A Chicago appellate court has overturned a lower court’s dismissal of a class action by parents who wanted paint companies to pay for mandatory tests of their children to see if the children had lead in their blood, finding the parents still hold the right to sue the companies, even though Medicaid footed the bill.
The Sept. 7 decision was penned by Justice Thomas Hoffman, with concurrence from Justices Joy Cunningham and Maureen Connors, of the Illinois First District Appellate Court.
The ruling favored Mary Lewis and Tashswan Banks, who are plaintiffs in a class action suit brought in 2000 in Cook County Circuit Court against Atlantic Richfield, ConAgra Grocery Products, NL Industries and Sherwin-Williams. Defendants allegedly made and sold lead paint when such paint was legal.
Plaintiffs lived in areas the Illinois Department of Public Health designated as high risk for lead poisoning, which required children ages six months to six years in those areas be screened for lead in their blood. Plaintiffs wanted defendants to reimburse them and other similarly situated parents and guardians for the costs of such tests done between Aug. 18, 1995, and Feb. 19, 2008.
In 2016, the companies asked Cook County Judge Peter Flynn to toss the suit, saying plaintiffs didn’t actually incur any expenses, because blood tests for their children were covered by Medicaid, and insurance took care of the tests for the children of a third plaintiff, Kathleen O’Sullivan. O’Sullivan also said she didn’t recall paying anything, according to court documents. Flynn agreed with defendants and threw out the suit.
Flynn issued an order allowing Lewis and Banks to appeal, but did not issue a similar order for O’Sullivan.
Lewis and Banks appealed, invoking the collateral source rule, which says benefits received by an injured party from a source independent of, and collateral to, the tortfeasor causing the injury, does not diminish the damages recoverable from the tortfeasor.
Lewis and Banks argued this rule applies to them, because although Medicaid may have eventually paid for the tests, they incurred the cost at the time of the tests and retain the right to recover that cost from defendants.
Justice Hoffman pointed out one of the justifications for the rule is a tortfeasor should not benefit from contracts or other relations that exist between an injured party and third persons.
Hoffman further found Lewis and Banks were “statutorily liable for the cost of that testing” and so have a “cause of action for the reasonable value of the testing services, without regard to the fact that Medicaid paid the entire cost.”
Hoffman sent the case back to circuit court for further proceedings.
Plaintiffs have been represented by the Chicago firm of Moirano, Gorman & Kenny. Plaintiffs’ original attorney was Patrick J. Sherlock, who became a Cook County circuit judge.
The Chicago firm of Winston & Strawn has defended Atlantic Richfield, and attorneys from the firm of Manatt, Phelps & Phillips, of Chicago, has handled the defense for ConAgra Grocery Products and NL Industries.
Sherwin-Williams Company has been defended by attorney Dennis H. Block, of suburban Glenview.