Share this e-Alert:

Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort
         
 

August 2016

 

Asbestos Exposure Liability Decision May Affect Future "Take Home" Cases

 
 
             
 

For more information about this e-Alert, please contact:

 

Thomas N. Guillen

312.463.6374

Email | Bio

  

Luke J. Mangan

314.552.6869

Email | Bio

  

  

To learn more about our Toxic and Mass Tort practice, to contact one of our Toxic and Mass Tort attorneys, or for more Toxic and Mass Tort Intelligence, click here.

 

  


Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort Polsinelli - Toxic and Mass Tort View Polsinelli documents on JD Supra  

SUBSCRIBE

LinkedIn Twitter Facebook Polsinelli Podcast
   

Following recent court action, defendants up against "take-home" asbestos exposure claims may need to rethink their legal strategy.

The Northern District of Illinois recently denied a Motion for Reconsideration of a Motion to Dismiss that the court had previously granted to a defendant in a "take-home" or "secondary" asbestos lawsuit.  In Neumann v. Borg-Warner Morse TEC LLC, No. 15 C 10507, 2016 WL 3059082, (N.D. Ill. May 31, 2016), the plaintiff filed a negligence action against several defendants.  The Plaintiff's son worked as a gas station attendant in the 1970s - a position in which he allegedly handled asbestos-containing products made by defendant.  The Plaintiff contended she was exposed to asbestos through "take-home" or "secondary" exposure via washing her son's work clothing that contained asbestos dust from the products he used at work. To view the court Opinion on this case, click here.

In its Motion to Dismiss, the defendant argued that it could not be liable to plaintiff under her "take-home" exposure theory because it did not owe her a duty, as she did not directly use the products in question.  In granting the Motion to Dismiss, the Court determined that Illinois does not yet recognize a duty to family members in "take-home" asbestos cases.  The Court looked to Illinois state court decisions to properly apply Illinois law on "take-home" exposure claims, noting a split in Illinois state appellate courts on whether a duty is owed to family members and that the Illinois Supreme Court had declined to address the issue.  The Court acknowledged the Illinois Supreme Court's opinion in Simpkins v. CSX Transp., 965 N.E.2d 1092 (Ill. 2012), but concluded that this novel question has not yet been definitively answered by Illinois state courts. In considering Simpkins, the Court held: "And while Neumann finds error in our reading of Simpkins, we again decline to adopt her more expansive interpretation, particularly in the absence of clear direction from the Illinois courts … We do not construe the Simpkins remand order as an implicit endorsement of take-home asbestos negligence." Neumann at *3 (internal citation omitted).

In Simpkins, the plaintiff had alleged that she was exposed to asbestos via "take-home" exposure through the negligence of the defendant, her husband's employer.  The Illinois Supreme Court affirmed the reversal of the Circuit Court's granting of defendants motion to dismiss on procedural grounds.  However, the Illinois Supreme Court did not expressly address the substantive question of whether a legal duty exists requiring a defendant to warn of "take-home" asbestos exposure.

The Neumann Court held that because there is no clear Illinois state case law on the issue, the Court must use Seventh Circuit rules of interpretation to direct it to limit liability in this case. Id. at *7. The court stated it is the Seventh Circuit's instruction to "'choose the narrower interpretation which restricts liability, rather than [a] more expansive interpretation which creates substantially more liability.'" Id. (internal citation omitted).

The remaining defendants all argued that the "take-home" allegations against them were identical and should likewise be dismissed.  The Court agreed, granting their motions as well, stating that its previous ruling "should and does apply with equal measure against all Defendants."  Id. at *5.

Due to the limitations of the Court's analysis and a lack of clear Illinois case law on the viability of "take-home" exposure cases, this ruling may have limited precedential value in Illinois state court. However, defendants facing allegations of "take-home" exposures in Federal court under Illinois law should consider citing Neumann in moving to dismiss those claims. 

For More Information

For questions regarding this information, please contact one of the authors, a member of Polsinelli’s Toxic & Mass Tort Litigation practice or your Polsinelli attorney.

 
             

             
 

Atlanta  Boston  Chattanooga  Chicago  Dallas  Denver  Houston  Kansas City  Los Angeles  Nashville  New York
Overland Park  Phoenix  Raleigh  St. Joseph  St. Louis  San Francisco  Washington, D.C.  Wilmington
polsinelli.com

 
             
 
 

ABOUT POLSINELLI

real challenges. real answers.SM  
Polsinelli is an Am Law 100 firm with more than 800 attorneys in 19 offices, serving corporations, institutions, and entrepreneurs nationally. Ranked in the top five percent of law firms for client service*, the firm has risen more than 50 spots over the past five years in the Am Law 100 annual law firm ranking. Polsinelli attorneys provide practical legal counsel infused with business insight, and focus on health care, financial services, real estate, intellectual property, mid-market corporate, and business litigation. Polsinelli attorneys have depth of experience in 100 service areas and 70 industries. The firm can be found online at www.polsinelli.com. Polsinelli PC. In California, Polsinelli LLP.

* 2016 BTI Client Service A-Team Report

 
 
             
 

Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements.

Copyright © 2016 Polsinelli PC.

 
             
Connect with us on LinkedIn. Connection with us on Twitter. Connect with us on Facebook. Polsinelli Toxic and Mass Tort Toxic and Mass Tort