A proposed law on the governor’s desk would expand the reach of personal injury lawyers, allowing them to file suit against any business operating in Illinois that exposes individuals to toxic substances — even if the company and the plaintiffs are based in another state.
Trial lawyers say the measure would offer fairness and convenience, primarily for Illinois residents who are injured in other states. Traditionally those plaintiffs have had to file suit in the state where they were hurt or where the company is headquartered.
Critics warn the legal change would promote “venue shopping” — where plaintiffs look for the most favorable court in which to file suit — a practice that, in theory, is not permitted. If approved, Illinois would be one of the first states to adopt such an approach, said Mark Denzler, president of the Illinois Manufacturers’ Association.
“This is only for wealthy trial lawyers,” Denzler said. “There’s no benefit to Illinois residents because they already have access to these courts. This will create an economic black eye for Illinois. It will clog up the courts. Why should Illinois taxpayers pay for a case that should be out of state?”
The bill is also the subject of a court challenge, and the clock is ticking on what will become of the proposal — Gov. JB Pritzker must decide by Aug. 29 whether to sign the measure into law.
Under the measure, any company that registers to do business in Illinois could be brought into court to face allegations of harm from toxic substances. Cases of this type routinely involve multiple defendants, and under the measure only one of them needs to be from Illinois.
An Illinois resident who is injured in multiple states, such as someone who was exposed to asbestos while working at his employer’s plants around the country, would be able to sue in his home state, rather than having to file in multiple jurisdictions, said Tim Cavanagh, president of the Illinois Trial Lawyers Association.
That is a huge benefit to someone suffering from the devastating effects of mesothelioma, a rare and fatal cancer caused by asbestos, he said.
“It’s based on fundamental fairness,” Cavanagh said. “When companies do business in Illinois, why shouldn’t they be subject to its jurisdiction?”
Plaintiffs who claimed their cancer was caused by asbestos wrote to Pritzker pleading with him to approve the measure.
Dennis Klein, a retired mechanic in Glendale Heights, wrote that he received a “terrible” cancer diagnosis more than a year ago.
He said his job exposed him to asbestos, which was commonly used for decades in car brakes, gaskets and clutches. Nearly all of the automotive companies were out of state.
“These companies came into our state, sold their products, and now are trying to skirt having to pay for what they did,” Klein wrote. “I’m trying to live out the rest of my life and get my family some money for what they did to me, and they want me to follow them all over the world? When all of the asbestos was in Illinois? That doesn’t seem fair.”
Critics warn that the definition is so general that it would cover a broad range of products. The law firm DLA Piper stated that the definition may include medications, cosmetics, plastics and food.
Supporters of the change include dozens of trade and service unions represented by the Illinois AFL-CIO; the Illinois Environmental Council; and nonprofit progressive advocates Citizen Action Illinois. Opponents include groups representing business, agriculture, retailers, trucking and railroads.
Critics fear the measure will worsen the state’s’ reputation as a home to jackpot jury verdicts. Illinois is an attractive venue for plaintiffs because it was tied for fifth in the country among states with the most “nuclear” verdicts of more than $10 million between 2013 and 2022, according to the U.S. Chamber of Commerce Institute for Legal Reform.
Cook County, specifically, was named one of the nation’s top 10 “judicial hellholes” by the American Tort Reform Foundation. The pro-business group cited the large number of civil suits filed in Cook County, and Cook County’s numerous large awards. Three Illinois counties — Madison, St. Clair and Cook — already made up three of the top five counties nationwide for the largest number of asbestos lawsuits, the Illinois Coalition for Legal Reform reported.
Apart from the latest proposal, awards in some cases are likely to increase, since lawmakers recently added punitive damages and pre-judgment interest to wrongful death verdicts.
Senate President Don Harmon, a Democrat from Oak Park, was the chief Senate sponsor of the new toxic tort legislation, as it is called.
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“The point of this legislation is to hold accountable corporations whose toxic chemicals and materials cause injury and damage to Illinois residents,” said Harmon’s spokesman, John Patterson. “I’m not sure why anyone would want to give such corporations a pass. The law would only apply to co-defendants when another defendant is already subject to Illinois law under current venue laws.”
Rep. Jay Hoffman, the assistant majority leader from downstate Swansea, also spoke out in favor of the idea. “It closes a dangerous loophole that allows out of state corporations to evade responsibility for the harm they’ve caused, while those same corporations are taking advantage of the Illinois economy and doing business here,” Hoffman said. “It simply says, if you’re doing business in Illinois, you’re subject to the jurisdiction of Illinois.”
A similar law was approved in Pennsylvania. In New York, Democratic Gov. Kathy Hochul vetoed a similar measure. But advocates say the New York plan was broader and included nonprofits and governmental entities, not just businesses.
Both sides in the argument have given big campaign contributions to Illinois lawmakers over the years. The trial lawyers’ group has contributed $9.5 million, and the manufacturers nearly $8 million since 2000.
The Illinois bill also is the subject of a court fight over whether the General Assembly rushed it through without following constitutional requirements. Republican lawmakers filed suit against Harmon and House Speaker Emanuel “Chris” Welch challenging the passage of the law. They object that the bill was improperly introduced on the second-to-last day of the spring session, with little opportunity to review, debate or modify the measure.
The Illinois Constitution requires that each bill undergo three different readings by title on three different days in each chamber of the General Assembly. In this case, the bill was introduced by gutting and replacing the language of a previous bill which had gone through part of the required process, to technically allow for the required readings.
It’s a common tactic, used repeatedly to rush through legislation at the end of sessions, including for this year’s $55 billion budget.
“I believe it violates the Illinois Constitution on its face,” Senate Republican leader John Curran said. “It’s a widespread practice that has to end.”
The Illinois Supreme Court has previously upheld the practice. It accepted the signatures of the House and Senate leaders as proof the lawmakers followed the rules, under a concept known as the enrolled bill doctrine. But state appellate courts repeatedly have questioned this practice in legal rulings, suggesting the state Supreme Court reconsider the issue.
“This court is placed in a strange position when it is constitutionally required to turn a blind eye to a grave constitutional violation by a co-equal branch of government,” the 5th District wrote in one case.
The 4th District court agreed in a 2023 ruling, writing, “Allowing lawmakers to continue to ignore constitutional mandates under the enrolled bill doctrine, knowing full well the constitutional requirements were not met, belittles the language of the oaths, ignores the need for transparency in government, and undermines the language of this state’s constitution.”