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Illinois Law Update
OTHER EXPOSURE EVIDENCE IS PERMITTED WITHOUT PROOF OF SOLE PROXIMATE CAUSE
In Smith v. Illinois Central R.R. Co., 2015 IL App (4th) 140703, the defendant Illinois Central R.R., as the only remaining defendant at trial, was prohibited from proffering evidence as to plaintiff’s other asbestos exposures, notwithstanding his extensive exposures at the UNARCO plant. The jury rendered a verdict against the railroad which was appealed. The 4th District Appellate Court reversed and remanded for a new trial holding that the defendant should have been permitted to put on the evidence of plaintiff’s other exposures. The Illinois Supreme Court denied appeal on November 25, 2015.
Plaintiff’s counsel opposed allowing other exposure evidence arguing that defendant did not properly mount a sole proximate cause under Nolan v. Weil-McLain, 233 Ill.2d 416 (2009) and that the defendant was precluded from raising the sole proximate cause defense insofar as the defendant did not admit that the plaintiff had asbestosis. The Appellate Court first held that the frequency, regularity and proximity test adopted in Thacker v. UNR Industries, Inc., 151 Ill.2d 343, 603 N.E.2d 449 (1992), did not create a presumption of causation and further that the Illinois Supreme Court in Nolan v. Weil-McLain struck down the exclusionary rule created and supported by prior court opinions such as Lipke v. Cetotex Corp., 153 Ill.App.3d 498, 505 N.E.2d 1213 (1988) and its progeny. The appellate court in the instant case held that the railroad did not have to prove anything and that plaintiff’s contention that the defendant had no-proximate-cause defense because it had no expert witnesses disclosed on causation was simply incorrect as a matter of law. The court held that the trial court committed egregious error in not allowing the railroad to present evidence of plaintiff’s other exposures at UNARCO especially considering that a large portion of the plaintiff’s case was based on plaintiff’s exposure to dust from UNARCO’s operation while working for the railroad.
It will be interesting to see how the courts interpret this opinion and whether the plaintiff’s bar will attempt another appeal in an effort to change this decision.
STATUTE OF LIMITATIONS FOR SPOLIATION OF EVIDENCE BEGINS TO RUN FROM DATE OF DATE OF DESTRUCTION AND NOT THE UNDERLYING CLAIM
The Illinois 2d District Appellate Court in Skridla v. General Motors Company, 2015 IL App (2d) 141168 (December 28, 2015), ruled that the statute of limitations for spoliation claims begins to run from the date of the destruction of the evidence (or the date on which the plaintiff discovers the destruction) as opposed to the date of the underlying claim. The court also ruled that the length of the limitations period is the same as that of the underlying claim given that the claim is derivative. The plaintiff had argued that his spoliation claim arose from destruction of the property as opposed to personal injury and thus, there is no applicable statute of limitations. Plaintiff argued that under Schusse v. Pace Suburban Bus Division of the Regional Transportation Authority, 334 Ill.App.3d 960 (2002), when there is no statutory provision for a statute of limitations, it falls under the catch-all five-year period in section 13-205 of the Code (735 ILCS 5/13-205 (WEST 1994). The 2d District Appellate Court disagreed and found that the spoliation of evidence claim is a derivative cause of action and thus, the proper focus was the plaintiffs’ underlying personal injury negligence claims and the recovery sought in those counts. Because the plaintiff did not file the spoliation claim within the 2 years of the destruction of the evidence, the spoliation claims were time barred. No further appeal has been sought from this opinion.