Toxic Tort/Product Liability Alert
April 16, 2009
Authors:
Daniel G. Rosenberg
daniel.rosenberg@klgates.com
+1.312.807.4415
Gregory T. Sturges
gregory.sturges@klgates.com
+1.412.355.8964
Nicholas P. Vari
nick.vari@klgates.com
+1.412.355.8365
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Illinois Supreme Court Abandons Lipke
Doctrine
On April 16, 2009, in a long-awaited decision,1 the Supreme Court of Illinois
overruled the so-called Lipke doctrine, which precluded Illinois asbestos
defendants from presenting evidence of exposures to other entities asbestoscontaining products to establish that a plaintiff s injuries were caused by products
manufactured and sold by others. To date, the Lipke doctrine has virtually
precluded asbestos defendants in Illinois from establishing causation-based defenses
at trial, and it has made Illinois a difficult jurisdiction for modern asbestos
defendants, whose products often had little, if anything, to do with causing a
plaintiff s injuries.
The Nolan decision arose from an asbestos lawsuit filed in Vermilion County,
Illinois, in which the trial court, pursuant to the Lipke doctrine, refused to permit
the lone trial defendant to offer evidence of the injured plaintiff s exposures to other
entities asbestos-containing products to support the defendant s contention that
plaintiff s injuries were attributable solely to products manufactured and supplied by
others. In the absence of such evidence, the jury entered an award in plaintiffs favor
and the intermediate-level appellate court affirmed the award.2
Prior to Nolan, Illinois courts had interpreted Lipke v. Celotex Corp., 153 Ill. App. 3d
498, 505 N.E.2d 1213 (1st Dist. 1987), to flatly prohibit defendants from offering
evidence of exposures to products made and supplied by entities other than the trial
defendants. In Nolan, however, the Supreme Court held that the Illinois courts had
misinterpreted Lipke and that defendants may admit evidence of exposures to other
defendants products to support a sole proximate cause defense. 3
In reaching this decision, the court recognized that the decades-long and nearuniversal interpretation of Lipke by Illinois courts was simply incorrect. After years
of waiting for this decision, the Nolan opinion is a welcome development for
asbestos defendants in Illinois, who, for many years, have been effectively precluded
from defending themselves at trial. Nevertheless, the Nolan decision leaves open
significant further questions regarding its application in practice. Accordingly, while
it is certainly a positive development for Illinois asbestos defendants, many issues
remain to be decided before Illinois will lose its identity as a difficult forum for
asbestos defendants.
1
See Nolan v. Weil-McLain, Docket No. 103137, slip op. at 26 (Ill. April 16, 2009).
See Nolan v. Weil-McLain, 365 Ill. App. 3d 963, 851 N.E.2d 281 (4th Dist. 2006).
3
See Nolan, slip op. at 15-23.
2
Toxic Tort/Product Liability Alert
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©2009 K&L Gates LLP. All Rights Reserved.
April 16, 2009
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