Cooney and Conway file brief warning decision to overturn $10B tobacco case could wreck asbestos litigation

By The Cook County Record | Apr 21, 2015


SPRINGFIELD- Asbestos lawyers caution that a pending decision of the Illinois Supreme Court on cigarettes could wreck the framework of asbestos litigation.

The Chicago firm of Cooney and Conway issued that warning in March, as friend of the court in its review of a $10 billion judgment against Philip Morris.

The asbestos firm seeks to preserve the current Supreme Court standard holding a defendant liable if its conduct was a substantial factor in an injury.

Philip Morris proposes a standard requiring proof that an injury would not have occurred but for the conduct of a defendant.

Changing the standard would have “wide ranging implications for tort cases throughout the state, including asbestos cases,” Bruce Pfaff, of Chicago, wrote for Cooney and Conway.

“It is well settled that a ‘but for’ standard cannot serve as an adequate measure of factual causation in all cases,” he wrote.

“The substantial factor rule was developed primarily for cases, like those involving asbestos disease, in which application of the ‘but for’ rule would allow a defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result.

“Unlike traditional tort injuries, asbestos injuries are not perceptible at the time that the tortfeasor’s products and the plaintiff make physical contact.

“The long period between exposure to asbestos and the clinical ability to diagnose the disease creates difficulties in applying tort rules to asbestos cases.

“Moreover, the typical building trade asbestos plaintiff will have been exposed to billions of asbestos fibers during his career from numerous manufacturers, a factor that compounds this difficulty.

“There is no medical or scientific way to prove exactly which fiber caused the diseases process to begin.”

Pfaff also wrote that where multiple causes of harm exist, one or all might be found to be the cause in fact if the conduct satisfies the substantial factor test.

He wrote that more than 25 years ago, the court established a test requiring a plaintiff to show frequent, regular and proximate exposure to toxic materials.

He wrote that the defendant in that case provided less than 3 percent of the asbestos at the factory where the plaintiff worked.

“The substantial factor test remains a viable method of proving causation where multiple sufficient causes exist for plaintiff’s harm,” Pfaff wrote.

“This Court should reject any attempt to narrow or eliminate its application.”

The Philip Morris case started in Madison County in 2000, when Stephen Tillery, of St. Louis, filed a class action under Illinois consumer fraud law.

Former circuit judge Nicholas Byron entered judgment for the class after a bench trial in 2003.

He ruled Philip Morris had for 30 years deceived millions of smokers into expecting health benefits from light and low tar cigarettes.

He awarded more than $7 billion in compensatory damages, and he awarded $3 billion in punitive damages to the state of Illinois.

The Supreme Court reversed Byron in 2005, finding that the Federal Trade Commission authorized light and low tar labels.

The justices did not resolve challenges Philip Morris raised against Byron’s rulings on class certification, causation, and damages.

Tillery revived the case, claiming he obtained new evidence showing the Federal Trade Commission did not authorize light and low tar labels.

Byron’s successor, Circuit Judge Dennis Ruth, ruled the new evidence would not have changed the Supreme Court’s decision.

Fifth District appellate judges reinstated Byron’s judgment last year, ruling the new evidence would have changed the Supreme Court’s decision.

Philip Morris now argues, regardless of any new evidence, the Supreme Court should reverse Byron on class certification, causation, and damages.

Justices have not set oral argument.

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