestos-Conspiracy Cases
An appeals court has thrown out an asbestos verdict based on an unusual theory that seems to have caught the fancy of judges in the central Illinois city of Bloomington, even if it leaves other lawyers scratching their heads in wonder. Here's the theory: Asbestos companies bear a sort of collective guilt and thus plaintiffs can sue companies they never actually had any contact with.

Jurors in Bloomington have ordered up more than $120 million in damages against companies including Honeywell and Owens-Illinois, even though those companies never sold products to the plaintiffs, or employed them in their factories. Judges allowed jurors to return these blockbuster verdicts based on circumstantial evidence of a conspiracy, such as the fact that two companies shared a director in 1934, or the defendants belonged to a group that shelved as inconclusive an animal study in the 1940s that might have indicated asbestos can cause lung cancer.

The Illinois Supreme Court and lower appellate courts, meanwhile, have struggled mightily to throw out these verdicts without disturbing the state's liberal law regarding civil conspiracy. They've focused on the evidence in each case, finding reasons to overturn jury verdicts while leaving open the possibility that somebody, somewhere will actually be able to prove that a company that never had any contact with the plaintiff can still be ordered to pay damages for nefarious activities behind the scenes.

The dance Illinois courts are doing around these cases is puzzling since tort law in most parts of the country is clear on a few essential elements. First, there must be an injury. Second, the defendant must have some duty to the plaintiff. Third, the defendant must have breached that duty. Finally, the plaintiff must show that the breach more likely than not caused the injury.

In the latest decision handed down Friday, the Fourth Appellate Division chucked out a $2.5 million jury verdict against Honeywell and Pneumo Abex on behalf of a woman who says she contracted mesothelioma, a rare chest cancer tied to asbestos exposure, from fibers that came home on the clothes of her first husband. The husband had worked at Union Rubber & Asbestos Co. in Bloomington from 1953 to 1956. But UNARCO went bust long ago, so lawyers sued Pneumo Abex and Honeywell, which in their corporate pasts both made asbestos brake shoes.

Why these two companies? The decision doesn't explain, other than both were involved in the asbestos business and belonged to the same trade group. Lawyers haven't been able to come up with any smoking-gun memos or testimony directly linking these companies to a conspiracy, let alone the plaintiffs. But under Illinois law, jurors can find companies guilty of civil conspiracy even when the outcome is something more like negligence than an intentional tort; by allowing bad tings to happen, they can be guilty. More conservative states require the conspirators to actually agree to do something.

Instead of simply declaring the asbestos conspiracy theory doesn't work, the Illinois Supreme court tightened the rules. It held  that lawyers must prove more than that companies belonged to a trade group or engaged in so-called "parallel conduct," mirror-image actions that make it look like they agreed to something. The state's high court said there must be evidence of an actual agreement — and it didn't see one in the one case it examined.

In Friday's decision, the appeals court threw out the case on the second element, finding that nobody knew in the 1950s that workers could carry home deadly asbestos fibers on their clothes. That meant there was no duty, and all the other evidence of conspiracy became moot. The court also reversed itself on an earlier ruling, in which it sent back for retrial a $5 million verdict against Honeywell but upheld most of the underlying conspiracy theory. Now, the judges said, they realize that the standard of evidence in that case should have been "clear and convincing," instead of the less stringent "more likely than not" that prevails in most civil cases. Circumstantial evidence won't cut it.

Next up before the appeals court will be a $90 million verdict a jury ordered against Honeywell and Owens-Illinois and Pneumo Abex in March. As in the other cases, the culprit was the long-bankrupt UNARCO factory. Jurors ordered the other companies to pay a retired pipefitter $60 million in punitive damages, however, sending a clear message to companies that never had any meaningful contact with the man that they nevertheless bore the guilt for his mesothelioma.

The Illinois Appellate Court for the Fourth District has overturned a $2.5 million verdict that was one of several controversial jury awards in asbestos cases filed in McLean County.

In the recent opinion, Plaintiffs claimed that Juanita Rodarmel, a Bloomington woman contracted mesothelioma after she was exposed to asbestos on the clothing of her first husband, Leslie Corry, an employee of the former Union Asbestos & Rubber Co. Corry worked at the plant from 1953 to 1956.

In their decision tossing out the 2009 verdict, the court rejected the plaintiff's argument that Pneumo Abex LLC and Honeywell International should be held accountable for Rodarmel's illness because the companies allegedly conspired with other firms to keep secret information about the hazards of asbestos.

The ruling issued in Springfield appears to have eviscerated the “conspiracy theory” used by attorneys in the Fourth District of Illinois. Specifically, the Court overruled the Burgess v. Abex Corp., 311 Ill. App. 3d 900, 903 (2000) case which had stood for the proposition that the suppression of the report counted as evidence of agreement between asbestos producer Johns-Manville and Abex predecessor American Brake and Block.

They overruled the Dukes v. Pneumo Abex Corp., 386 Ill. App. 3d 425 (2008) decision which allowed several pieces of evidence in support of the conspiracy theory.

Further, the Fourth District held that jury improperly found a duty on the part of employers, in the 1950s, to warn workers against carrying asbestos dust home on their clothes.

The Court wrote that “in 1953 through 1956, the infliction of illness merely from asbestos carried home on clothing was not reasonably foreseeable, given what was known during that period.”

Jurors had awarded $2 million in compensation, $400,000 in punitive damages against Honeywell, and $100,000 in punitive damages against Abex.

The trial court cut compensatory damages to $183,333, after subtracting amounts other companies had paid to settle Rodarmel’s claims.

Some interesting excerpts from the opinion, in terms of Plaintiff’s expert, Barry Castleman’s testimony with respect to animal studies and their casual significance:

“More to the point, perhaps, it was unclear what qualifications, if any, that Castleman had in the field of pathology and, more specifically, in cancer experimentation with mice. He apparently was not a medical doctor or a veterinarian.”

“So that leaves no one – that is, no one with relevant expertise – opining that the eight or nine tumorous mice, in an uncontrolled experiment, were scientific evidence of a causal relationship between asbestos and cancer in humans.”

With respect to Barry Castleman’s testimony on “take-home” exposures to asbestos:

“In summary, then, Castleman conceded the following three points in his testimony. First, it was not until mesothelioma was widely recognized as a disease distinctively related to asbestos that it became possible to scientifically track the risk of asbestos into the homes of workers through the occurrence of mesothelioma among family members. Lung cancer was too nonspecific for that purpose. Second, in the 1950s, mesothelioma was not yet widely recognized as an asbestos disease, that is, a disease distinctive to, or specific to, asbestos. Third, in 1955, it was still an open question whether a person could suffer harm from breathing asbestos in quantities insufficient to cause asbestosis.”

Justice Appleton expressed open contempt for the decision by the trial court for allowing evidence that Johns-Manville (not a party to the case) helped Honeywell’s predecessor, brake maker Bendix, in writing a position paper. “If this paper is evidence of a conspiracy, so is the New England Journal of Medicine.”

Further, the opinion held that membership of companies in trade associations cannot be counted as evidence of some kind of “conspiracy.” “Joining a trade organization was just as consistent with innocence as with guilt.”

The Illinois Appellate Court for the Fourth District opinion in the Rodarmel case can be found here

From the Madison County Record McLean County continues inching closer to becoming a ‘judicial hellhole’

Illinois’ reputation as a lawsuit magnet was not made overnight. It took time as hotspots such as Madison, St. Clair and Cook Counties became destination jurisdictions for personal injury lawyers looking to hit the “Lawsuit Lottery.”

Madison, St. Clair and Cook Counties have long been fixtures in the annual “Judicial Hellhole” report and for years these three counties have appeared to be unwilling to share the spotlight for being some of the worst jurisdictions in the country for legal fairness.

Unfortunately for Illinois, the usual suspects have apparently added a new member to the gang. Last December, McLean County was cited in the American Tort Reform Association’s annual Judicial Hellholes report as a jurisdiction to watch. The inclusion of McLean County in the report was intended to be a warning of what could happen should the situation in McLean County get any worse.

Sadly, the situation has indeed gotten worse.

Shortly after being cited in the report, a McLean County jury delivered an eye-opening $90 million judgment against Honeywell International Inc., Pneumo Abex, Owens-Illinois Inc. and John Crane Inc. when there was no evidence the plaintiff ever worked for these companies or was exposed to asbestos by any products made by the three companies.

In a recent asbestos case filed against Honeywell International Inc., McLean County Judge Paul Lawrence directed a verdict for the plaintiff before the defense even had a chance to say anything. A few days later, the jury awarded the plaintiff $4.3 million.

Judge Lawrence applied the conspiracy theory to the case even though neither the plaintiff nor her husband ever worked at Honeywell or were in any way ever connected to the company.

This is the equivalent of filing a lawsuit against Sears for something that happened 50 years ago at a J.C. Penney store.

In the past, Madison, St. Clair and Cook Counties have been at the center of Illinois’ growing legal climate concerns. Now McLean County seems to be descending deeper and deeper into Hellhole status. The situation is not improving, rather, it is getting worse.

It does not take long to build a reputation as a lawsuit magnet but it takes a long time to shed that reputation. Just talk to the folks in Madison County.

The last thing our state needs right now is yet another Judicial Hellhole jurisdiction. The reality is that businesses look carefully at where to locate a business and the litigation climate is a significant factor in the decision making process. It is not the only factor, obviously but it certainly is something companies consider. Once a county develops a reputation as a magnet for lawsuits, it is difficult to recruit new business and opportunities. The last thing McLean County needs is a reputation of being a plaintiffs’ paradise.

Lawmakers recently passed significant tax hikes into law and put Illinois communities at a competitive disadvantage in terms of attracting new businesses and opportunities. We simply cannot afford to add to our growing reputation as a state hostile to job growth and job creation by enshrining yet another Judicial Hellhole jurisdiction in Illinois.

McLean County, and all Illinois counties for that matter, should be working to create more jobs instead of creating a litigation climate that only serves to import lawsuits and drive jobs and opportunities away.
 

From the June 17th, 2011 Chicago Tribune: “Move over, Madison County“

Illinois is known for a few things that make it unique among all states: the tallest tower in America; Chicago-style deep-dish pizza; Abraham Lincoln.

But it also has another claim to fame: the state known for handing out multimillion dollar jackpot-justice verdicts. This distinction is reasserting itself in McLean County with frivolous “no-causation” conspiracy claims. It works like this: trial lawyers target solvent businesses in asbestos lawsuits even if they have no connection to their clients. They score big fees, settlements and damages by claiming that one or more companies conspired from the 1930s to the 1970s to suppress health and safety information concerning asbestos.
This is a setback for Illinois. The state struggled for years to shed a reputation as a plaintiff’s lawyer paradise. Its infamy was born a decade ago when Madison and St. Clair counties created a cottage industry for out-of-state class-action lawsuits that would have been rejected by almost every other court in the country.

Now, McLean County has become a hot spot for a similar abuse of justice. This threatens all companies because it demonstrates a company doesn’t have to cause any injury to be held liable — and face a bill in the tens of millions of dollars.

Plaintiffs claim they were injured when they were exposed to asbestos at the former Union Asbestos and Rubber Co. in Bloomington, Ill. UNARCO is bankrupt and is, therefore, never named as a defendant. So the plaintiffs sue other unrelated but financially viable companies — Owens-Illinois, Honeywell International and Pneumo Abex — claiming a conspiracy.

The Illinois Supreme Court has rejected the conspiracy claim theory. Supreme Courts in California and Texas and federal courts in Maryland have also ruled that you can’t sue a company for conspiracy if there is no relationship between the plaintiff and the company.

Yet the suits keep coming in McLean County. In March, the McLean County Circuit Court awarded one of the largest conspiracy claim asbestos verdicts ever — nearly $90 million — to a plaintiff whose only relationship was with the bankrupt UNARCO. He had no relationship at all with the three financially viable companies — Owens-Illinois, Honeywell and Pneumo Abex.

In April, McLean County Circuit Judge Paul Lawrence barred Honeywell from even defending itself against a plaintiff who sued the company for the alleged wrongful death of her husband. Lawrence halted the trial — before the defense could open its mouth — and directed a verdict for the plaintiff. The jury awarded $4.3 million.

Lawrence applied the conspiracy theory — even though neither the plaintiff nor her husband were ever employees, customers, visitors or in any way connected to Honeywell.

It’s akin to General Motors in 2011 being held liable for a defective part on a Ford Model T that injured someone in the 1920s ... simply because both companies make cars.

And, unfortunately, even if the verdict is overturned on appeal, the damage has already been done. The costs of litigating these cases and the real risk of a huge verdict force many defendants to settle.

Abraham Lincoln, who toiled as a young circuit lawyer in the same McLean County court, said once: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time.”

On June 22, 2011, in a 2-1 decision, the Illinois Appellate Court for the Fourth District reversed a judgment against Honeywell and Abex, jointly and severally, in the amount of $1,543,361.66 in a household, secondary exposure case. Holmes v Pneumo Abex L.L.C., No. 4-10-0462 (June 22, 2011).

The background from the opinion:

In May 2006, plaintiff filed a complaint against defendants and others for the wrongful death of his mother, Jean Holmes. The complaint alleged decedent’s husband, Donald Holmes, worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco Industries, Inc. (Unarco). During his employment, Holmes was exposed to asbestos and brought the fibers home on his clothes and person, which exposed decedent to the asbestos. Decedent was diagnosed with mesothelioma, and she died in April 2006.

Plaintiff alleged defendants, along with Unarco, Johns-Manville Corporation (Johns-Manville), Raymark Industries, Inc. (formerly Raybestos-Manhattan, Inc.) (Raybestos), Owens Corning, Owens-Illinois, and Metropolitan Life Insurance Company (MetLife), conspired to suppress information about the harmful effects of asbestos and refused to warn employees about the hazards of asbestos. Plaintiff claimed defendants’ agreements and acts done in furtherance thereof proximately caused decedent’s injury and death. Honeywell is the successor by merger to the Bendix Corporation (Bendix), which manufactured automotive brakes and brake linings. At the relevant times, brake linings, including those made by Bendix, were made with chrysotile asbestos. Bendix’s largest supplier of raw chrysotile was Johns-Manville. Abex is the successor to a variety of entities, the original being American Brake Shoe & Foundry Company. Abex made automotive brake products and brake linings with chrysotile asbestos.

In February 2009, plaintiff’s case proceeded to a jury trial. As the parties are familiar with the facts in this case, we will set forth only those facts necessary for the proper disposition of this appeal. The parties do not dispute that decedent developed peritoneal mesothelioma, which caused her death at age 93. Peritoneal mesothelioma has been associated with exposure to asbestos. It was also undisputed that decedent’s only exposure to asbestos fibers was on the work clothes of her husband, who worked at the Unarco manufacturing plant in Bloomington from 1962 to 1963. The asbestos was supplied to Unarco by Johns-Manville and Raybestos. It was undisputed that decedent and her husband were never exposed to any Bendix or Abex products.

Plaintiff presented evidence that showed multiple companies, including Johns-Manville, Raybestos, and Abex entered into a written agreement in 1936 with the Saranac Laboratory (Saranac agreement) to sponsor research on industrial dusts. The evidence showed an agreement among some of the companies to reduce or de-emphasize references to asbestosis in a 1935 asbestos industry study prepared by Dr. Anthony Lanza of MetLife; to have references to lung cancer in animals and asbestosis or cancer in humans deleted from a 1948 asbestos study prepared by Dr. Leroy Gardner and Dr. Arthur Vorwald of Saranac Laboratory and to keep the study and its underlying data from being disseminated to the public; and to prevent publication from 1935 to 1969 of any articles about the dangers of asbestos in Asbestos magazine.

Evidence showed Unarco, Johns-Manville, Raybestos, and Abex did not change their business practices concerning asbestos or attempt to warn their employees. Plaintiff also presented evidence as to the activities of Owens Corning and Owens-Illinois. Owens-Illinois received a 1948 report from Dr. Vorwald that concluded its asbestos-containing Kaylo pipe and block insulation was a potentially hazardous material and capable of producing asbestosis. In various journals, Owens-Illinois and Owens Corning sold Kaylo insulation stating it was “nonirritating” and “nontoxic.”

Plaintiff’s expert, Dr. Barry Castleman, a consultant specializing in toxic substances control, testified he had no information that Bendix was aware of communications that were taking place between Raybestos, Johns-Manville, and MetLife as to the study by Dr. Lanza. He was not aware of Bendix being involved in any effort to prevent Asbestos magazine from publishing articles about asbestos. Dr. Castleman had no knowledge that Bendix ever knew or approved of the Saranac agreement or that it had known about Dr. Gardner’s critical study. He also had no knowledge of any communication between Bendix and Owens-Illinois or Owens Corning.

Dr. Castleman testified Bendix was a member of the Friction Materials Standards Institute (FMSI), a trade organization made up of brake-lining manufacturers. Joel Charm testified Bendix and American Brake Shoe & Foundry Company had a single member of their respective board of directors in common from 1930 to 1934. Bendix and Johns-Manville also had a single member in common on their board of directors from 1959 to 1963.

William Dyson, an industrial hygienist, testified for defendants. He stated he prepared a bibliography of household exposure articles and listed a 1960 article by Dr. J.C. Wagner that spoke to mesothelioma as a result of take-home exposure to a family member.

Following closing arguments, the jury found for plaintiff and against both defendants. The jury assessed $2,632,611.66 in damages. The trial court later entered an amended judgment against defendants, jointly and severally, in the amount of $1,546,361.66. In May 2009, Honeywell and Abex filed posttrial motions, which the court denied. This appeal followed.

The Fourth District found that no relationship existed between the defendants and the decedent and thus, defendants owed no duty to decedent. The Fourth District analogized its decision in Holmes with the Second District’s decision in Nelson v. Aurora Equipment Co., 391 Ill.App.3d 1036, 1037, 909 N.E.2d 931, 933 (2d Dist.2009). The Holmes and Nelson opinions, however, are counter to the Fifth District’s opinion in Simpkins v CSX Corp., 401 Ill.App.3d 1109, 1119, 929 N.E.2d 1257, 1266 (5th Dist. 2010) which found a duty to individuals such as Mrs. Holmes. Simpkins is on appeal to the Illinois Supreme Court.

Further, the Holmes court stated that even if they were to find a relationship between the parties, there would be no duty because the danger of household exposure was not reasonably foreseeable until after decedent's husband worked at the UNARCO plant. Plaintiff’s own expert, Dr. Castleman testified that the first epidemiological study applicable to “take-home” exposures was at the earliest the Newhouse and Thompson publication in October 1964.

In dissent, Justice Knecht indicated his agreement with the Fifth District’s opinion in Simpkins. The Justice stated, "One does not require an epidemiological study to recognize disease and death from asbestos exposure dating back to the nineteenth century."

James Wylder of Wylder Corwin and Kelly represents the Holmes family and the case was tried in McLean County, located in the Fourth Appellate District.

As of June 30, 2011, the Holmes opinion can be found here

By Jenni Young

On June 28, 2011, Illinois Governor Pat Quinn signed into law House Bill 1698, which included some significant workers' compensation reforms. The legislation follows after increasing criticism from Illinois businesses due to a recently enacted corporate income tax hike. Among the reforms are limitations on wage differentials , utilization of employer PPO preferred medical provider plans, usage of American Medical Association guides to evaluate impairment, utilization of medical fee schedules, reductions of medical fee rates, utilization of electronic billing, and caps and reductions on carpal tunnel recovery. Further, the legislature codified the causation requirement, amending Section 1 of the Illinois Workers' Compensation Act to state that "to obtain compensation under this Act, an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of the employment" and created a defense for employers if an employee's intoxication is determined to be the proximate cause of the employee's injury.

Significantly, the exclusive remedy provision of the Act, which prohibits employees from filing civil actions against their employers for injuries arising out of and in the course of employment, remains unchanged.

From SMSM Attorney Misty Martin

On March 30, 2011, the Illinois Appellate Court issued a ruling upholding a jury's finding that a third-party logistics provider, CH Robinson, was responsible for a driver's negligent operation of a tractor-trailer. This case involved a serious accident: the driver of a tractor trailer failed to stop and avoid a traffic jam, ran over several vehicles, causing serious injuries to one person and the death of two others. The jury awarded plaintiffs $23,775,000. The issue on appeal concerned the liability of CH Robinson. CH Robinson is a third-party logistics provider, that is, it arranges transportation services for its clients, it does not actual provide any of the actual transportation. CH Robinson argued at trial that the driver was an independent contractor and, accordingly, CH Robinson should not be found liable. Both the trial court and appellate court disagreed. The appellate court found there were substantial facts indicating the existence of an agency relationship between the driver and CH Robinson and CH Robinson was properly held vicariously liable for the driver's negligence.

This is significant ruling in the industry and should cause concern to logistic providers and those companies that hire independent contract drivers (like shippers and manufacturers). Historically, these types of companies have been successfully in shielding themselves from liability based on the independent contractor relationship. However, in this recent case, the appellate court found the existence of an agency relationship despite contractual evidence that the parties intended the driver to be an independent contractor. Those in the third-party logistics industry, as well as shippers, manufacturers and their insurers, should be aware of this case and risk, particularly any requirements or governance over the drivers they hire to transport freight.

Sperl v. C.H. Robinson Worldwide, Inc., 2011 Ill. App. LEXIS 307 (Ill. App. 2011) can be found online here

From the Madison Record

First quarter asbestos claims in Madison County: At least 154

At least 154 new asbestos lawsuits have been filed in Madison County in the first quarter of 2011.

In a review of suits filed between Jan. 1 and March 29, 117 of the cases were mesothelioma claims. There were 30 lung cancer; four asbestosis and one each of pleural plaques, colon cancer and adrenocarcinoma claims.

The Simmons Firm of Alton by far filed the most claims – 77. Gori & Julian of Edwardsville filed 30; the Goldenberg firm of Edwardsville filed 16; Shrader & Associates of Houston filed eight; the Maune firm of South Carolina filed seven; the O’Brien firm of St. Louis filed seven; Saville & Flint of Alton filed five; Bilbrey Law Office of Glen Carbon filed two and the Lanier Law Firm of Houston filed two.

Of the 154 filed, 19 were claims made by Illinois residents; 135 claims were made by non-residents.

In the meantime, Madison County Circuit Judge Barbara Crowder is considering recommendations made by both sides of the asbestos bar regarding the allocation of trial dates.

Crowder presides over the largest asbestos docket in the country.

She heard arguments on March 25, among plaintiffs who would retain a calendar providing about 500 trial dates a year, defendants proposing 250 dates, and other defendants opposing both.

At last week’s hearing, defense attorney Robert “Barney” Shultz said there are about 2,900 mesothelioma diagnoses in the nation and about 140 in Illinois each year.

He said there were 506 mesothelioma cases filed in Madison County last year.

“It’s because there are so many trial dates available,” he said.

The entire article can be found here