A Bad Moon on the Rise? The Development of Liability for Secondary Exposure of Asbestos

YLS Tort Litigation Committee Donald Patrick EcklerChicago Bar Association Pretzel & Stouffer, CharteredMay 24, 2012 One South Wacker Drive Suite 2500

Chicago, IL 60606312-578-7653

Simpkins v. CSXIn Simpkins v. CSX, 2012 Ill. 110662, the Illinois

Supreme Court waded into the debate over liability for secondary asbestos exposure that has the potential to significantly increase the potential liability for defendants in asbestos cases confirming a large class of potential plaintiffs.

Indeed, if the Court were to definitively confirm that there is liability for secondary exposure to asbestos, an explosion of claims could be filed making this issue one that can potentially ripple across the landscape of toxic tort claims.

Basics of Asbestos LitigationAsbestos litigation has been taking place for

decades. Attorneys do not have to practice regularly in asbestos litigation to understand the basic premise - an individual is exposed to asbestos while working with or around a product that contains asbestos.

The product is manipulated and asbestos fibers become airborne. The asbestos fibers are ingested and, following a long latency period, the fibers cause an aggressive type of cancer known as mesothelioma.

These types of direct exposure asbestos cases are the most commonly litigated.

Basics of Asbestos LitigationThere is, however, another type of asbestos case

that is lesser known.

These cases involve secondary exposure and are commonly referred to as take home or bystander exposure cases.

A secondary exposure case is slightly different from a typical direct exposure case. The plaintiff in a secondary exposure case does not personally working with or around an asbestos containing product.

Basics of Asbestos Litigation The most common plaintiff in a secondary exposure case

is a family member washing the laborer’s clothes at home.

Asbestos fibers become attached to the clothing of the laborer who worked with and around asbestos containing products. The family member later handles the laborer’s clothes to wash them. The asbestos fibers attached to the clothing become airborne and are ingested.

Although the clothes washer did not personally work with the asbestos containing products, he or she nonetheless becomes secondarily exposed to asbestos.

Factual and Procedural History of Simpkins

In Simpkins, the plaintiff filed a complaint against various defendants based on her mother’s secondary exposure to asbestos, including her former husband’s employer. Simpkins, 2012 Ill. 110662 at ¶ 3.

The plaintiff alleged that her mother was exposed to asbestos secondarily through her mother’s interaction with her father. 

The decedent lived with her husband between 1958 and 1964 and the case focuses on this time period. The plaintiff’s complaint alleged that the defendant’s employer, among others, knew or should have known of the dangers of secondhand asbestos exposure during the time that the decedent was exposed.

Factual and Procedural History of Simpkins

The defendant employer filed a motion to dismiss pursuant to Section 2-615 of the Illinois Code of Civil Procedure arguing that because it did not have a relationship with the deceased, no duty was owed to her. 2012 Ill. 110662 at ¶ 5.

In response to the motion the plaintiff filed multiple affidavits and supporting documentation.

The trial court granted the defendant’s motion to dismiss, severed the claims from those against the other defendants, and entered an order allowing an interlocutory appeal of the order of dismissal. 2012 Ill. 110662 at ¶ 7.

Factual and Procedural History of Simpkins

The Illinois Appellate Court, Fifth District, reversed the judgment of the trial court finding that the plaintiff had sufficiently alleged that the potential injury to the plaintiff was foreseeable and that accordingly, the plaintiff had sufficiently alleged that the defendant owed a duty to the deceased. 2012 Ill. 110662 at ¶ 8.

Factual and Procedural History of Simpkins

A split Supreme Court upheld the Appellate Court’s, ruling. Speaking for the majority, Justice Garman found that the while it may be possible for a plaintiff to seek recovery for secondary exposure to asbestos, the plaintiff’s complaint had failed to sufficiently plead facts, which if proved, who give rise to the existence of such a duty. 2012 Ill. 110662 at ¶ 28.

Because the dismissal was on a motion brought under Section 2-615, the Court ordered that the plaintiff be given an opportunity to replead and then it could be determined if there could be facts pled to state a cause of action.

The Majority’s AnalysisThe Court's analysis focused on whether the

defendants owed a duty to the plaintiff and in particular whether the risk of injury was foreseeable at the time of the exposure.  2012 Ill. 110662 at ¶¶ 24-27.

The Court recognized that the concept of duty is “involved, complex, and nebulous.” 2012 Ill. 110662 at ¶ 17.

The Majority’s AnalysisThe Court started by looking at the relationship

between the parties, not whether there was or was not an employment relationship as was argued by the parties but whether the defendant had an obligation to the plaintiff. 2012 Ill. 110662 at ¶ 18.

The Court, as it has previously, looked to four factors which comprise what it called a “shorthand” for whether a relationship exists between a defendant and a plaintiff to determine if a duty exists.

The Majority’s Analysis Those factors are (1) the reasonable foreseeability of the

injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant.

The Court rejected the defendant contention that a “direct relationship” between the parties must be found, in addition to these four factors. Instead, the Court held “[a]n independent ‘direct relationship’ between parties may help to establish the foreseeability of the injury to that plaintiff (as either an individual or as a member of a class of individuals) but is not an additional requirement to establishing a duty in this context.” 2012 Ill. 110662 at ¶ 19.

The Majority’s AnalysisThe Court then turned to analyze the four

factors, beginning, and never progressing past, the first: foreseeability.

The court reasoned “[i]n a situation such as this, what is considered reasonably foreseeable depends on what information about the nature of asbestos was known at the time of plaintiff’s alleged exposure and, therefore, what information defendant could reasonably be held accountable for knowing.”  2012 Ill. 110662 at ¶ 25.

The Majority’s AnalysisThis question turned on what the defendant

could have known between the period of alleged exposure between 1958 and 1964.

The plaintiff alleged in the complaint that the defendant “knew or should have known” of the alleged risks of asbestos. The Court found this insufficient and conclusory under Illinois law.

The Majority’s AnalysisHowever, because the defendant did not raise

the insufficiency of the plaintiff’s allegations of foreseeability until the matter was on appeal, the plaintiff did not have an opportunity to plead additional facts before the trial court.

The Court ordered that on remand that the plaintiff be allowed to file an amended to complaint to test whether the plaintiff can plead sufficient facts to state a cause of action.

The Dissent Rejects the Entire Concept of Secondary Exposure

In a vigorous dissent, Justice Freeman, who was joined by Justice Burke, argued for refusing to recognize secondary asbestos liability altogether. Justice Freeman cited to courts from Michigan and New York which have so held.   2012 Ill. 110662 at ¶ 38.

Justice Freeman also stated that the danger of asbestos was not recognized until 1965. 2012 Ill. 110662 at ¶ 36.

The Dissent Rejects the Entire Concept of Secondary Exposure

Whether Justice Freeman’s opinion that knowledge of the danger of asbestos was limited to the period only after 1965 is accepted by other courts, or by a later panel of the Illinois Supreme Court, will likely determine whether secondary asbestos liability ever grows roots in Illinois. 

If the 1965 date is accepted as the date of knowledge of the danger of asbestos, then claims like those of the plaintiff in this case could eventually be dismissed, because the exposure in this case was indisputably prior to 1965.

However, this could signal that secondary exposure that occurred after 1965 could be allowed to stand.

Impact of Simpkins on Plaintiffs The Simpkins court held that foreseeability was a key

when determining whether the defendant owed the plaintiff a duty.

In determining foreseeability, the critical question turns on what a defendant actually knew regarding the nature and potential harms of asbestos during the alleged exposures.

Going forward, Simpkins can be interpreted to require plaintiffs to plead facts showing that defendants knew that asbestos inhalation caused harm at the time of the alleged exposures.

Impact of Simpkins on Plaintiffs

Plaintiffs’ will likely cite to the studies concerning asbestos health hazards in Britain in the early 1900’s. Once a defendant possesses knowledge of a harm caused by asbestos inhalation, a defendant could be liable for any subsequent exposure.

To comply with the pleading requirement set forth in Simpkins, plaintiffs will likely point to the earliest studies and publications which illustrate any harm associated to asbestos inhalation.

Impact of Simpkins on PlaintiffsIn 1924 pathologist Dr. W.E. Cooke examined the lungs of

a deceased asbestos textile worker. W.E. Cooke, Fibrosis of the Lungs Due to the Inhalation of Asbestos Dust, British Medical Journal, July 26, 1924 at 147.

Dr. Cooke published his findings in the British Medical Journal under the title “Fibrosis of the Lungs Due to the Inhalation of Asbestos Dust.” Id. He believed it was the first British case to establish someone dying from a fibrosis of the lung caused by exposure to asbestos. Id.

However, the weight of this report is lessened by the fact that the worker’s lung not only showed a fibrosis but also a tuberculosis infection. Id.

Impact of Simpkins on Plaintiffs

It is widely believed that the seminal study relating to the knowledge that asbestos causes a serious health hazard is the Merewether and Price Report of 1930.

Also in England, Dr. E.R.A. Merewether was employed as a medical inspector of factories while Mr. C.W. Price worked as an inspector of factories. E.R.A. Merewether and C.W. Price, Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry, London (1930).

Impact of Simpkins on Plaintiffs

The inquiry performed by Merewether and Price was started by the British Factory Department of the Home Office. The inquiry was based on Dr. Cooke’s report and one other documented death relating to fibrosis of the lungs and asbestos. Id. at 5-6.

The main conclusion of the Merewether report was that “inhalation of asbestos dust over a period of years results in the development of a serious type of fibrosis in the lungs.” Id. at 4.

Impact of Simpkins on PlaintiffsThere are two reasons why plaintiff will likely cite

to Mereweather to satisfy the Simpkins foreseeability requirement.

First, the ultimate conclusion is that inhalation of asbestos causes harm.

Second, there were over 360 workers considered in the study which is a much larger sample than in Cooke’s report.

Given the age of asbestos plaintiffs today, the majority of asbestos exposure occurred following Mereweather’s report.

Impact of Simpkins on Plaintiffs

In 1953, Dr. Richard Doll was hired to study the mortality data for an asbestos company.

Dr. Doll was able to demonstrate a significant presence of lung cancer in workers heavily exposed over long periods to asbestos. Richard Doll, British J. Industrial Medicine, 12, 81 (1955).

Impact of Simpkins on PlaintiffsFinally, the key study relating to mesothelioma

occurred in 1965. Dr. Irving Selikoff’s extensive work in establishing the connection between asbestos exposure and hazards, including mesothelioma, culminated into an international conference dubbed the “Biological Effects of Asbestos.” Irving Selikoff, Annals of the New York Academy of Sciences, 647-673, (December 1965).

The presentations of the conference were published in 1965 in the Annals of the New York Academy of Sciences.

Potential Responses by Defendants There are several areas where defendants can attack

studies likely to be cited by plaintiffs to the satisfy Simpkins foreseeability requirement.

The first area relates to access to information. Should American companies be responsible for tracking British health publications?

American companies working with asbestos products had limited, if any, access to the early studies in Britain. It could be difficult for plaintiffs to establish that hundreds of defendants knew of the Merewether report.

Potential Responses by DefendantsThe second area relates to timing. Even if courts

hold that defendants had knowledge of these early British studies, when are they presumed to have had knowledge?

Given how slow information was disseminated in the early 20th century compared to today, defendants cannot be presumed to have knowledge of a report at the publication date. It is not easy to establish a concrete date where defendants should have known about the Mereweather report.

Potential Responses by DefendantsFinally, the Illinois Supreme Court in Simpkins

fails to define harm.

As mentioned above, there are three most common health hazards attributable to asbestos: asbestosis, lung cancer, and mesothelioma.

The early Cooke and Mereweather studies clearly focus on fibrosis of the lungs, which we commonly refer to today as asbestosis.

Potential Responses by Defendants

Defendants could advance an argument in a lung cancer or mesothelioma case that the British studies do not satisfy the Simpkins foreseeability requirement because they focus only on asbestosis.

How could defendants be presumed to have knowledge of a harm that is different than what is contained in the study?

Potential Responses by Defendants

There is no guarantee that these ideas will be successful in contesting the sufficiency of a plaintiff’s Simpkins foreseeability requirement, but are a launching point for a discussion of how defendants can strive to push the date of foreseeability later in time to limit the total amount of exposures.