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Better late than never: Illinois Supreme Court considering Lipke rule

Many lower courts in Illinois use a unique evidentiary rule stemming from a decision in Lipke v. Celotex Corp., 153 Ill. App. 3d 498, 505 N.E.2d 1213 (1987), which held that exposure to other asbestos products manufactured by non-parties is inadmissible in asbestos litigation. (See also Oct. 1, 2004.) Thus, a plaintiff could sue 100 defendants claiming they manufactured the asbestos products that caused his injuries, settle with 99 of them, and then, at trial, not only claim that it was the sole non-settling defendant's asbestos product that caused his injuries, but preclude any evidence of any other exposure from reaching the jury. This not only distorted the causation inquiry but was a judicial nullification of state law on limitations on joint and several liability, and effectively forced hundreds of defendants to pay billions of dollars of extortion money. (The ones who dared fight, such as U.S. Steel in the Whittington case, quickly learned the wisdom of yielding.)

Finally, a defendant has appealed a Lipke ruling up the chain in the case of Nolan v. Weil-McLain, and the Illinois Supreme Court is considering the case. The amicus brief of parties supporting civil justice is online at NAM's website.

The recent reasonableness of Madison County courts to begin enforcing forum non conveniens rules mean that an end to Lipke will not have the effect it would have had when southern Illinois was much more of a magnet jurisdiction for asbestos litigation, but the Illinois Supreme Court's likely reconciliation of outlier Illinois lower court tort law with that in the rest of the Western world will still be an improvement.

Though the Illinois Supreme Court is a court that respects the rule of law much more than it used to, ending Lipke is not a guarantee. For example, in a 2006 case, Langenhorst v. Norfolk S. Ry., the Court by a 4-3 vote endorsed the Illinois Trial Lawyers Association position that it was acceptable for the estate of a Clinton County resident killed in Clinton County by an out-of-state defendant bring suit in St. Clair County, because the defendant railroad also had train tracks there. That St. Clair County is Madison County's sister judicial hellhole surely had nothing to do with the forum-shopping decision. (Ironically, Langenhorst may have died because the local hospital did not have a neurologist on staff capable of attending to his injuries, though the opinion does not indicate if the delay in airlifting him to St. Louis was in itself fatal. Of course, neither Langenhorst nor Norfolk Southern is allowed to make claims against Illinois trial lawyers for their role in the absence of adequate medical care in rural Southern Illinois.)



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.