Nuclear Summer: Cook County, Illinois Juries Breaking the Bank in Toxic Tort Claims

Continuing the trends we saw in 2023, this year Cook County, Illinois jurors awarded a pair of “nuclear” verdicts in toxic tort asbestos cases. In April 2024, a Cook County jury awarded $45 million to the estate of Theresa Garcia where the plaintiff alleged that Ms. Garcia developed mesothelioma as a result of exposure to asbestos-tainted talc powder manufactured by Johnson & Johnson (“J&J”) that she used on herself and her children.

Then in late-July 2024, another Cook County jury awarded $24.4 million to the estate of Cipriano Ramirez, where plaintiff alleged that Mr. Ramirez developed mesothelioma after exposure to asbestos-tainted talc powder while he was working as a janitor at an Avon manufacturing facility in Morton Grove, Illinois during the 1980s. The Ramirez verdict included a finding of punitive damages of $1 million against Avon. Following this verdict, Avon Products, Inc. filed for bankruptcy protection.

Both the Garcia case and Ramirez are notable in that each case was filed by plaintiffs’ firms based outside of Cook County, including a prominent Texas-based national plaintiffs’ firm in the case of Garcia. This illustrates how Cook County is increasingly viewed very favorably for plaintiffs even at a nationwide level.

Beyond the stratospheric verdict itself, Garcia is also a cautionary tale after the Cook County trial court ruled against J&J on two post-trial motions.

First, Cook County Judge Patrick Sherlock denied J&J’s Motion for a New Trial. While J&J raised a slew of legal challenges, Judge Sherlock’s ruling on one issue in particular will have a seismic impact across asbestos litigation in Cook County, and potentially throughout Illinois depending on future appellate activity. In responding to one of J&J’s arguments as to how it was prejudiced at trial, Judge Sherlock ruled that a defendant’s corporate representatives cannot testify about issues beyond their personal knowledge and further held that reviewing corporate documents does not create personal knowledge for the corporate representative.

Judge Sherlock first couched his opinion by noting how J&J’s witness was disclosed as an Illinois Supreme Court Rule 213(f)(1) fact witness, not as a Rule 213(f)(3) expert witness. J&J’s witness was Dr. Ed Kuffner, J&J’s chief medical officer and a board-certified physician. J&J’s Rule 213 disclosures did not note that Dr. Kuffner would offer any opinions. At trial, the Court limited Kuffner to testifying to matters which he had personal knowledge about, and matters disclosed in response to Rule 213(f) Interrogatories. J&J not only argued in its post-trial motion that Kuffner’s deposition testimony should have been allowed to be presented at trial under Rule 212 (since he is a doctor) and as a Rule 206(a)(1) deponent, but also further argued that “there is no basis to impose a personal knowledge requirement under corporate representatives.” In disagreeing with this latter assertion, Judge Sherlock cited to a lower court federal case from the Northern District of Illinois, Kraft Foods Global, Inc. v. United Egg Producers, Inc., No. 11-cv-8808, 2023 U.S. Dist. LEXIS 154210 (N.D. Ill. Aug. 31, 2023), however, the passage attributed to that case (“However, a corporate representative may not testify to matters outside his own personal knowledge to the extent that information is hearsay not falling within one of the authorized exceptions.”) is actually the Kraft court quoting Illinois’ Fifth District Appellate Court from Union Pump Co. v. Centrifugal Tech. Inc., 404 F. App'x 899, 907-08 (5th Cir. 2010). While the Kraft court ultimately sided with the proposition that Illinois Supreme Court Rule 602 trumps Federal Rule 30(b)(6) in requiring personal knowledge for providing testimony, the Kraft court seemed to be quite aware that the plaintiff in that case was attempting to destroy the Rule 30(b)(6) scope of testimony, and later in the opinion noted that a corporate representative may acquire personal knowledge while preparing for his deposition or trial testimony by reviewing documents and talking to people with personal knowledge (Kraft at 35 – 37).

Despite that caveat in Kraft, Judge Sherlock did not extend the same reasoning, instead explicitly stated the opposite - that J&J’s corporate witness “cannot simply review documents and testify about what he believes they mean,” and elaborated that “a corporate representative cannot review documents and then attempt to interpret the documents without personal knowledge upon which to base his testimony.” A comparison of the ruling to the Garcia plaintiff’s legal memorandum brief showed that Judge Sherlock’s ruling on this issue cited many passages of the plaintiff’s legal brief in making his ruling. Judge Sherlock’s ruling casts a dark shadow of uncertainty and doubt over what extent, if at all, that a business in Cook County will be allowed to have a company representative speak to the jury to rebut a plaintiff’s claims related to that company’s products or premises.

Then, in mid-November 2024, Judge Sherlock also granted the plaintiff’s motion for award of prejudgment interest. As we discussed last year in analyzing the practical impact Illinois’ enactment and Illinois’ First Appellate District’s ratification of prejudgment interest would have on verdict amounts, the Garcia plaintiff received a significant sum of interest on top of the $45 million verdict, with Judge Sherlock awarding an additional $2,657,835 in prejudgment interest.

J&J has filed a notice of appeal regarding both Judge Sherlock’s denial of its motion for new trial and the order granting prejudgment interest. Hopefully the First District will provide clarity on the issue raised in Kraft and the disparity from that opinion and Judge Sherlock’s ruling, ideally providing a path for current and future corporate representatives for businesses to be able to provide the jury with insight into that business’ history and policies, long after the individuals with first-hand knowledge are unavailable to testify. This is particularly important in toxic tort and asbestos litigation as many claims span back over multiple decades, given the latency period of the alleged disease development. Without that ability to communicate to a jury about a company’s actions and history, businesses may be constrained in their ability to speak in their own defense at trial.