The plaintiff filed an action for negligence in Illinois state court, alleging she contracted mesothelioma through “take home” exposure from her son, who used asbestos friction paper while working as a mechanic. The defendants removed to federal court based on diversity. Defendant MW Custom Papers LLC, as successor-in-interest to Mead Corporation, filed a 12(b)(6) motion to dismiss, arguing it did not owe her a duty. The court granted the motion.
First, MW argued the plaintiff did not allege sufficient facts as to foreseeability. The court stated the Illinois standard: “…every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.” This duty is limited by four considerations: (1) reasonable foreseeability of the injury; (2) likelihood of injury; (3) magnitude of burden in guarding against injury; and (4) consequences of placing that burden on defendant. The court found that the facts alleged by the plaintiff in this case were similar to those in prior Illinois case law which found that the complaint was inadequate. However, the federal court stated: “It is undisputed that ‘Illinois is a fact-pleading jurisdiction.’…Yet federal court—to which Defendants voluntarily removed this case—is not. As noted earlier, we require only that the complaint include enough facts so that the right to relief is more than speculative and so that the defendant can prepare a defense.” Here, the complaint was sufficient under notice pleading standards to establish that the plaintiff’s injury was reasonably foreseeable.
The court then focused on factors three and four, which the plaintiff did not address in her opposition. MW argued the burden of protecting family members from secondary exposure was substantial, as neither the plaintiff nor her son were even employees of MW. The court narrowed the issue to the following: Does (or should) Illinois recognize a duty running to family members in take-home asbestos cases? Both Illinois and other state courts were split on this issue. Since there were no precedents or other authorities available to convince the court how Illinois would rule on this question, the court followed the Seventh Circuit mandate: “[w]hen we are faced with two opposing and equally plausible interpretations of state law, we generally choose the narrower interpretation which restricts liability, rather … than the more expansive interpretation which creates substantially more liability.” The court concluded, as a matter of law, that MW did not owe a duty to the plaintiff, in light of the magnitude of the burden in protecting the plaintiff and the ramifications of imposing that burden on MW.