Illinois Supreme Court Clarifies Proximate Cause Standard

By Terry Hackett

Kerns, Frost & Pearlman, LLC

In a recent 5-1 decision, the Illinois Supreme Court confirmed the well known principal of tort law that a plaintiff in a tort action bears the exclusive burden of proof to establish the element of causation through competent evidence, and the defendant has the right to rebut such evidence and to also establish that the conduct of another causative factor is the sole proximate cause of the injury. Nolan v. Weil-McLain, 233 Ill. 2d 416, 910 N.E.2d 549 (2009) (reh’g denied June 11, 2009.) While such a holding is nothing more than black letter law, it was necessitated by a series of Appellate Court decisions that altered basic causation principles in favor of plaintiffs in asbestos cases. In making this holding, the Court specifically overruled the so called “asbestos exclusion rule” as stated in Spain v. Owens Corning Fiberglass Corp., 304 Ill. App. 3d 356, 710 N.E.2d 528 (4th Dist. 1999).

In Nolan, a boiler repairman, Clarence Nolan, his wife, and his Estate after his death (“Plaintiffs”) sued Weil-McLain and 11 other Defendants alleging that exposure to the asbestos-containing products caused him to develop fatal mesothelioma. All other 11 Defendants settled or were dismissed before trial, leaving Weil-McLain as the sole defendant at trial. One of Weil-McLain’s defense theories at trial was that Mr. Nolan’s exposure to the asbestos-containing products of some of the dismissed Defendants who were not at trial was the sole proximate cause of his mesothelioma and death. To support that defense, Defendant wanted to introduce evidence of Mr. Nolan’s significant exposure to other asbestos-containing products. Plaintiffs filed a Motion in Limine to bar all evidence of his exposure to other asbestos-containing products as irrelevant under Lipke v. Celotex Corp., 153 Ill. App. 3d, 498, 505 N.E.2d, 1213 (1^st Dist. 1987); Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 610 N.E.2d 683 (1993); and Spain v. Owens-Corning Fiberglass Corp., 304 Ill. App. 3d 356, 710 N.E.2d 528 (1999).

The trial court granted Plaintiffs’ Motion in Limine and barred Defendant from introducing evidence of Mr. Nolan’s other asbestos exposures. At the conclusion of the trial, the jury found Weil-McLain responsible for Mr. Nolan’s mesothelioma and death and awarded Plaintiffs $2,368,000 in damages. The award was reduced to $1,145,500 because of a $1,222,500 set-off for amounts received from the other settling Defendants. The Appellate Court affirmed the verdict, but the Supreme Court reversed and remanded for a new trial. In its opinion, the Supreme Court articulated and clarified several basic concepts of tort law that appear to have been muddled by various Appellate Court opinions.

First, the Supreme Court reiterated that in any tort action, whether involving asbestos or not, the plaintiff exclusively bears the burden of proof to establish through competent evidence the element of causation. Nolan, 233 Ill. 2d at 441. It also clarified that its previous decision in Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 355, 603 N.E.2d 449 (1992), did not alter this principle.

In Thacker, the Court provided a rather detailed discussion of the law of causation. It explained that to establish causation, a plaintiff must establish both “cause in fact” and “legal cause.” Thacker, 151 Ill. 2d at 354. The Court went on to explain that generally there are two tests to establish cause in fact: the traditional “but for” test – defendant’s conduct is not a cause of an event if the event would have occurred without it; and the “substantial factor” test – defendant’s conduct is a cause of an event if it was a material element and a substantial factor in bringing the event about. Id. at 354-355. The Thacker Court recognized that asbestos injury cases present unique problems for plaintiffs in proving substantial factor causation and, therefore, adopted the “frequency, regularity and proximity” test for proving “cause in fact” using the substantial factor test. Id. at 359. Under this test, an asbestos plaintiff can establish cause in fact through the substantial factor prong by showing that the injured worker “was exposed to the defendant’s asbestos through proof that (1) he regularly worked in an area where the defendant’s asbestos containing product was frequently used and (2) the injured worker did, in fact, work sufficiently close to this area so as to come into contact with the defendant’s product.” Id.

The trial court and the Appellate Court in Nolan, however, erroneously interpreted the Supreme Court’s decision in Thacker as reducing the plaintiff’s burden of proof in asbestos cases. The Appellate Court in Nolan held that “[o]nce a plaintiff satisfies the Thacker test, a defendant is presumed to be a proximate cause of a decedent’s asbestos injury.” Nolan v. Weil-McLain, 365 Ill. App. 3d 963, 968 (4^th Dist. 2006). The Supreme Court in Nolan reversed the Appellate Court and specifically rejected any notion that it created such a “presumption” in Thacker. Rather, it made two definitive statements on the standards for proving causation: (1) the ultimate burden of proof on the element of causation remains exclusively on the plaintiff, even in asbestos cases; and (2) that burden is never shifted to the defendant. Nolan, 233 Ill. 2d at 435. It concluded that portion of the opinion by stating, “[f]or the sake of clarity, we reaffirm that Thacker creates no presumption on the issue of causation.” Id.

The second significant holding in Nolan was the Supreme Court’s ruling that the trial court committed reversible error by excluding evidence of Mr. Nolan’s other asbestos exposures. The Court once again provided a detailed discussion of Illinois jurisprudence relating to the admissibility of evidence of causation by other tortfeasors. The Nolan Court stated the basic tort law principle that, “the concurrent negligence of others does not relieve a negligent defendant from liability” but nullified the rule originating from Appellate court opinions that exclude evidence of other exposures in asbestos cases. Id. at 435-45. The exclusionary rule originated in part from the Appellate Court opinion in Lipke v. Celotex Corp. In that case, the Appellate Court upheld the trial court’s exclusion of evidence that the plaintiff in that case was exposed to other asbestos products as irrelevant. Lipke, 153 Ill. App. 3d at 509. The Lipke holding was limited to the facts of that case, based upon the factual issues and procedural posture of that case. Subsequent Illinois Appellate Court opinions, such as the opinion in Spain, however, expanded the Lipke holding to create an absolute exclusionary rule for asbestos cases, which prohibits defendants from presenting any evidence of plaintiff’s exposure to other asbestos-containing products. The Supreme Court in Nolan specifically rejected the existence of such a rule in Illinois, and overruled Spain. The Court explained that Lipke simply stands for the well settled rule that, “if a defendant’s negligence proximately caused a plaintiff’s harm, evidence that another’s negligence also might have been a proximate cause is irrelevant – and therefore properly excluded – if introduced for the purpose of shifting liability to a concurrent tortfeasor.” Nolan, 233 Ill. 2d at 437-8.

In Nolan, however, the Defendant wanted to introduce evidence of Mr. Nolan’s exposure to other asbestos products to establish that those exposures were the sole proximate cause of Mr. Nolan’s injuries, not just as a concurrent cause. The Supreme Court determined the evidence of these exposures was improperly excluded, reiterating that a defendant has the right to rebut plaintiffs’ causation evidence and to also establish that “the conduct of a third person, or some other causative factor is the sole proximate cause of the injury.” Id. at 563, quoting Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101 (1995). Prior to the Court’s recent clarification of Illinois law in Nolan, Illinois stood alone in excluding evidence of other asbestos exposures. The Court has now brought Illinois tort law on this point back to the mainstream and has leveled the playing field for defendants advancing a causation defense in an asbestos case.