From the St. Louis Post-Dispatch

"Lipke rule" is unfair to defendants, many argue
By Paul Hampel
Of the Post-Dispatch
09/19/2004

The "Lipke rule," named for the plaintiff in a 1987 Cook County asbestos case, has a big impact on who pays how much in Madison County asbestos settlements.
Because of Lipke, if only one of 100 defendants in an asbestos case forced a trial, while the other 99 settled, a judge could bar the last defendant from suggesting at trial that one of the other 99 caused the plaintiff's illness.
The Lipke rule has not been tested by the Illinois Supreme Court.
Defendants say they think the high court would throw it out, but they are unwilling to take a case to trial and possibly incur a large jury verdict, just for the right to appeal to the Supreme Court.
"One reason the Lipke rule is so destructive is that most of the corporations that were most responsible for harming workers in America because of asbestos products are bankrupt - like Johns Manville," said an attorney whose client is frequently named as a defendant in mesothelioma suits.
"Say if the plaintiff worked at the Navy docks and was exposed to Johns Manville products for 30 years. He is - quite frankly - coached by trial lawyers to testify that he once did a home improvement job in his basement using a joint compound purchased at a hardware store.
"So this guy worked a few days in his basement with the joint compound. He worked for 30 years on the docks. But the jury only gets to hear about the joint compound."
Many legal experts say they know of no other state with a rule like Lipke.
Trial lawyer Randall Bono defends Lipke as fair, because, he says, "It only takes one fiber to cause mesothelioma."
He compared the disease to injuries resulting from an auto accident.
"If two cars both hit you, which one injured you? They both did. Both are a cause.
"In this case, if my client was exposed to more than one source of asbestos, more than one can be a cause."
And, he noted, any award against the last defendant would be reduced by the settlements with previous defendants.
Last year, 50 companies that are regularly named as defendants in asbestos suits in Madison County filed a brief in Cook County Circuit Court opposing the Lipke rule. The presiding judge there declined to rule on it, leaving the matter in the hands of individual trial court judges.