Illinois Supreme Court to Review Workers’ Compensation Exclusivity in Asbestos Cases

This alert is pertinent to employer-defendants in asbestos cases. The Illinois Supreme Court will take up three certified questions presented by the United States Court of Appeals for the Seventh Circuit regarding Illinois workers’ compensation exclusivity (WCE). In the opinion of some, this has potential to set things back to right. Going back several years, asbestos case defendants were frustrated with an inability to get certain Illinois trial courts to apply the WCE statute favorably. Then, the Illinois Supreme Court issued the Folta decision in 2015, and corporate defendants enjoyed a brief period of favorable application of the WCE doctrine until the Illinois legislature passed what is often referred to as “anti-Folta” legislation. Notably, Mike Schag spoke on WCE in the Post-Folta Environment at the Midwest Litigation Conference in 2019. Since the advent of the new legislation, WCE in Illinois has been a bit of a dead letter. Seeking an application of foreign law where possible has been apropos. Yet, the promise of the Illinois Supreme Court’s review of the certified questions is that it might break open some new daylight for employer defendants who might object to having the newer legislation applied retroactively to the events of many years past occurring under a different statutory framework. Having certified one of the questions under the Illinois due process clause, the Seventh Circuit has acknowledged it is a question of constitutional dimension. 
 
To learn more about our Toxic Torts & Asbestos Practice, visit https://www.heylroyster.com/practices/toxic-torts--asbestos