CBA Record November-December 2023

YOUNG LAWYERS SECTION

Demystifying Asbestos Litigation: A Primer for Illinois Attorneys By Andre Hunter, Jr.

I llinois is widely considered the epicenter of asbestos litigation, as it has the most filings of any state. You have likely heard it on television: “Have you or a loved one been diagnosed with mesothelioma?” In 2022, 84% of America’s asbestos lawsuits were filed in just 15 jurisdictions—43% were filed in Madison County, St. Clair County, and Cook County, Illinois. Respectively, they rank first, second, and seventh for most asbestos filings in the county. Whether you are a new attorney or a seasoned litigator, this primer will guide you in navigating one of Illinois’ most prev alent types of injury lawsuits. What is Asbestos? Asbestos is an umbrella term for six min erals that can be separated into thin, yet durable threads of fiber. Applauded for its remarkable heat, chemical, and fire resistant properties since the late 1800s, these fibers have been used in a plethora of industrial, automotive, and construc tion products. Asbestos minerals and products are generally divided into two sub-groups: serpentine and amphibole. Serpentine asbestos, the prevalent type, is a curvy, white fiber containing the mineral chrys otile. Amphibole asbestos consists of five distinct needle-like fibers. Although all are regarded as hazardous, crocidolite (blue asbestos) and amosite (brown asbes tos) are widely recognized as the most per ilous within the amphibole group. When these microscopic fibers become

“friable” (i.e., crumbled or broken), they can be inhaled or ingested, potentially triggering asbestos-related diseases. There are scientific contentions between asbes tos exposure and asbestos disease, which is centered on a “dose-response rela tionship”—in other words, the higher the dose or level of exposure to friable asbestos fibers, the greater the likelihood of contracting an asbestos-related dis ease. However, a medical debate exists on whether chrysotile asbestos can even cause mesothelioma, or at minimum, its relative carcinogenicity when compared to amphibole asbestos. See N olan v. Weil McLain, 233 Ill. 2d 416 (2009). Asbestos-Related Diseases Asbestos-related diseases are often diag nosed at advanced stages with limited treatment options. These diseases can include: • Mesothelioma: cancer of the mesothe lium, the protective membrane sur rounding vital organs, may develop 20-60 years after asbestos exposure; however, survival rates are often only 4-18 months after diagnosis, with only a 10% survival rate after five years. • Lung Cancer: although less common, inhalation is associated with an increased risk of small and non-cell lung cancer, which may occur 15-35 years after exposure. • Asbestosis: an irreversible lung condi tion, this is a gradual diminishing of breathing function after scarring of

lung tissue by friable asbestos fibers. On average, patients survive approxi mately 10 years post-diagnosis and face an elevated risk of developing mesothelioma or lung cancer. • Plaques and Effusions: pleural plaques (scarring of the pleura, the membrane lining of the lungs and chest) and pleu ral effusions (accumulation of fluid in the pleura) may serve as medical indica tors of exposure. Plaques and effusions may also manifest in the peritoneum, the membrane of the abdominal organ. While not fatal on their own, they signal potential progression to more serious conditions like mesothelioma. In the early 1970s, asbestos regulations emerged following the enactment of the Occupational Health and Safety Organi zation. By the 1980s, an escalating wave of asbestos-related lawsuits prompted numerous asbestos producers and dis tributors to seek bankruptcy protection. Over 130 bankruptcy trusts have been established to directly compensate plain tiffs for their asbestos claims. Presently, plaintiffs’ firms also pursue litigation against as many of the still-solvent entities as possible. Plaintiffs regularly initiate cases in jurisdictions unrelated to the alleged exposure or the parties’ domicile. For instance, 94% of plaintiffs in Madi son County were non-Illinois residents. Asbestos Litigation: Choice of Law Considerations

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