U.S. District Court Judge Takes Narrow Reading of ‘Take Home’ Mesothelioma Case That Exposed Worker’s Family

Doris Neumann sued multiple companies, including MW Custom Papers LLC, a manufacturer of friction tape containing high levels of asbestos. In her lawsuit, she claimed she developed mesothelioma caused by her son’s clothing as a gas station attendant. He used a friction tape and wound up bringing stray asbestos fibers home, causing her to suffer secondary, or “take-home,” mesothelioma.

In the lawsuit, she claimed that MW Custom Papers knew or should have known the dangers of asbestos and should have warned users and families of take-home asbestos. MW Custom Papers moved to dismiss, asserting that take-home mesothelioma was not reasonably foreseeable under the Illinois Supreme Court rule found in the decision Simpkins v. CSX Transportation, Inc., 2012 IL 110662, 965 N.E.2d 1092 (Ill. 2012) and that MW could never know who the users and family members were and thus could not possibly warn them of the dangers of asbestos.

The motion was granted by the U.S. District Court judge in Chicago: The court concluded that it could not assess whether the injury was foreseeable and remanded the case so that the plaintiff could amend the complaint. Ultimately, the Illinois Supreme Court did not undertake the four-factor analysis and did not address whether a duty could exist as a matter of public policy, as the [5th U.S. Circuit Court of Appeals] has held.

In determining whether a duty arises, we thus assess: (1) the reason of 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.

In addition to the decision written by the U.S. District Court judge, it was stated that under the federal notice standard, Neumann pleaded take-home mesothelioma was foreseeable. The judge, however, moved to two factors not considered by Simpkins:

“Having found the foreseeability factor satisfied, we turn to consider and weigh the other factors and thus focus on the two remaining policy-oriented factors: ‘the magnitude of the burden of guarding against the injury’ and ‘the consequences of placing that burden on the defendant.’ As discussed below, these factors highlight an open question in Illinois law, which we cannot answer in Neumann’s favor.”

The judge in the federal district court case stated that “the burden of guarding against injury” imposed an impossible task. MW had no physical means of communicating any warnings or instructions to Neumann.

In Illinois, moving past the Simpkins decision, the Illinois Appellate Court decisions are in conflict.  In one appellate court district, the 5th, Illinois recognizes take-home asbestos causes mesothelioma while the 4th District ruled in Estate of Holmes v. Neumo Abex, LLC, 2011 IL App (4th) 100462, that no cause of action for take-home or secondary mesothelioma exists in Illinois.

The federal judge found the two cases of no help stating that: “Illinois Appellate Courts, as well as other state courts around the country, have split on the issue . . .”

“’In the absence of guiding decisions by the state’s highest court, we consult and follow the decisions of intermediate appellate courts unless there is a convincing reason to predict the state’s highest court would disagree.’ Again, we are stymied. Two Illinois courts have addressed this question directly, in Simpkins and in Holmes, with different conclusions. Having reviewed these opinions, we cannot say that either holding informs our attempt to guess which approach would be favored by the Illinois Supreme Court.”

Concluding that the federal district court judge could not rule thatNeumann’s complaint stated a claim for secondary mesothelioma, the judge followed the 7th U.S. Circuit Court of Appeals’ rule in such situations:

“As the 7th Circuit has repeatedly instructed, [w]hen we are faced with two opposing and equally plausible interpretations of state law, we generally choose the narrower interpretation which restricts liability, rather than the more expansive interpretation which creates substantially more liability. We conclude, as a matter of law, that MW Custom Papers did not owe a duty to Neumann, in light of the magnitude of the burden of protecting her and the ramifications of imposing that burden on MW Custom Papers.”

Neumann v. Borg-Warner Morse Tech, LLC, 168 F.Supp.3d 1116 (N.D. Ill. 2016).

Kreisman Law Offices has been handling asbestos exposure cases, chemical exposure cases, product liability cases, work injury cases and wrongful death lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Calumet City, Tinley Park, Deerfield, Libertyville, Hoffman Estates, Hawthorne Woods, Skokie, Evanston, Bensenville, Bolingbrook, Aurora, St. Charles, Hinsdale, Mundelein, Melrose Park, Elmwood Park, Elmhurst and Schiller Park, Ill.

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