Imminent Illinois Supreme Court Decision to Weigh Retroactive
Application and Due Process Violation on 2019 Amendment to
Occupational Disease Act

Written by: Justin A. Borawksi, Baker Sterchi Cowden & Rice, LLP, Chicago

Everyone, regardless of legal training, understands the concept of the “window of opportunity” closing. In business,
we see it when a company needs to take advantage of market conditions before they change. In sports, teams seek to win
championships while their star players are on the roster and healthy. The concept of a limited time window to take action
is borne out of the age-old maxim that “nothing lasts forever.”
In legal terms, of course, practitioners know that any plaintiff has a similarly limited window of opportunity to make
claims or file a lawsuit due to statutory time limits, commonly known as a statute of limitations or a statute of repose.
These limitations on when someone can make a claim for injury or damages are an important due process bedrock of
legal principle, particularly when it comes to legal action against Illinois businesses who need the finality and certainty
those limitations provide when planning and building for the future.
In Illinois, the past decade has seen a drastic shift in how this concept is applied to Illinois employers’ rights in
defending against claims by former employees who allege to have developed an occupational disease through exposure
to certain hazardous materials in the course of their employment, decades after they stopped working for the employer.
Since 2015, Illinois has seen a tug-of-war over this issue, with the Illinois Supreme Court acting first by protecting
employers’ rights by enforcing time limitations. In 2019, Governor J.B. Pritzker and the Illinois legislature reversed that
progress by codifying an amendment to Illinois’ Occupational Disease Act (ODA). We then fast-forward to March 2024,
when the Court of Appeals for the Seventh Circuit asked the Illinois Supreme Court to clarify certain aspects of the 2019
Amendment and speak to the due process implications of retroactive application of the Amendment to Illinois employers.
The Illinois Supreme Court’s pending decision will surely be one of the most important decisions in toxic tort litigation
in recent memory as to the future of Illinois employer-defendants’ potential litigation liability.

Background of Illinois’ Occupational Disease Act

Illinois enacted its first iteration of a workers’ occupational diseases act in 1936, providing workers remedies and
protections from exposure to hazardous materials in the course of employment. The modern iteration of the ODA is
codified under 820 ILCS 310/, et. seq., and has had many minor changes over the years. The ODA references and is
structured similarly to the Illinois Workers’ Compensation Act. One key distinction under the ODA is that the worker
must timely file a claim for benefits before the Illinois Workers’ Compensation Commission (IWCC) in order to preserve
the right to recover. In most circumstances, the ODA permits claims arising within two years of the last exposure to the
hazards allegedly causing the work-related disease, with the outside filing deadline with the IWCC as the later date
between three years after being disabled or two years from the last payment of compensation. Those involved with toxic
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tort litigation are familiar with Section 1(f) of the ODA, which provides exceptions to this general rule for exposures
pertaining to radiological materials and asbestos.
Until recently, the ODA was the exclusive remedy for workers to recover against their employers for diseases or
injuries allegedly caused by industrial exposures in the workplace. What is commonly referred to as the “exclusive
remedy provision” barred employees from filing lawsuits for such claims against their employers in civil court, restricting
them to the IWCC’s jurisdiction. Prior to 2019, the only exceptions to the exclusive remedy provision were if the injury
was: 1) not accidental; 2) did not arise from the worker’s employment; 3) did not occur within the course of employment;
and/or 4) was not compensable under the ODA.

Folta’s Protection for Employers under the Occupational Disease Act

In 2015, the Illinois Supreme Court recognized the importance of Illinois employers’ rights to a period of repose and
finality in long extinguished claims in Folta v. Ferro Engineering, Inc., 2015 IL 118070 (2015). The Court provided
bright line rules for application of the exclusive remedy provision of the ODA, as well as a similar exclusive remedy
provision in the Workers Compensation Act (WCA). See 820 ILCS 305/5(a), 11. Folta dealt with James Folta, the
plaintiff’s decedent, who was allegedly exposed to asbestos in the course of his employment with Ferro Engineering in
the late 1960s and was then diagnosed with mesothelioma over forty years later. Folta filed suit for his injuries against
Ferro, among other defendants, alleging his disease was caused by exposure to asbestos in the course of his employment
at Ferro.
At the trial court level, Ferro moved to dismiss Folta’s complaint under 735 ILCS 5/2-619, on grounds that the claims
against it were barred by the above referenced exclusive remedy provisions of both the WCA and the ODA. The plaintiff
claimed that the exclusive remedy provisions did not bar his civil suit against Ferro, as his potential workers’
compensation claim was barred by the 25-year limitations provision under section 6(c) of the ODA; thus, his
mesothelioma was not “compensable” under the ODA, meeting one of the exceptions to the ODA’s exclusive remedy
provision. The circuit court agreed with Ferro and dismissed the plaintiff’s complaint, noting that the expiration of the
statute of limitations under the WCA and ODA did not mean that the plaintiff’s disease was not “compensable” under
the Acts.
The Illinois Appellate Court First District disagreed, reversing the circuit court and siding with the plaintiff, finding
that his injury was not “compensable” because of the nature of the injury and not manifesting until after the expiration
of the limitations period. The court held that the exception to the exclusive remedy provisions under both Acts was met,
and the plaintiff was permitted to maintain a direct action in civil court against Ferro.
The Illinois Supreme Court, however, reversed the First District. The court began with analysis of the purpose behind
creation of the Acts, specifically that the Illinois legislature, through the Acts, had created a new system for recovery by
employees from their employers and that the new system was intended to replace common-law rights and liabilities that
existed previously. Folta, 2015 IL 118070, ¶ 11. The court further held that under the new recovery system created by
the Acts, the employee gained the benefit of not having to prove liability against the employer in exchange for statutory
limitations on recovery, and also quoted the plain language of the exclusive remedy provisions. The court also recognized
that the exclusive remedy provisions were key to balancing the quid pro quo between employees’ and employers’ rights.
As to the prior arguments in the lower courts as to whether the plaintiff’s injury was “compensable” under the Acts,
the Illinois Supreme Court held that, based on the allegations of the plaintiff’s complaint viewed under the lens of the
plain language of the Acts as well as prior appellate precedent, the plaintiff’s injury was clearly covered by the Acts. The
court further elaborated, finding that regardless of any limitations as to amounts or types of recovery under the Acts, the
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exclusive remedy provisions required that the plaintiff’s only remedy against Ferro for the workplace injuries at issue
was under the Acts alone.
The court then cited to section 6(c) of the ODA and its 25-year limitation for filing with the IWCC, noting that if the
employee does not file with the IWCC within 25 years of the last exposure to asbestos related to that employer, the
employee’s application shall be barred under the ODA and a similar provision under the WCA. 820 ILCS 305/6(d). The
Illinois Supreme Court held that section 6(c) of the ODA operated as a statute of repose and an absolute bar to a plaintiff’s
right to bring a claim for that injury and related exposure. The court reasoned that section 6(c) begins to run when a
specific event—the exposure—occurs, “regardless of whether an action has accrued or whether any injury has resulted,”
and that the “statute of repose limit is not related to the accrual of any cause of action; the injury need not have occurred,
much less have been discovered.” Folta, 2015 IL 118070, ¶ 32-33. The court also echoed the purpose of the principle of
a “repose period is to terminate the possibility of liability after a defined period of time” and that after the repose period
ends, a plaintiff’s right of action is no longer acknowledged as valid.
In its concluding remarks, the court noted that the plaintiff’s lack of fault in failing to file a claim sooner, due to the
nature of the disease, was not relevant to a statute of repose and acknowledged that the court’s ruling and the outcome to
Folta may be “harsh” given his injury and the current medical knowledge about asbestos exposure disease latency. At
the same time, the court also noted it was the legislature’s role to consider the public policy implications of the statutory
language, while the court was limited to interpretation of the existing acts as written. Id. at 43. As it turned out, four years
later, Illinois’ legislature accepted that invitation and summarily overturned Folta, adding a new exception to the ODA.

Passage of S.B. 1596 a/k/a “Exception 1.1” of the Occupational Disease Act

Passed through both houses of Illinois’ congress in under 90 days, Governor J.B. Pritzker signed Illinois Senate Bill
1596 into law on May 17, 2019, creating a new exception to the exclusive remedy provision of the ODA, 820 ILCS
310/1.1 (Exception 1.1). Under this new exception, the exclusivity provisions in the ODA “do not apply to any injury or
death resulting from an occupational disease as to which the recovery of compensation benefits under this Act would be
precluded due to the operation of any period of repose or repose provision.” In other words, when section 6(c) bars a
claim under the ODA as a statute of repose, the exclusive remedy provisions no longer apply to that employee’s claim,
and the employee has the option to file suit against an employer in civil court. Despite this addition, however, the newly
created exception did not speak to temporal limitation provisions such as those contained in section 1(f) of the ODA, nor
did it address whether Exception 1.1 would apply retroactively and revive claims that were otherwise previously
extinguished by the then-existing 25-year statute of repose. Many worried whether this amendment would allow for
virtually unlimited liability of Illinois employers and raised questions of unintended effects, including worries about
insurance coverage for newly-revived claims. Although many observers and practitioners had raised these questions and
concerns in the wake of S.B. 1596 being codified, it took almost five more years for these questions to be pressed back
to the Illinois Supreme Court in 2024 by the Court of Appeals, Seventh Circuit.

Seventh Circuit Forces Issue Back to Illinois Supreme Court

Earlier this year, on March 6, 2024, the Seventh Circuit was faced with interpretation of the ODA and Exception
1.1’s impact on the other provisions of the ODA. In Martin v. Goodrich Corp., et al., 95 F.4th 475 (7th Cir. 2024), after
finding the newly amended ODA provisions unclear in attempting to address the legal issues before it, the Seventh Circuit
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certified three questions for the Illinois Supreme Court to answer regarding the 2019 amendment before ruling on the
substantive issues in the case. Martin had similar circumstances to Folta, involving an employee exposed to a potentially
hazardous substance (a vinyl chloride based chemical) in the late 1960s seeking to sue his employer after being diagnosed
with the alleged injury more than fifty years after the alleged exposure ended. Martin, 95 F.4th at 480-81.
In Martin, the defendant Goodrich moved to dismiss under exclusivity provisions of the ODA, arguing that section
1(f) was not a statute of repose, that section 6(c) did not bar the plaintiff’s claim, and that thus Exception 1.1 did not
apply. Id. at 481. The district court denied Goodrich’s motion but certified two legal questions to the Seventh Circuit. Id.
The first question was whether 820 ILCS 310/1(f) is a statute of repose for purposes of Exception 1.1. Id. The second
question was whether applying Exception 1.1 to allow plaintiff’s civil case to proceed would violate Illinois’
constitutional due process. Id.
The Seventh Circuit noted that the Illinois Supreme Court had previously referred to section 1(f) as a “temporal
limitation” but had never mentioned it as a statute of repose. Id. at 482. In addition to the due process issues related to
reviving time-barred claims through subsequent legislative action, the court also found that the 2019 amendment was
unclear as to whether Exception 1.1 was intended to apply retroactively to revive those claims at all. Martin, 95 F.4th
at 482-83. On that issue, the Seventh Circuit issued a third question to the Illinois Supreme Court, asking the Court to
define the temporal reach of Exception 1.1, either by its own terms or through Section 4 of the Illinois Statute on
Statutes (5 ILCS 70/4). Id. at 483. Following these certified questions, on March 21, 2024, the Illinois Supreme Court
announced that it would answer the certified questions of law from Martin.

Awaiting the Illinois Supreme Court Decision

At the time of this article, the Illinois Supreme Court has not issued its opinion answering the three questions posed
to it by the Seventh Circuit and providing a definitive answer as to the constitutionality of retroactive application of
Exception 1.1 to section 1(f), if in fact it even applies. In addition to Goodrich’s brief, at least two amicus submissions
have been presented to the court, including one from the Illinois Defense Counsel. Specifically, the IDC amicus brief notes
that Exception 1.1 cannot be read to include section 1(f) as a period of repose, as that would allow manipulation of the
framework by plaintiffs to avoid the exclusivity of the ODA. Such an interpretation would permit plaintiffs to ignore ODA
timing requirements and then file in civil court under Exception 1.1, thereby gutting the foundational notion of having
balance between employers’ and employees’ rights and duties. The IDC brief also raises the specter of the due process
violation that would result by retroactively reviving extinguished claims under the ODA and highlights how Exception 1.1
violates the Special Legislation provision, prohibiting the legislature from conferring special benefits on one group to the
exclusion of another. Exception 1.1 provides different rules and privileges for employees depending on whether the
employee’s disability occurs within the proscribed two-year time frame or outside of it. The Chamber of Commerce of the
United States of America and the Illinois Chamber of Commerce also filed an amicus curiae brief supporting Goodrich’s
position, raising the same constitutional and legal issues and the potential impact to Illinois businesses large and small.

Conclusion

Time will tell how the court will reconcile the long history of precedent noting that revival of extinguished claims
by subsequent litigation offends basic due process rights of the defendants, compared to Exception 1.1, which if read as
the plaintiffs’ bar urges, would revive countless claims that were extinguished 40 or 50 years ago when the statute of
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repose expired. Will the court continue to allow Illinois employees to sue employers for claims compensable under the
ODA that were previously extinguished by section 6(c) of the ODA and confirmed by the Folta court? Or instead, will
the court return the balance between employers’ and employees’ rights and duties that was the bargained-for basis of the
ODA itself promised in the Folta decision? Without question, the answer will be one of the most impactful legal opinions
in toxic tort litigation in the past decade, whether it be in asbestos exposure claims, PFAS, or countless other hazardous
substance exposure allegations. The ideal outcome will be one where Illinois’ highest court views and upholds the
importance of providing Illinois businesses with the legal certainty that once a plaintiff’s “window of opportunity” has
closed, it cannot be opened again decades later.

About the Author

Justin A. Borawski is a senior attorney with Baker Sterchi Cowden & Rice LLC in Belleville and Chicago. Mr. Borawski
has been in private practice since 2006, with his practice concentrated on the defense of personal injury, products liability,
mass toxic tort and employer practices liability claims. He has extensive trial experience, trying over 50 cases to
successful jury verdict in Illinois in Boone, Cook, DuPage, Lake, Kane, Madison, McHenry, Will, and Winnebago
Counties. Mr. Borawski has pursued and defended over one thousand personal injury, property damage, employer
practice liability, premises liability and products liability cases during his career and currently manages complex litigation
in Cook, Macon, Madison, McLean, Morgan and St. Clair counties, as well as in federal court in the Northern District of
Illinois. He earned his J.D. from University of Illinois Chicago School of Law and his B.S. from Augustana College. He
currently serves as a member of the Toxic Tort Law Committee for the IDC.

About the IDC

The Illinois Defense Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion
their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil
litigation. For more information on the IDC, visit us on the web at www.IDC.law or contact us at PO Box 588, Rochester,
IL 62563-0588, 217-498-2649, 800-232-0169, admin@IDC.law.