Nicholas vogelzang presents at perrin conferences
March 21, 2019 By Nicholas Vogelzang

Nicholas Vogelzang Presents at Perrin Conferences

I was recently given the opportunity to speak at the Perrin Cutting-Edge Issues in Asbestos Litigation Conference in Beverly Hills, California. This conference is unique in that, unlike most conferences for lawyers involved in a particular area of litigation, it brings together lawyers representing both sides, in addition to insurance carriers that ultimately pay the financial cost of the entire litigation. Insurers pay the defense attorneys to represent the defendant, they pay the settlement or verdict, and that settlement or verdict ends up compensating the plaintiff lawyer and ultimately the client. A knee-jerk thought from a plaintiff’s attorney would be to not commiserate with insurers as they need to be forced to pay the money through trial and seeing them at a conference would only be awkward given their opposite interests.

While the conference is predominantly attended by defense counsel and those working for insurance carriers, conference organizer Lynnsey Perrin invites lawyers representing the plaintiff to speak on panels with defense counsel. As lawyers in court representing our clients, we get a first-hand look at each other’s position and we know where the debate lies regarding asbestos exposure and disease. Putting that conflict on display from a speaker’s panel allows those participating in the litigation from behind the curtain to see how it plays out and hear directly from those who are demanding compensation for their injuries. In addition, it allows for direct communication over drinks and meals over the course of three days.

I had the exciting opportunity to speak on two topics. The first was emerging trends in asbestos litigation in Illinois. Trends in law typically emerge through verdicts and the subsequent appeals of those verdicts. Almost 99% of asbestos cases settle without going to trial, so when a case does go to trial, the methodology of both plaintiff and defense counsel as well as the judge is heavily scrutinized. The legal community has a chance to change the law if it no longer fits the current definition of society’s view of negligence.

In 2018, a trial in the fourth district of Illinois by the name of McKinney resulted in a $36 million verdict for a plaintiff who was exposed to asbestos for many years. One component of that exposure was secondarily from the unburnt portion of welding rods that contained asbestos, called the flux. The appellate court overturned the verdict, saying that there was not a quantification of the amount of asbestos fiber from the flux the plaintiff would have been around and that plaintiff did not show which welding rod manufacturers would have known about the hazards of asbestos at the time of the exposure. 2018 IL App (4th) 170333, ¶83. This was a change from what is normally required in Illinois asbestos law. Under a case from 1992 called Thacker, a plaintiff needs to show that they were exposed continuously, frequently, and proximately to asbestos. The case law emanating in Illinois from Thacker has traditionally not required a quantification of the amount of fibers one is exposed to but merely required that one saw visible dust from the product and breathed that dust into their lungs. In addition, the plaintiff has typically been considered to have met their burden on showing that a warning was required during the time period of plaintiff’s asbestos exposure if the state of the art regarding the hazards of asbestos is explained to the jury, i.e. what was known or knowable about the injurious nature of asbestos as the knowledge evolved through the decades. The 4th District Appellate Court in Illinois stated that the plaintiff should have explained what was known or knowable within the welding rod industry rather than simply what was known about the ingredient of asbestos within welding rods. 2018 IL App (4th) 170333, ¶60. Both the requirement of quantification of asbestos fibers and the requirement of state of the art for a specific product rather than asbestos was a significant departure from Illinois asbestos law. The Illinois Supreme Court denied the petition from the plaintiff regarding that appellate decision.

On the other hand,  the First District Appellate Court decided a case named Startley in 2017 regarding a drywaller who was exposed to asbestos in joint compound and died from mesothelioma. The case was dismissed mid-trial by a directed verdict saying that the plaintiff had not met their burden. On appeal, the 1st District Appellate Court found that plaintiff did in fact meet their burden despite not quantifying the amount of asbestos plaintiff inhaled or showing the state of the art of knowledge at the time of exposure for joint compound manufacturers. 2017 IL App (1st) 153649 ¶ 34. The Appellate Court found it sufficient that Plaintiff’s expert testified that even low levels of asbestos exposure cause mesothelioma. This created a split between the 1st and 4th District.

An even more recent case was tried in Cook County, Illinois in the First District by the name of Daniels in which the plaintiff was a lifelong pipefitter exposed to asbestos gaskets used on flanges. 2016 L 011308. The case resulted in a verdict for plaintiff in the amount of $6 million. The plaintiff quantified the asbestos with an industrial hygienist but not to the point of putting a number on the amount of fibers inhaled. In addition, state of the art was presented as it pertained to asbestos, and the plaintiff’s expert said that gaskets were known to contain asbestos from as early as the 1930s. However, neither of these things were done to the extreme level the Fourth District Appellate Court seemed to require in its McKinney decision. The Daniels case is now being appealed in the First District. The appellate court decision will likely further solidify the Startley decision. If that occurs, the Illinois Supreme Court may very well accept the petition and end the split, assuming the division is perceived as a split.