A state appeals panel has overruled a Cook County judge who had refused to transfer to Winnebago County an asbestos exposure case involving a plaintiff who had worked at industrial facilities in Winnebago, and couldn't say for sure he had even been exposed to asbestos in Cook County at all.

The Illinois First District Appellate Court overturned the ruling of Cook County Circuit Judge Claire E. McWilliams in an unpublished Rule 23 order issued June 13. 

Justice Mary Anne Mason wrote the opinion; Justices P. Scott Neville Jr. and Daniel J. Pierce concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.

The justices, who gave consideration to court congestion in both counties, ultimately found it would “be manifestly unfair to burden Cook County residents with jury duty and trial expenses associated with litigating this matter.”

The underlying complaint involves plaintiffs Irvin and Marlene Rohl, who sued several defendants in Cook County alleging asbestos exposure led to Irvin’s fatal lung cancer. Some of the defendants, including Caterpillar Inc. and Navistar Internationap Transportation Corp., moved to transfer the matter to Winnebago County, but McWilliams denied that motion because the complaint argued Irvin was exposed to asbestos at a Cook County trade school in the late 1940s.

Other original named defendants are Borg Warner Corp., CBS Corp., Dana Companies, LLC, Federal-Mogul Asbestos Personal Injury Trust, Ford Motor Company, General Electric Corp., Genuine Parts Company, Georgia-Pacific, LLC, Goulds Pumps Inc., Goodyear Tire and Rubber Company, Hennessy Industries Inc., Honeywell International Inc., John Crane Inc., Kaiser Gypsum Company Inc., Kelsey Hayes Company, Mack Trucks Inc., Marmont Corp., McCord Corp., Metropolitan Life insurance Company, Pneumo Abex, LLC, and Union Carbide Corp.

According to Mason, Caterpillar sought leave to appeal pursuant to Illinois Supreme Court rules. Although the panel initially denied that petition, on Dec. 21 the state’s top court entered a supervisory order directing it to grant the petition and resolve the case on its merits.

In so doing, the appellate panel determined Irvin Rohl’s deposition testimony said he at most was “not sure” whether he encountered asbestos in Cook County, and the complaint contained no other connections to Cook. 

Rohl worked as a laborer, heavy equipment operator and mechanic for many of the named defendants from 1950 through 1999, during which time he was exposed to products — such as brakes, gaskets, clutches, engines, heavy duty equipment and vehicles — that contained asbestos.

In addition to the trade school, in 1946 and 1947, Rohl said he encountered asbestos working in Evansville, Ind.; Freeport, which is in Stephenson County; and in Rockford, in Winnebago County, from 1953 to 1999. He worked at Rockgord Blacktop from 1957 until retiring. At the trade school, Rohl said he worked with new and clean brakes, clutches and gaskets, and never used compressed air to clean them.

Mason wrote that, although neither side demonstrated a clear advantage in arguing for the convenience of a Cook County trial, ease of access to testimony and evidence “strongly favors Winnebago.” The only potential witnesses who don’t live in Winnebago County are doctors who treated Irvin Rohl at a Mayo Clinic in Arizona. Further, “many of Irvin’s employment records predate computer technology and so we may not assume they are as readily available as records of more recent vintage.”

According to mason, there were more than 1.1 million civil cases pending in Cook County at the end of 2016, compared to just 93,950 in Winnebago County. However, the time between filing and a law jury verdict exceeding $50,000 was four months longer in Winnebago.

Absent a “significant factual connection” to Cook County, and overwhelming public interest, the case was remanded with directions for McWilliams to transfer the complaint to Winnebago County.

According to Cook County court records, the Rohls were represented by attorney Gabriel Saade, of the Ferraro Law Firm, of Miami, Fla.

Caterpillar was defended by the firm of Cray Huber, of Chicago, and Navistar was represented by the firm of Swanson Martin Bell, of Chicago.

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Cook County Circuit Court Cray Huber Horstman Heil and VanAusdal LLC Illinois First District Appellate Court Illinois Supreme Court Swanson, Martin & Bell LLP

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