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The Takeaway

When defending product liability cases in Illinois and Missouri—particularly those based on alleged asbestos exposure—defense counsel and clients need to be aware of the differences in how each of those states views causes of action.

Introduction

Can your product be considered unreasonably dangerous and defective enough to lead to liability?

Illinois and Missouri treat strict liability claims in products liability cases very differently. Plaintiffs in Missouri effectively have more arrows in their quiver than their colleagues across the Mississippi River.

Illinois effectively bars strict liability claims in products liability cases—including those arising out of alleged asbestos exposure—because of an applicable statute of repose. In contrast, Missouri permits strict liability claims in product liability cases, including those arising out of exposure to asbestos-containing products. Missouri product liability cases present additional challenges when compared to similar cases in Illinois.

Illinois’ Interpretation

In 1990, the Illinois Court of Appeals interpreted the relevant Illinois statute of repose, See Olson v. Owens-Corning Fiberglas Corporation, 556 N.E.2d 716, 145 Ill.Dec. 98, 198 Ill. App.3d 1039 (Ill. App. 1990).

Susan Olson, Howard Olson’s widow and the administrator of his estate, filed a wrongful death and survival action seeking damages against multiple defendants under theories of strict liability and negligence. Olson, 556 N.E.2d at 717. Ms. Olson alleged Howard was exposed to asbestos from 1938 to 1974. Id. Joseph O’Malley similarly filed a complaint in strict liability and negligence against multiple defendants alleging he was injured as a result of his exposure to asbestos products from 1948 to 1972. Id.

Both plaintiffs alleged that defendants designed, processed, manufactured, sold, and distributed asbestos products to which Howard Olson and Joseph O’Malley were exposed during their employment. Their strict liability counts alleged that the asbestos products were unreasonably dangerous and defective because they lacked proper warnings of the dangers of asbestos and proper instruction for the handling of the products. Id. The trial court granted defendants’ motions for summary judgment on the strict liability counts pursuant to 735 ILCS 5/13-213(b). Id. at 717-718.

On appeal, Plaintiffs contended that the product liability statute of repose [735 ILCS 5/13-213(b)] should be construed in such a way as to exempt asbestos products from those included in the reach of the statute of repose. They maintained that the latency period of asbestos-related illnesses means plaintiffs with asbestos-related injuries may be unable to discover their injuries for many years. Olson, 556 N.E.2d at 718.

Basically, the applicable Illinois statute of repose bars a product liability action based on the doctrine of strict liability for any tort that doesn’t start within 12 years of first sale or lease or 10 years from delivery of possession to initial user:

(b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort [emphasis added] shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.

In 1995, P.A. Act 89-7 amended the above section and substituted “any theory or doctrine” for “the doctrine of strict liability in tort” in multiple places. That amendment effectively made the statute apply to all product liability theories, not just strict liability.

The Illinois Supreme Court subsequently held that P.A. Act 89-7 was unconstitutional. See Best v. Taylor Machine Works, 689 N.E.2d 1057, 228 Ill.Dec. 636, 179 Ill.2d 367 (1997). As a result, the statute effectively reverted to its original language. It does not currently apply to negligence and breach of warranty actions.

In Olson, the Illinois Court of Appeals affirmed the trial court’s order granting defendants summary judgment, holding that 735 ILCS 5/13-213(b) applies to asbestos-related injuries. 556 N.E.2d at 719. The Court outlined that Illinois courts have implicitly held that 735 ILCS 5/13-213 applies to all strict liability claims involving products, including asbestos products. Id. The Court further noted that the same statute has also been applied to bar claims for DES-related injuries (another situation where the disease resulting from exposure to the product has a long latency period). Id. The appellate court also found that principles of statutory construction and legislative intent further supported the conclusion that the statute was meant to cover all strict liability claims involving products, including asbestos products. Id. The Court noted that the specific problem of asbestos injuries was brought to the attention of the legislature, including that the statute would cut off some asbestos claims before they accrue, and stated that the justices could not simply carve out an exception to the applicability of the statute despite concerns that the impact of the statute burdens some classes of plaintiffs more harshly than others. Id.

Although plaintiffs subsequently appealed the appellate court’s decision to the Illinois Supreme Court, the appeal was denied. Olson v. Owens-Corning Fiberglas Corporation, 561 N.E.2d 695, 149 Ill.Dec. 325, 133 Ill.2d 560 (Oct. 3, 1990).

Missouri’s Interpretation

In contrast, Missouri courts have reaffirmed that strict liability claims apply to product liability cases involving asbestos-related injuries.

In Poage v. Crane Co., defendant Crane Co. appealed a verdict in favor of plaintiff Jeanette Poage. 523 S.W.3d 496 (Mo. App. 2017). Plaintiff had filed a products liability suit against Crane Co. and multiple other defendants alleging that her husband, James Poage, suffered personal injuries and wrongful death from mesothelioma, which was allegedly caused in part by Mr. Poage’s work on Crane’s asbestos-containing products aboard the Haynsworth (the U.S. Navy ship on which Mr. Poage served ). Poage, 523 S.W.3d at 506. The jury found Crane Co. liable to Mrs. Poage under theories of strict liability and/or negligence. Id. at 507-508.

On appeal, Crane Co. contended that Plaintiff failed to present sufficient evidence to show their valves had a design defect because there was no evidence that using “asbestos-containing gaskets or packing” was required for the valves installed on the Haynsworth. Id. at 511. Crane Co. also argued that it should not and could not be held liable under strict liability or negligence for another company’s manufacturing or distribution of hazardous products. Id. at 513.

The Missouri Court of Appeals outlined that under Missouri’s products liability law, a plaintiff has three theories of recovery available: strict liability, negligence, and breach of warranty. Poage, 523 S.W.3d at 507.

To make a case under a strict products liability theory in Missouri, the plaintiff must show:

(1) the defendant sold a product in the course of its business; (2) the product was then in a defective condition, unreasonably dangerous when put to a reasonably anticipated use; (3) the product was used in a manner reasonably anticipated; and (4) the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold. Id. at 508.

The Court of Appeals indicated that the strict liability theory under Missouri law is further divided into liability for defective design of a product and liability for failure to warn of an inherent danger in the product. Id.

The Court ultimately found the trial record showed that:

• Poage presented sufficient evidence for a reasonable jury to conclude that Crane Co. was liable under theories of both negligence and strict liability.
• The record established that Crane Co. owed Poage a duty to warn.
• Crane Co. defectively designed its valves in an unreasonably dangerous manner.
• Crane Co.’s conduct was the proximate cause of Mr. Poage’s mesothelioma and eventual death. at 514

Crane Co.’s application for transfer to the Missouri Supreme Court was denied.