Choice of Law: Can Plaintiffs Avoid Limitations By Limiting Their Claims for Damages?

On May 9, 2017, the First District Appellate Court of Illinois issued its decision in Startley v. Welco, 2017 IL App (1st) 153649 (Ill. App. Ct. May 9, 2017).  In its holding, the Startley court appears to reduce the longstanding Illinois choice of law analysis to a question of whether any portion of a plaintiff’s injury may have occurred in Illinois.  If the answer to that question is in the affirmative, then the plaintiff may proceed with an action in Illinois, even though his action may be barred under the laws of a State in which the overwhelming majority of his injury occurred.

In Startley, the Estate of Ronnie Startley filed suit against Welco Manufacturing Company claiming that Welco products caused Ronnie to contract mesothelioma.  Ronnie was a drywall finisher and lived and worked almost all of his life in Alabama.  Ronnie’s family testified that throughout his career Ronnie had used several brands of joint compounds in his work, one of which was produced by Welco, and that the Welco compound contained asbestos. In 1965, Ronnie moved his family to Illinois and worked there for three or four months before returning to Alabama. In 2013, doctors discovered that Ronnie had contracted mesothelioma and he subsequently passed away in 2014.

The Estate’s amended complaint, filed in Illinois, included no allegations concerning Ronnie’s extensive exposure to asbestos while he worked in Alabama because Alabama’s statute of limitations completely barred all of the Estate’s claims as untimely. Eventually, the case went to trial and at the close of the Estate’s case, Welco moved for a directed verdict arguing that Alabama law should apply and that Alabama law barred the Estate’s claim. Welco emphasized that Ronnie lived, worked, and used their product almost all of his life in Alabama, having spent only 3 or four months using Welco products in Illinois. The trial court agreed, and ruled that Alabama law applied to the case and that the claim was therefore barred.  The matter was appealed to the First District, where the Estate asserted that Illinois law should apply and the matter should be remanded for a new trial.

The First District Court agreed with Plaintiff, and held that even though Ronnie was harmed in two states, and in one predominantly more than another (Ronnie allegedly inhaled asbestos for only a few months in Illinois compared to 40 or 50 years in Alabama), Welco was subject to liability under Illinois law.   The Court found that because “the Estate claimed damages only from the injuries inflicted while Ronnie worked with Wel-Cote in Illinois in 1965, when Ronnie and his family lived in Illinois,” that Illinois law would apply as to those damages, and that the Estate could maintain a cause of action despite Alabama law barring the claim generally. Startley, 2017 IL App (1st) 153649 ¶ 41.

This holding appears to be in contradiction to the choice of law principles laid out by prior Illinois Courts. First, Illinois has adopted the approach found in the Second Restatement of Conflict of Laws (Gregory v. Beazer East, 384 Ill. App. 3d 178, 196 (Ill. App. Ct. 1st Dist. 2008)), which provides that the rights and liabilities for a particular issue should be governed by the jurisdiction with the most significant relationship to the occurrence and the parties. Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007).

Next, Sections 6 and 145 of the Second Restatement of Conflict of Laws guide the court’s analysis. Section 6 contains three general principles relevant to choice-of-law determinations in personal injury cases: (1) the relevant policies of the forum; (2) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; and (3) the basic policies underlying the particular field of law. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 170-71 (2007); Restatement (Second) of Conflict of Laws § 6(2)(b), (c), (e) (1971). These general principles must be considered along with the factual contacts or connecting factors in section 145: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered.  Restatement (Second) of Conflict of Laws § 145 (1971).

In supporting its holding, the Startley Court stated that they applied the Townsend factors as well as the Ingersoll presumption, which states that if the injury at-issue occurred in Illinois then there is a presumption that Illinois law applies. The Court noted that the conduct that caused the injury included the shipment of Wel-Cote to Illinois, where Ronnie’s employer put the product to its intended use. Therefore, the Court held that the presumption was not overcome, and Illinois law should be applied. Startley, 2017 IL App (1st) 153649 ¶ 41.

Of particular note in the Startley case is the fact that there is no mention of expert testimony setting forth exactly what percentage of the injury was caused by exposure that occurred in Illinois.  Further, given the fact that the injury in this case was death due to longstanding exposure, and the exposure in Illinois occurred in 1965, with a diagnosis in 2013 and death in 2014, there appears to be a significant causation gap as well as a lack of evidence as to apportionment of the damages and potential verdict.  In any case, given the holding in Startley it will be important for manufacturers and their lawyers to determine early on in the litigation if there is an issue relating to injury in multiple states, and if so, to press the court and plaintiff’s counsel on causation and apportionment early and often in an attempt to alert the court to the problems inherent in the analysis.

David Tichy

David Tichy

David Tichy is an associate attorney with Cassiday Schade LLP, based in the firm’s Chicago office. He concentrates his practice in the defense of civil litigation matters.

Mr. Tichy earned his J.D., cum laude, from The John Marshall Law School in Chicago, Illinois where he was a member of The John Marshall Law Review and recipient of numerous merit scholarships. Mr. Tichy was awarded the CALI Award for Excellence in Payment Systems, Insurance Law, and Worker’s Compensation. In addition, Mr. Tichy was a member of the Moot Court Honors Program and competed in the National Veterans Law Moot Court Competition in Washington, D.C.