An Illinois appeals court has revived significant portions of a lawsuit that seeks to assign blame for birth defects to Motorola, rejecting, in part, the company's arguments parents and former Motorola workers can't sue because the fathers, rather than the mothers of the children, allegedly were exposed to the alleged toxic substances at Motorola factories in Arizona and Texas.

In an opinion issued Feb. 20, a three-justice panel of the Illinois First District Appellate Court overturned the decision of Cook County Circuit Court Judge Irwin J. Solganick, who had dismissed the complaints of families who linked birth defects to “fathers’ exposure to toxic chemical products and substances during their employment at Motorola Inc.’s semiconductor manufacturing facilities in Arizona and Texas.”

John D. Cooney
John D. Cooney | Cooney & Conway

Justice Mary Anne Mason wrote the opinion, and Justices P. Scott Neville Jr. and Michael B. Hyman concurred. They noted the case is one of eight different personal injury complaints Motorola faces from former employees linking birth defects to workplace exposure to toxic chemical products and substances. Two of the plaintiffs in the complaint on appeal, who say their fathers were exposed to toxic chemicals in controlled environment clean rooms, reported deformities such as clubfoot and underdeveloped jaws.

The families, represented by the firm of Cooney & Conway, of Chicago, had sued for negligence, strict liability, breach of an assumed duty, willful and wanton misconduct and loss of child consortium. Solganick dismissed the complaint after determining the “plaintiffs could prove no set of facts that would entitle them to relief,” according to Mason.

On appeal, the families said Solganick was wrong to say state workers’ compensation laws barred claims, that no duty was owed to children who had not been conceived and that proximate cause couldn’t be established because the fathers themselves were not legally injured.

Both Texas and Arizona workers’ compensation laws are written narrowly to focus on employee-sustained, work-related injuries, and Motorola said exclusive remedy provisions applying to loss of consortium or wrongful death claims can only proceed when linked with a work-related injury claim. However, the First District Appellate panel cited several other complaints in which offspring were able to demonstrate injury resulting from a parent’s employer’s negligence.

Still, Motorola tried to further isolate fathers because their children can never be exposed to workplace chemicals during pregnancy as they could if the mother were an employee. While being “willing to concede the viability of a claim for birth defects suffered by the child of a female employee exposed to toxic chemicals in the workplace,” Mason wrote, the company said men couldn’t make such claims.

However, the panel said the way the toxic chemicals enter the bloodstream affecting the fetus is legally indistinct, making the origin of those chemicals the prevailing concern. And conceding viability for a claim from children of female workers, Mason continued, becomes a concession of the viability of claims on behalf of children for defects incurred through their fathers’ exposure to defect-causing substances. The panel further said the plaintiffs’ claims survive precisely because they focus on the injuries of the children, noting the children would not have standing to plead a claim on behalf of their parents.

“Motorola’s duty to provide a safe workplace free from harmful toxins extended to all its employees - male and female,” Mason wrote. She supported plaintiffs’ contention it didn’t matter when the children in question were conceived, with relation to their standing to bring a complaint, so long it was after their parents were exposed to the chemicals.

Mason wrote the panel had no opinion on whether the plaintiffs’ would succeed on the merits of their complaints, only that dismissal was inappropriate. The justices agreed with Solganick’s dismissal of the loss of child consortium complaint for the Texas plaintiffs, as that is not a valid cause of action under that state’s laws.

The case was remanded to circuit court for further proceedings.        

According to Cook County court records, Motorola has been represented in the action by attorneys with the firm of Gordon & Rees LLP, of Chicago.

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Cooney & Conway Gordon Rees Scully Mansukhani, LLP Illinois First District Appellate Court

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