By Anne McLeod on April 13, 2018

The Circuit court in Cook County, Illinois has recently clarified one of the limitations on which it applies personal jurisdiction and venue protections to Defendants in asbestos cases. In John C. Clark v. A.W. Chesterton Company, et al., the Court performed personal jurisdictional analyses of general and specific jurisdiction, and also analyzed Defendant’s Motion to Dismiss for forum non conveniens. While the Defendant in this case won the argument on general jurisdiction, it lost the arguments on specific jurisdiction and forum non conveniens. The court reasoned that Plaintiff’s “take-home” exposure to asbestos brought both the Defendant’s actions and the alleged resulting injury into Illinois.

The Plaintiff in Clark alleged exposure to asbestos on the premises of Great River Energy’s (“GRE”) factory in North Dakota, while working as a contractor.  Significantly, the Plaintiff also alleged “take-home” exposure in his pleadings and argument, although the Court’s opinion provided no underlying facts regarding this claim, and there is no spouse or second Plaintiff named in the case. The contracting company for which Plaintiff worked was an Illinois company – United Conveyor Corporation (“UCC”), who had contracted with GRE to do the work on GRE’s premises.  Plaintiff lived in Cook County, Illinois.  Plaintiff alleged that the fact that GRE had contracted with an Illinois corporation was enough to subject GRE to personal jurisdiction.  However, the Court acknowledged Defendant’s argument that the contract alone was not enough to show “minimum contacts” between GRE and Illinois, and that, under Illinois law, other factors must be considered.

In reviewing whether there was general jurisdiction over GRE, the Court applied the requirements set forth by the U.S. Supreme Court in Daimler A.G. v. Bauman, 134 S.Ct. 746 (2014) and adopted in Illinois by Aspen Am. Ins. Co. v. Interstate Warehousing, Inc., 2017 IL 121281. The Circuit Court thus found that Defendant GRE was not “at home” in Illinois because it was not incorporated there, did not have a principal place of business there, and did not “meet the example of a rare exception.”  As a result, the Court did not have general jurisdiction over Defendant GRE.

The Circuit Court next reviewed whether there was specific jurisdiction over GRE, and looked to the Illinois Supreme Court case of Russell v. SNFA, 2013 IL 113909 for the proposition that “[a]lthough the United States Supreme Court has not clarified what is meant by ‘arising out of’ or ‘relating to’ in the context of a jurisdiction question, Illinois has determined that the applicable standard is lenient or flexible.” [1]

The Cook County Circuit Court also cited to Bolger v. Nautica Int’l, Inc., 369 Ill. App. 3d 947 (2d Dist. 2007) to explain the factors to consider in determining whether a Defendant has “purposefully availed” itself of the benefits of the forum state, beyond simply contracting with a business located there: (1) who initiated the transaction, (2) where the contract was formed, and (3) where the contract was performed.   Significantly, the appellate court in Bolger began its specific jurisdiction analysis by stating “….The focus is on the defendant’s activities within the forum State, not on those of the plaintiff,” before articulating the three factors to consider when a contract forms the basis for the jurisdictional dispute.

However, without going through an analysis of specific application of these Bolger factors to the facts at issue in Clark, the Circuit Court determined that “GRE (through its predecessor) and this Illinois resident’s Illinois employer contracted in and agreed to be bound by Illinois law and courts.  This choice of forum was explicit and bargained for by experienced and sophisticated business parties.  Moreover, plaintiff’s proposed injury directly arose from Defendant’s own contacts with Illinois through alleged exposure to Defendant’s asbestos both at its facility [which was in North Dakota] and again in Chicago when he brought the asbestos fibers home” (emphasis added).  By considering the “take-home” exposure by Plaintiff in addition to the other named factors, the Circuit Court also concluded that Illinois courts would have “concern for a case where the Defendant allegedly allowed people working on its premises and around asbestos containing products to travel back to Illinois without proper safety precautions in place to disrupt exposures back home, and that a dismissal would result in Plaintiff’s having to ‘commence separate lawsuits in several states where he worked and was exposed’ thus finding that it was also “reasonable to litigate this case in Illinois.”

Having found personal jurisdiction over GRE, the Circuit Court turned to the Defendant’s argument regarding forum non conveniens. Because the Court found that part of the Plaintiff’s injury occurred in Cook County, Illinois (via take-home exposures), the court applied that finding in both the private and public interest factor analyses, and determined that they weighed in favor of keeping the case in Illinois.

The Circuit Court’s extensive consideration of Plaintiff’s alleged take-home exposure in this way is significant to Defendants in several ways.  First “take-home” exposure in asbestos cases takes on new meaning ordinarily reserved for family members who were not working at the jobsite at issue, opening the door for potential liability for additional exposure by the Plaintiff’s own actions once he is at home.  Second, from a jurisdictional standpoint, a finding that take-home exposure from a Defendant’s premises in another state constitutes a Defendant’s relationship to that forum State will limit a Defendant’s ability (in asbestos exposure claims) to argue against specific jurisdiction in any state in which a Plaintiff lives.  The consideration of Plaintiff’s exposure once he gets home also arguably shifts the focus from the Defendant’s activities (as stated by the Illinois appellate court in Bolger) to those of the Plaintiff.

[1] The Circuit Court made no mention of the U.S. Supreme Court’s decision in Walden v. Fiore, 134 S.Ct. 1115 (2014) (decided shortly after Daimler), wherein the relationship between the defendant and the forum state was analyzed for minimum contacts under a specific jurisdiction inquiry.  The Court in Walden identified two necessary factors: 1) “the relationship must arise out of contacts that the ‘defendant himself’ creates with the forum State” and 2) “our ‘minimum contacts’ analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there” (emphasis in original). Id.