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The Madison County Circuit Court recently held that a distributor has a duty of care/duty to warn a secondary exposure plaintiff in the matter of Iben v. A.W. Chesterton Company, et al.   In reaching this conclusion, the Court denied defendant Graybar Electric Company’s Motion for Summary Judgment. Iben is a wrongful-death claim arising from allegations that Mrs. Iben developed and died from mesothelioma caused by her exposure to asbestos fibers carried home on the clothing or persons of her husband. A pivitol issue is whether Graybar Electric Company, as a distributor of asbestos-containing products, owed a legal duty to warn to Mrs. Iben, as the spouse of the user of products distributed by Graybar.

Mr. Iben testified that he used a Johns-Manville product called Korduct conduit supplied by Graybar in the course of his work as an electrician.   Mr. Iben testified that he used the Korduct conduit on twelve occasions, in 1979 and in 1981. It is uncontested that Mrs. Iben never used products distributed by Graybar.

Graybar argued that it is entitled to summary judgment under Illinois law because it did not owe a duty to warn the Decedent, Mrs. Iben, as the spouse of the product’s actual user who never personally used the product. Under Illinois law, the plaintiff and defendant must stand in a relationship to one another such that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff to establish a duty of care. Simpkins v. CSX Transp., Inc. 965 N.E.2d 1092, 1097 (2012). Graybar focused on the four factors set forth in Simpkins that Illinois courts use to evaluate the relationship between the parties to establish a duty of care under Illinois law: (1) the reasonable foreseeability of the injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant.

Graybar argued that the foreseeability argument is a crucial consideration in determining the existence of a duty to a non-user of defendant’s products.   Graybar argued that the risk of harm to Mrs. Iben was not foreseeable to Graybar because the scientific publications at the time of Mrs. Iben’s alleged exposure involved spouses of tradesmen who worked in “asbestos trades” that involved heavy exposures to asbestos in comparison with Mr. Iben’s casual use of the conduit. Graybar further pointed to the rarity of mesothelioma diagnoses arising exclusively from secondary exposures to asbestos.

Graybar conceded on the second element – risk of injury to Mrs. Iben – but argued that the third and four factors, which are public policy considerations, weigh heavily in favor of granting Graybar’s Motion for Summary Judgment.   Graybar contended that a distributor is very different from a manufacturer, and it is impossible for a distributor to warn a non-user of products it sells.

In response to Graybar’s argument, Plaintiff argued that Mrs. Iben’s exposure to asbestos attributable to the Korduct conduit was continuous because the asbestos fibers were in the family home 24 hours a day, 7 days a week. Further, Plaintiff argued that the risk of harm to Mrs. Iben was foreseeable to Graybar, pointing to testimony offered by Johns-Manville’s representative in 1975 stating that studies underestimated the exaggerated hazard of take home exposures and a 1960s study by Wagner regarding take home exposures to asbestos. Plaintiff also suggested that Johns-Manville provided warnings with the Korduct conduit, but Graybar failed to pass on those warnings.

The Madison County Court addressed a similar argument last fall in the case of Taylor v. Air & Liquid Systems Corp., a/k/a Buffalo Pumps, Inc., et al., Case No. 15 L 652, which was a similar claim involving a spouse’s secondary exposure to asbestos through her husband’s work at U.S. Steel’s premises. The defendant in Taylor was a non-employer premises owner, whereas Graybar is a sued as a distributor in Iben. In Taylor, the Madison County Court granted defendant U.S. Steel’s Motion for Summary Judgment on other grounds, without addressing the duty issue.

After hearing the arguments, the Madison County Court denied Graybar’s Motion for Summary Judgment. While the Court noted that Graybar made a good argument, it was denying the motion. The Court stated that although some states do not impose a duty for take home exposures to asbestos on defendants, Illinois is not one of those states.   As such, the Court ruled that it was denying the motion in line with Simpkins.