Illinois Federal Court Holds Asbestos Product Manufacturer Owes no “Take Home” Duty of Care

The Northern District of Illinois recently ruled that under Illinois law, an asbestos product manufacturer owed no duty of care to household members in a “take home” or “secondary exposure” asbestos case. Neumann v. Borg-Warner Morse Tec LLC, No. 15-10507, N.D. Ill., 2016 U.S. Dist. LEXIS 31280.

Plaintiff Doris Jane Neumann alleges that she contracted malignant mesothelioma through exposure to asbestos-containing products as a result of laundering the clothes of her son, who used asbestos-containing friction paper during his work as a mechanic. Originally filed in state court, the case was removed to federal court on diversity grounds. Subsequently, defendant MW Custom Papers moved for dismissal under Federal Rule of Civil Procedure 12(b)(6), alleging that it could not be found liable for negligence because it did not owe Doris Jane Neumann a duty of care under Illinois law.

In ruling on the motion, the federal district court noted with frustration that there was a split of opinion among Illinois appellate courts on the issue. The Illinois Supreme Court had the opportunity to decide the issue in Simpkins v. CSX Transp., Inc., 2012 Ill. LEXIS 330, 965 N.E.2d 1092 (2012), but declined to issue a definitive ruling. Thus, the Illinois Supreme Court never actually answered the question as to whether a “take home” duty of care existed in Illinois asbestos cases. As a result, the holding in Neumann takes on a heightened significance.

Neumann analyzed the following four factors set forth in Simpkins: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden upon the defendant. At the outset, the court determined that the foreseeability factor was sufficiently met under the liberal notice pleading standard used in federal court. Moreover, MW Custom Papers did not challenge the “likelihood of injury” factor. Importantly, the court emphasized that plaintiff completely failed to address the third and fourth policy-driven factors in her briefs and exclusively focused her arguments on the foreseeability factor, which “is not the only factor to be considered.” Although the court found “no precedents or other authorities that convince us how the Illinois Supreme Court would rule on this novel duty question,” it found two Illinois appellate decisions that addressed this issue, but came to opposite results. Lastly, the court looked toward outside jurisdictions for direction, where it once again found divided opinions throughout the country. “While the majority of courts have declined to extend a duty in this situation, that fact alone is not persuasive, particularly because duty and negligence principles vary among states.”

Neumann gleaned some guidance from the Seventh Circuit, which instructed that “[w]hen we are faced with two opposing and equally plausible interpretations of state law, we generally choose the narrower interpretation which restricts liability, rather than the more expansive interpretation which creates substantially more liability.” Applying this reasoning, the court adopted the more narrow view, finding that MW Custom Papers did not owe a duty to Neumann in light of the magnitude of the burden of protecting her and the potential ramifications of imposing that heavy a burden on MW Custom Papers.