Kathy C. Byrne: Asbestos injuries aren't over, still need time for remedies

The following letter to the editor by ITLA President Kathy C. Byrne was published in the Chicago Daily Law Bulletin on April 4, 2024.

It is first urgent to correct Patrick Eckler’s statement that the use of asbestos “ceased decades ago.” It did not. In 2022 asbestos was being used in brake linings, pads, and gaskets.  Deadly misinformation about current asbestos usage puts people at risk of cancer because they wrongly believe that products bought at a local shop are asbestos-free. I don’t doubt Mr. Eckler’s sincerity. The EPA ban on asbestos was overturned by the 5th Circuit Court of Appeals in 1991, leaving the asbestos product market wide-open. Asbestos injuries continue to mount and families continue to lose beloved ones. Most, like Mr. Eckler, assumed ‘they took the asbestos out decades ago.’

Mesothelioma arises 20‑50 years after exposure. Just as skin cancer doesn’t develop until many years after sun exposure, people working around asbestos products don’t get sick until many decades later. 

Latent diseases challenge traditional statutes of limitations. In 1981, the Illinois Supreme Court applied the “discovery rule” in Nolan v. Johns‑Manville Asbestos, 85 Ill. 2d 161, holding that an asbestos plaintiff’s statute of limitations begins to run at the time of diagnosis, not the time of exposure.'

In 2016, the Court reviewed the statute of limitations for mesothelioma in the workers’ compensation context. The Illinois Occupational Disease Act (ODA) gives workers 25 years to file a claim. Typically that’s before mesothelioma can be diagnosed. In Folta v. Ferro Engineering, 2015 IL 118070, plaintiff worked with asbestos at his job until 1970. Forty-one years later he was diagnosed with mesothelioma. Folta filed a direct action against his employer, arguing that the exclusive remedy rule did not apply, since the injury was not compensable under the time limitation. The appellate court agreed, but the Supreme Court reversed, specifically noting that the result was harsh, but “whether a different balance should be struck under the act given the nature of the injury and the current medical knowledge about asbestos exposure is a question more appropriately addressed to the legislature. It is the province of the legislature to draw the appropriate balance.”

In 2019, the Illinois Legislature amended the ODA. Now, if a disease arises after 25 years the plaintiff can sue the employer. This reflects the purposes and balances of the exclusive remedy of the ODA, which is a quid pro quo where the employer assumes liability without fault but is relieved of the risk of large verdicts. The legislature recognized that the prior statute gave a quid to the employer, but no quo to the employee, and rebalanced the equities as guided by Folta.

The Illinois Supreme Court will decide whether the amendments satisfy the balances emphasized in Folta when it hears argument in Martin v. Goodrich later this year. The amendments provide clear legislative intent to correct the inequitable situation of  an injured worker’s unknowable claim being barred because of the limitation period and barred from civil action because of the exclusive remedy provisions. Hopefully, the Court will follow the legislative intent and provide desperately injured workers a just remedy. 

Kathy C. Byrne
President, Illinois Trial Lawyers Association