On May 17, 2019, Illinois adopted legislation eliminating the state’s 25-year statute of repose under the Illinois Workers’ Compensation Act for latent diseases. The legislation overturned the prominent Supreme Court decision in Folta v. Ferro Engineering which established clear precedent that an employee’s exclusive remedy lies under either the Illinois Workers’ Compensation or Occupational Diseases Act. Recently, in Patton v. A.W. Chesterton, defendant McNulty Brothers Company (McNulty) attempted to challenge the constitutionality of the 2019 legislation when it moved to dismiss Mr. Patton’s lawsuit arguing his case was barred by the Illinois Workers’ Compensation Act. Mr. Patton allegedly worked as a carpenter at McNulty from 1969 through 1973. Mr. Patton alleged that he regularly worked with asbestos-containing ceiling tiles and around asbestos-containing joint compound while he was employed by McNulty. Mr. Patton was diagnosed with mesothelioma in September of 2019, four months after the amendment of the Illinois Workers’ Compensation Act. Mr. Patton subsequently filed his complaint in the Third Judicial Circuit of Madison County, Illinois on October 15, 2019.

The Defense

On March 25, 2020, McNulty filed a Motion to Dismiss. First, McNulty argued that the Illinois Workers’ Compensation Act and Workers’ Occupational Diseases Act was unconstitutionally amended with the addition of 820 ILCS 305/1.2 and 829 ILCS 310/1.1. Second, McNulty argued the Construction Statute of Repose was unconstitutionally amended with the addition of 735 ILCS 5/13-214(f). McNulty’s reasoning for both arguments rested on the basis that the Illinois General Assembly cannot strip away, or revive time-barred civil claims, and that the expiration of a prescribed statutory period for a cause of action creates a vested right protected by the State’s Constitution. In support of its argument, McNulty cited various cases involving child abuse claims and with an analogous amended statute of limitations. See e.g., Doe v. Diocese of Dallas (involving a civil childhood sexual abuse claim previously time-barred by a two-year statute of limitations but brought pursuant to an amended statute of limitations providing a five-year discovery rule). In Diocese of Dallas, even though the General Assembly clearly intended the five-year discovery rule to apply retroactively, the Illinois Supreme Court held retroactive application unconstitutional, finding that it violated the defendant’s due process rights under the Illinois constitution.

Plaintiff’s Opposition

Plaintiff opposed and argued:

  1. the Illinois Workers’ Compensation Act and Workers’ Occupational Diseases Act, as amended, applied, and expressly allowed Plaintiff to pursue civil action against his employer, McNulty.
  2. the law in effect at the time Plaintiff’s disease manifested applies, not the law in effect at the time of his exposure.
  3. the May 2019 amendments do not violate due process under the Illinois Constitution because employers have no vested rights in the exclusive remedy provisions.
  4. if the legislature can eliminate a remedy in cases already on file without violation of due process, it certainly can eliminate exclusivity and allow for a remedy for claims that have yet to accrue.
  5. that statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute carries the burden of proving the statute is unconstitutional, and McNulty had not done so.

Oral arguments on McNulty’s Motion to Dismiss were heard on June 3, 2020. Plaintiff distinguished the child abuse statute of repose cases cited by McNulty arguing that in those cases the repose period was triggered by the child turning 18. Plaintiff’s main argument was those claims already existed; it was just a matter of how long the person had to bring their child abuse claim. Plaintiff distinguished its case from those cases arguing that by the time Mr. Patton was diagnosed in September 2019, when his claim arose, the statute had been amended, and it was only appropriate to apply the current version of the statute in effect when his claim arose. Plaintiff conceded had Mr. Patton’s claim arose in 2018, the result may be different.


Judge Stephen Stobbs, who presides over the asbestos docket in Madison County, denied McNulty’s motion without reasoning on June 8, 2020, and also denied McNulty’s motion for a Rule 304(a) finding making the decision immediately appealable. It remains to be seen if McNulty will take this matter to trial and then appeal this ruling if it loses at trial. Due to the ongoing COVID-19 pandemic, all trials in Madison County were suspended through the end of 2020.

This decision will leave a lasting impact on premises defendants in asbestos and toxic tort cases. Assuming it is not overturned, the decision seems to indicate that premises defendants in Illinois are now liable for their employee’s asbestos exposures in civil court, and may not rely on the workers’ compensation exclusivity to have their employee submit a claim through the workers’ compensation board.