Who Goes on the Verdict Form: Illinois’ Approach to Non-Parties and Settling Defendants and the Apportionment of Fault
Under Illinois law plaintiffs have the burden under the provisions of the Joint Tortfeasor Contribution Act, 740 ILCS 100/0.01 et seq., to apportion liability and payment among the defendants. Defendants, third-party defendants, and defendants who have already settled with the plaintiff would all need to be included on the verdict form for the jury to appropriately apportion fault. However, this approach was turned on its head with the 2008 decision in Ready v. United/Goedecke Services, Inc., 232 Ill.2d 369, 905 N.E.2d 725, 328 Ill.Dec 836 (Ill. 2008).
A. Do Defendants Who Have Settled Go on the Verdict Form? Ready said “No”
The Ready decision arose from the death of the plaintiff’s husband, a construction worker, who was killed when he was struck by a falling piece of scaffolding. The plaintiff filed suit against the premises owner (the decedent’s employer), the general contractor and the subcontractor working on the project. The building owner and the general contractor settled with the plaintiff prior to trial, leaving the subcontractor as the only defendant at trial. The trial court granted plaintiff’s motions in limine, which prohibited the subcontractor from presenting any evidence regarding the conduct of the settled defendants and from naming them on the jury verdict form for the purposes of apportioning fault. The jury awarded a verdict of $14.23 million, which was thereafter offset by decedent’s comparative negligence (35%) and the amounts paid in settlement by the other two defendants, leaving the subcontractor holding the bag for approximately $8 million. The subcontractor appealed, arguing that the trial court erred in not including the settling defendants on the jury verdict form, pursuant to the Illinois Joint Liability Act (the “Act”)1.
On appeal, the court agreed with the subcontractor, reasoning that if the other defendants had been included on the verdict form, the fault apportioned to the subcontractor may have been less than 25%, which under section 2-11172 of the Act would only leave it severally liable rather than jointly liable for the entire award. The court found, contrary to the trial court, that evidence relating to the culpability of the settled defendants was relevant and admissible for these purposes. The appellate court reversed the trial court’s ruling and remanded the case for a new trial on the issues of liability and apportionment of damages only.
However, on appeal by the plaintiff, the Illinois Supreme Court disagreed with the stance taken by the appellate court. Confining its analysis to the 1986 version of the Act, which was in effect at the time of the decedent’s accident, the court felt that the language in the Act “Defendants sued by the Plaintiff,” in the second sentence of the Act, was ambiguous, in that it was unclear whether “sued” included defendants who had been named as parties to the action at any time, or only those against whom the plaintiff proceeded to trial.
Based on its determination that the language of the Act was ambiguous, the court proceeded under two rules of statutory construction: (1) that where the legislature neglects to amend a statute after judicial construction, it is presumed that the legislature has sanctioned the court’s interpretation of the legislative intent, see Wakulich v. Mraz, 203 Ill.2d 223,233, 271 Ill.Dec 649, 785, N.E.2d 842 (2003); and (2) that the legislature’s choice to amend a statute creates a presumption that the amendment was intended to change the law, see People v. Hicks, 119 Ill.2d 29, 34, 115 Ill.Dec 623, 518 N.E.2d 148 (1987).
The court looked to Blake v. Hy Ho Restaurant, Inc., 275 Ill.App.3d 372, 210 Ill.Dec. 5, 652 N.E.2d 372 (5th Dist. 1995), in which the appellate court held that settling defendants were not to be included in apportionment of fault, and noted that the legislature failed to address the holding of that case. The court also considered certain amendments entitled the Tort Reform Act of 1995, which among other things stated that settling defendants were to be included on the jury form. Though these amendments were later declared unconstitutional and void ab initio, the court inferred that if the Act was intended to include settling defendants on the verdict form, then there would be no need for such language in a subsequent amendment. Finally, the court noted that during a floor debate of a bill intended to amend section 2-1117 of the Act, Illinois Senator John Cullerton stated that “the intent of the 1986 statute was … if you settle with somebody, their names don't go on the verdict form.” 95th Ill. Gen. Assem., Senate Proceedings, March 20, 2007, at 77 (statements of Senator Cullerton). Based on these principles, the court determined that the legislature never intended to include settling defendants on the jury verdict form under the Act. As a result, the court reversed the ruling of the appellate court and held the subcontractor jointly and severally liable for all of the damages awarded at trial.
B. Even After Ready
While the holding in Ready was confined to the 1986 version of the Act, Illinois courts have subsequently expanded the scope of that opinion to include the Act as it exists today. In Heupel v. Jenkins, 395 Ill.App.3d 689, 335 Ill.Dec. 659, 919 N.E.2d 378 (1st Dist. 2009), the appellate court reconsidered the trial court’s decision to include the settling defendant on one of the jury verdict forms in light of Ready. The court in Heupel analyzed the decision of the Ready court, and noted that the opinion was based on an earlier version of the Act, and therefore may not properly apply to the present version. However, the appellate court determined that the only difference between the version of the Act scrutinized in Ready and that which exists today is that the legislature added certain language in 2003 which excluded a plaintiff’s employer from third-party defendants subject to a finding of fault. The court determined that this amendment did not alter the allocation of fault with respect to other parties, and did not alter the “defendants sued by the plaintiff” language upon which the Ready court premised its opinion. Consequently, the appellate court reversed the finding of the circuit court and ordered a new trial, as the settling defendant was improperly included on the jury form and it could not be certain that the jury did not take this into consideration when apportioning fault.
Later decisions have served to reaffirm that the interpretation in Ready still holds force today. See Denton v. Universal Am-Can, Ltd., 2015 IL App (1st) 132905, 389 Ill.Dec. 358, 26 N.E.3d 448 (2015) (citing Ready for the proposition that tortfeasors who have settled in good faith and been dismissed from a lawsuit are exempt from section 2-1117 of the Act and may not be apportioned fault by the trier of fact, and noting that this development is very advantageous for plaintiffs). As a result of these decisions, settling defendants in Illinois are almost entirely immune from apportionment of fault. While the decision in Ready has certainly elicited a more consistent interpretation of the Act throughout Illinois’ courts, this approach does create the danger of plaintiffs suing numerous defendants that are only minimally at fault and proceeding to trial solely against those with the highest policy limits, regardless of their relative culpability. Defense counsel representing clients in Illinois should take this into account and carefully monitor which defendants are settling, to ensure that they are not left holding the bag for injuries that were largely the fault of another party.
C. If not you, who? Nolan and the Sole Proximate Cause Defense
While Ready and subsequent opinions have held that settling defendants and non-parties cannot go on the verdict form to appropriately apportion fault, Illinois courts have also wrestled with what exculpatory evidence a defendant may present at trial. Nolan v. Weil-McLain is a 2009 Illinois Supreme Court decision in which Weil-McLain found itself in the unenviable position of being the last defendant in an asbestos case. 233 Ill. 2d 416, 418, 910 N.E.2d 549 (2009). Though Nolan doesn’t change who goes on the verdict form, the decision did make it clear that defendants were allowed to present alternative exposure testimony, but only when asserting that other defendants or third parties were the sole proximate cause of a plaintiff’s injuries.
Clarence Nolan was a millwright, plumber, pipefitter and boiler installer/repairman, and had worked with several of Weil-McLain’s asbestos-containing components supplied with its boilers. Plaintiff put on evidence that decedent had worked with Weil-McLain’s boilers 20-25 times during decedent’s 38-year career. On cross examination, plaintiff, son of Clarence Nolan, testified that while working with decedent, 75% of their time was spent performing pipefitting work at a Quaker Oats plant. Defendant made several offers of proof, and more specifically, defendant advanced the theory that Nolan’s mesothelioma and eventual death was caused by high-dose and repeated exposures to amphibole fibers from sources besides the products it manufactured, of which there was evidence that the Weil-McLain products only contained chrysotile fibers.
Ultimately, the Court held that the “exclusion of evidence of decedent’s other exposures to asbestos eliminated evidence of alternative causes for decedent’s injuries, improperly preventing defendant from supporting its sole proximate cause defense3 (citing Warner/Elektra/Atlantic v. County of DuPage to highlight the effect of plaintiff’s position in that “[P]laintiffs would have the issue of proximate cause tried in a vacuum, with no reference to the other actors whose conduct may also have been a proximate cause of [decedent's] injury. In the trial scenario [defendant] could argue to the jury that it was not responsible for the [injury to decedent], but could not suggest who was responsible. Thus, the jury's natural question--'If not you, who?'--would be left unanswered. That result would be untenable.")4
The fact pattern in Nolan, however, does not offer late-coming defendants much in the way of allowing a jury the ability to apportion fault among several defendants, but it does allow a defendant with the “not me” argument to present evidence of “then who.” The issue that is not clear, and has not been decided in more recent decisions at the trial or appellate level, is whether the “sole proximate cause” must be a single product or defendant or whether a combination of alternative products or exposures in combination may be admissible as the “sole proximate cause” of a Plaintiff’s injuries or disease. Further, as Nolan dealt with a defendant whose defense rested on the premise that exposure to chrysotile fibers, in the amounts to which plaintiff testified, was insufficient to cause mesothelioma, defendants that have higher exposure testimony or who have amphibole fibers in their products and premises might not be able to avail themselves of this defense. Otherwise, “evidence that another's negligence might also have been a proximate cause is irrelevant—and therefore properly excluded—if introduced for the purpose of shifting liability to a concurrent tortfeasor.”
D. Smith and an expanding Nolan
Smith v. Ill. Cent. R.R. Co., is a 2015 decision from the Appellate Court of Illinois, Fourth District,5 which appears to expand the ruling in Nolan to cases with asbestosis and where there is no distinction between chrysotile and amphibole fibers. 2015 IL App (4th) 140703, 37 N.E.3d 445. Similar to Weil-McLain in Nolan, Illinois Central Railroad Company found itself the lone defendant in an asbestos case. After a verdict for plaintiff, defendant appealed on the basis that the trial court erred in excluding alternative exposure evidence, among other reasons. The uncontested facts were that the plaintiff worked for the defendant, and that while working for the defendant, there was asbestos dust blowing in from the neighboring UNARCO facility. The plaintiff sought to exclude evidence that prior to working for the defendant, plaintiff had worked for a period of time at UNARCO, where arguably there was much more extensive exposure. The trial court granted plaintiff’s motion in limine excluding any evidence of alternative exposure “in the absence of any evidence as to sole proximate cause.” Despite an offer of proof that the plaintiff’s exposure at UNARCO would have amounted to an “asbestos exposure greater than 25 fiber years, ‘depending on his job,’” the court denied the defendant’s motion for a directed verdict.
However, on appeal the Fourth District, citing Leonardi v. Loyola Univ., reasoned that even though“[p]laintiff insist[s] that defendant[‘s] general denial of negligence is insufficient to raise the sole proximate cause defense” and while,”[p]laintiff maintain[s] that defendant should be required to plead sole proximate cause of a non-party as an affirmative defense.’ This contention is erroneous.” The Court further stated:
In any negligence action, the plaintiff bears the burden of proving not only duty and breach of duty, but also that defendant proximately caused plaintiff's injury. [Citations.] The element of proximate cause is an element of the plaintiff's case. The defendant is not required to plead lack of proximate cause as an affirmative defense. [Citation.] Obviously, if there is evidence that negates causation, a defendant should show it. However, in granting the defendant the privilege of going forward, also called the burden of production, the law in no way shifts to the defendant the burden of proof.6
The Fourth District continued its reasoning that:
Based on our supreme court's opinions in Leonardi and Nolan, defendant in this case did not have to prove anything. We find plaintiff's argument defendant had no-proximate-cause defense because he had no expert witnesses disclosed on causation is simply incorrect as a matter of law. Defendant did not need to establish UNARCO was the sole proximate cause of plaintiff's condition. However, for plaintiff to prevail, he had to establish defendant was a proximate cause of his asbestosis. While defendant had no obligation to do so, it should have been allowed to present evidence of plaintiff's UNARCO work experience in an attempt to establish plaintiff's exposure at UNARCO was to blame for plaintiff's asbestosis should the jury find plaintiff had asbestosis. Because the trial court did not allow defendant to present this evidence, once the jury found plaintiff had asbestosis, it could only conclude the asbestosis was caused by plaintiff's exposure to asbestos while working for defendant.7
Further, the Fourth District Court of Appeals found that the trial court’s error was particularly egregious, and that had defendant been allowed to put on evidence of plaintiff’s exposure at UNARCO, a “jury could have found plaintiff failed to prove defendant caused his asbestosis.”8
While no other appellate district in Illinois has elected to expand or constrict Nolan,9 it appears that within certain courts10 the sole proximate cause defense as laid out in Nolan has been substantially expanded to include cases where a sole defendant at trial may be allowed to present alternative exposure evidence if denying that its exposures were a proximate cause of a plaintiff’s injuries.
Under Illinois law, as it currently stands and without amendment by the legislature, defendants cannot place defendants who have already settled or culpable non-parties on the verdict form. The legal landscape in Illinois continues to be notoriously difficult to navigate for defendants, and, unfortunately, often appears to be a high-stakes game of Hot Potato where the entire idea is to not be the last defendant in a case. Further, in most jurisdictions, even presenting alternative exposure theories appears to be limited to cases where a defendant can clearly identify an alternative “sole proximate cause” of the Plaintiff’s disease and injuries. However, as Smith may encourage certain last-standing defendants to take a crack at alternative exposure evidence, we may soon see corroboration or a circuit split forcing the Supreme Court of Illinois to provide defendants with more guidance.
About the Authors
- Tracy Cowan is Partner-in-Charge of the St. Louis, Missouri office of Hawkins Parnell Thackston & Young LLP. He has 24 years experience managing national mass tort litigation for corporate clients. He has litigated toxic tort, product liability, transportation, FELA and environmental matters in trial courts throughout the United States and has served as lead trial counsel in multiple jurisdictions.
- Alejandro Frank is an associate attorney with Hawkins Parnell Thackston & Young LLP. He focuses on defending corporations and manufacturers in product liability and toxic tort litigation in state and federal courts. Alex is active in all phases of litigation.
For similar guidance in other states, please refer to the following Who Goes on the Verdict Form publications:
- Alabama: Pointing Fingers Across “the V” in Alabama
- Arkansas: Arkansas’ Evolving Apportionment Rules
- California: Proposition 51 and Apportionment of Fault in California
- Connecticut: Tinkering Toward Utopia Leads to Complexity in Connecticut
- Florida: Florida Rules on Apportionment of Liability
- Indiana: Is There Causative or Fault-based Apportionment in Indiana?
- North Carolina: Contributory Negligence & Pro Rata Apportionment in North Carolina
- Oregon: Obfuscation in Oregon
- South Carolina: South Carolina Law Needs Clarification
- Washington: The Empty Chair Variable in Washington
- West Virginia: West Virginia’s Adoption of Modified Comparative Fault
1 Illinois’ Joint Liability Act was created with the purpose of preventing minimally responsible defendants from facing joint and several liability for the full amount of a plaintiff’s damages. 735 ILCS 5/2-1117, et seq.
2 At present: § 2-1117. Joint liability. Except as provided in Section 2-1118, in actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff's past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant except the plaintiff's employer, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants except the plaintiff's employer, shall be jointly and severally liable for all other damages.
3 233 Ill. 2d 416, 418, 910 N.E.2d 549, at 567
4 No. 83-C-8230, 1991 U.S. Dist. LEXIS 2559 (N.D. Ill. March 6, 1991)
5 The 4th District of Illinois is comprised of the following Circuit Courts: 5th Circuit (Clark, Coles, Cumberland, Edgar and Vermillion Counties); 6th Circuit (Champaign, DeWitt, Douglas, Macon, Moultrie, and Piatt Counties); 7th Circuit (Greene, Jersey, Macoupin, Morgan, Sangamon, and Scott Counties); 8th Circuit (Adams, Brown, Cass, Calhoun, Mason, Menard, Pike, and Schuyler Counties); and 11th Circuit (Ford, Livingston, Logan, McLean, and Woodford Counties).
6 Id. at ¶ 54 (citing 168 Ill. 2d 83, 93-94 658 N.E.2d 450, 455 (1995)) (emphasis added)
7 Smith, at ¶ 67
8 Id. at ¶ 68-69.
9 As of the date of publication of this article. Likewise, the holding in Smith is as yet undisturbed.
10 See Footnote 5.
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