Segal McCambridge Attorneys Adam Jagadich and Anastasios Foukas Prevail on Motion to Dismiss in "Secondary" Exposure Case


March 15, 2016

Manufacturers facing “secondary” exposure asbestos claims in Illinois may now be entitled to greater protections in defending these cases. Northern District of Illinois Judge Marvin Aspen recently held that product manufacturers do not owe a duty of care to the household or family members of individuals who worked with asbestos-containing products at remote locations and then allegedly carried home asbestos fibers from those products on their clothing. With “secondary” or “take-home” exposure claims representing a steadily-growing percentage of the thousands of asbestos claims filed in Illinois and throughout the country, courts nationwide have been grappling with where to draw the line between allowing such claims to proceed and limiting the extent of the otherwise endless potential for manufacturer liability.

Segal McCambridge Shareholder Adam Jagadich and Associate Attorney Anastasios Foukas filed a Motion to Dismiss on behalf of Defendant, MW Custom Papers, in Neumann v. Borg-Warner Morse Tec LLC, N.D. Ill., Case No. 15 C 10507, arguing against Plaintiff’s "secondary" exposure claim.  In this noteworthy case, Plaintiff, who was allegedly diagnosed with mesothelioma as a result of her exposure to asbestos, claimed to have been exposed to asbestos fibers carried home on her son’s work clothing. None of Plaintiff’s claims centered on having worked directly with or around any asbestos-containing product manufactured by Defendant MW Custom Papers. 

On March 10, 2016, Judge Aspen granted Defendant’s Motion to Dismiss ruling that due to the “magnitude of the burden of protecting [plaintiff] and the ramifications of imposing that burden” on product manufacturers like MW Custom Papers, no duty exists as a matter of law.” In dismissing the “secondary” exposure claims against MW Custom Papers, Judge Aspen distinguished his ruling from the Illinois Supreme Court’s decision in Simpkins v CSX Transportation, Inc. 2012 IL 110662 (2012) making it clear that the Simpkins decision did not squarely address the issue. In Simpkins, the Illinois Supreme Court declined to rule whether a duty exists in “secondary” exposure cases and instead remanded the case to allow a more complete record to be developed. 

For support, Judge Aspen pointed to Illinois’ four-part test for determining if a duty exists and explicitly rejected Plaintiff’s suggestion that the analysis ends with the issue of foreseeability. Pointing to the split in authority on the issue between the Fourth and Fifth Districts, Judge Aspen noted that while the Fifth District previously held that such a duty exists, the Fourth District concluded to the contrary. Compare Holmes v. Pneumo Abex, L.L.C., 353 Ill. Dec. 362, 367–68, 955 N.E.2d 1173, 1178 (4th Dist. 2011) with Simpkins v. CSX Corp., 401 Ill.App. 3d 1109, 1119-20 (5th Dist. 2010). Ultimately, with no clear authority in Illinois or in other jurisdictions and relying on the Seventh Circuit’s rule that, without guidance to the contrary, the preference is to limit liability, Judge Aspen held that no duty exists in "secondary" exposure cases.

Judge Aspen’s decision is clearly a positive one for the defense and provides the necessary framework for other product manufacturers to assert in contesting the existence of a duty in “secondary” exposure cases under Illinois law.