• Illinois Supreme Court Reaffirms the Sole Proximate Cause Defense
  • May 19, 2009 | Authors: Craig T. Liljestrand; Paul M. Markese
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • As many defendants in products liability cases know, the decision in Lipke v. Celotex Corp., 153 Ill. App. 3d 498 (1987) can put them at a distinct disadvantage in a trial. The holding in Lipke provides that when a party is the lone remaining defendant at trial, the jury may only hear evidence as to plaintiff's exposure to that defendant’s products or equipment. Evidence of exposures to the products or equipment are irrelevant and forbidden. The consequences of this opinion have been likened to putting handcuffs on the defendant at trial. At long last, however, the Supreme Court of Illinois has put this issue to rest.

    In Nolan v. McLain, decided April 16, 2009, the Illinois Supreme Court held that a defendant in an asbestos case should not be precluded from presenting evidence of the subject decedent's other exposures to asbestos in support of its sole proximate cause defense. Needless to say, this outcome has positive implications for defendants in a wide variety of products liability cases.

    Clarence Nolan worked as a millwright, plumber and pipefitter for almost 40 years beginning in 1952. He also performed boiler installation and repair work during that period. Sally Nolan, as executrix of the estate of Clarence Nolan, sued Weil-McLain and 11 other defendants alleging that the decedent developed mesothelioma through his occupational exposure to asbestos and products which contained asbestos.

    Weil-McLain ultimately became the sole defendant left at trial. Relying on Thacker v. UNR Industries, Inc., 151 Ill. 2d 343 (1992) and Leonardi v. Loyola University of Chicago, 168 Ill.2d 83 (1995), it filed a motion in limine seeking to present evidence that the sole proximate cause of Clarence Nolan's death was his exposure to asbestos-containing products of non-party entities. Plaintiff argued to the contrary and relied upon Lipke and its line of cases to assert that the decedent’s exposures to non-parties’ asbestos products were irrelevant, would confuse the jury and were prejudicial. The trial court agreed and barred Weil-McLain from introducing evidence of other exposures.

    A verdict was ultimately rendered in favor of plaintiff. Weil-McLain filed a post-trial motion arguing that the circuit court erred in not allowing evidence of decedent's other exposures to asbestos. The trial court denied the motion "reluctantly," and Weil-McLain appealed.

    Appellate Decision
    The appellate court rejected Weil-McLain's argument supporting the introduction of evidence as to Clarence Nolan’s other exposures to asbestos. In affirming the trial court’s decision, the court held that "[o]nce a plaintiff satisfies the [frequency, regularity and proximity] Thacker test, a defendant is presumed to be a proximate cause of a decedent's asbestos injury."

    Supreme Court
    On appeal from the court of appeals, the Supreme Court of Illinois held that the lower court erred by excluding evidence of all of decedent's exposures to asbestos. In analyzing Thacker, the Supreme Court stated that "when viewed correctly, Thacker provides a means for determining whether a plaintiff in an asbestos case has presented sufficient evidence to establish cause in fact and, thereby, shift the burden of production to the defendant" (emphasis in original). The ultimate burden of proof, however, on the element of causation, remains with the plaintiff. The Supreme Court concluded that Thacker created no presumption on the issue of causation.

    Turning to Lipke, the Supreme Court recognized that it simply "stands for no more than the well-settled rules that it cites: that the concurrent negligence of others does not relieve a negligent defendant from liability." "[I]f a defendant's negligence proximately caused a plaintiff's harm, evidence that another's negligence might also have been a proximate cause is irrelevant-and therefore properly excluded-if introduced for the purpose of shifting liability to a concurrent tortfeasor." In concluding that Lipke was inapposite to Nolan, the high court reasoned that in the instant case, Weil-McLain sought to offer evidence of other exposures to contest causation through the use of the sole proximate cause defense, which was not raised in Lipke. The Court in Lipke did not suggest that a defendant should be barred "from introducing evidence of other potential causes of injury where it pursues a sole proximate cause defense."

    The Supreme Court also stated that Leonardi, a medical malpractice case, "made it clear that the exclusionary rule first fashioned in Lipke is limited to the facts presented there. The Court held that it is error to extend that principle to instances where, as in Nolan, proximate cause is disputed and the defendant pursues a sole proximate cause defense." Leonardi, the high court concluded, is applicable to all tort actions, which includes asbestos cases.

    The Supreme Court held that the circuit court "erred by relying on the appellate court's erroneous — and now overruled — decisions to prevent defendant from presenting evidence of decedent's other asbestos exposures in support of its sole proximate cause defense." "The exclusion of evidence of decedent's other exposures to asbestos eliminated evidence of alternative causes for decedent's injuries, improperly preventing defendant from supporting its sole proximate cause defense." The judgment of the appellate court and the circuit court were reversed and the matter was remanded to the trial court for a new trial.

    As a result of the Supreme Court’s holding, the state of Illinois stands alone no longer in excluding evidence of other asbestos exposures. Defendants may now show that another entity’s conduct is the sole proximate cause of the plaintiff's injury.