Following recent court action, defendants up against "take-home" asbestos exposure claims may need to rethink their legal strategy.

The Northern District of Illinois recently denied a Motion for Reconsideration of a Motion to Dismiss that the court had previously granted to a defendant in a "take-home" or "secondary" asbestos lawsuit.  In Neumann v. Borg-Warner Morse TEC LLC, No. 15 C 10507, 2016 WL 3059082, (N.D. Ill. May 31, 2016), the plaintiff filed a negligence action against several defendants.  The Plaintiff's son worked as a gas station attendant in the 1970s - a position in which he allegedly handled asbestos-containing products made by defendant.  The Plaintiff contended she was exposed to asbestos through "take-home" or "secondary" exposure via washing her son's work clothing that contained asbestos dust from the products he used at work. To view the court Opinion on this case, click here.

In its Motion to Dismiss, the defendant argued that it could not be liable to plaintiff under her "take-home" exposure theory because it did not owe her a duty, as she did not directly use the products in question.  In granting the Motion to Dismiss, the Court determined that Illinois does not yet recognize a duty to family members in "take-home" asbestos cases.  The Court looked to Illinois state court decisions to properly apply Illinois law on "take-home" exposure claims, noting a split in Illinois state appellate courts on whether a duty is owed to family members and that the Illinois Supreme Court had declined to address the issue.  The Court acknowledged the Illinois Supreme Court's opinion in Simpkins v. CSX Transp., 965 N.E.2d 1092 (Ill. 2012), but concluded that this novel question has not yet been definitively answered by Illinois state courts. In considering Simpkins, the Court held: "And while Neumann finds error in our reading of Simpkins, we again decline to adopt her more expansive interpretation, particularly in the absence of clear direction from the Illinois courts … We do not construe the Simpkins remand order as an implicit endorsement of take-home asbestos negligence." Neumann at *3 (internal citation omitted).

In Simpkins, the plaintiff had alleged that she was exposed to asbestos via "take-home" exposure through the negligence of the defendant, her husband's employer.  The Illinois Supreme Court affirmed the reversal of the Circuit Court's granting of defendants motion to dismiss on procedural grounds.  However, the Illinois Supreme Court did not expressly address the substantive question of whether a legal duty exists requiring a defendant to warn of "take-home" asbestos exposure.

The Neumann Court held that because there is no clear Illinois state case law on the issue, the Court must use Seventh Circuit rules of interpretation to direct it to limit liability in this case. Id. at *7. The court stated it is the Seventh Circuit's instruction to "'choose the narrower interpretation which restricts liability, rather than [a] more expansive interpretation which creates substantially more liability.'" Id. (internal citation omitted).

The remaining defendants all argued that the "take-home" allegations against them were identical and should likewise be dismissed.  The Court agreed, granting their motions as well, stating that its previous ruling "should and does apply with equal measure against all Defendants."  Id. at *5.

Due to the limitations of the Court's analysis and a lack of clear Illinois case law on the viability of "take-home" exposure cases, this ruling may have limited precedential value in Illinois state court. However, defendants facing allegations of "take-home" exposures in Federal court under Illinois law should consider citing Neumann in moving to dismiss those claims.