Companies warn Illinois will be ‘toxic tort’ capital if bill is signed, but lawyers call it ‘fundamental fairness’

When Illinois House and Senate Democrats approve a measure unanimously, there’s usually a good chance Gov. JB Pritzker will sign it.

But business groups are crossing their fingers that controversial “toxic tort” Bill 328 is an outlier.

The legislation would allow anyone harmed by exposure to a toxic substance anywhere in the U.S. to file a lawsuit in Illinois against the company that’s responsible, provided it’s registered with the state.

“This scares away companies from wanting to come here or even establish a business office or sales office because our court system is far more generous in terms of jackpot justice,” Illinois Manufacturers' Association CEO Mark Denzler said.

Illinois Trial Lawyers Association President Timothy Cavanagh disagreed. “It’s a limited bill that applies in limited circumstances. And it’s based on fundamental fairness,” he said.

Meanwhile, Republican lawmakers infuriated by what they call a “gut and dump” that brought new content to the bill at the last minute, are suing to nullify it, saying Democrats violated voting rules.

Asked what the Democratic governor’s intent is, press secretary Alex Gough said, “the legislation is under review.”

Cavanagh said the bill is “limited to illness or injury from toxic substances defined by the Illinois Uniform Hazardous Substances Act.” Also, to file, “you have to have a company that makes money in Illinois, and either their principal place of business is here or they’re registered to do business here.”

He gave the example of someone who repairs vehicles in Illinois and other Midwestern states and is exposed to a product with asbestos, resulting in mesothelioma.

“The corporation will argue you can’t just sue in Illinois,” Cavanagh said. “You got exposed in Iowa, so you have to file a suit in Iowa. And you also got exposed in Missouri and in Michigan, so this poor person who has mesothelioma and has months to live has to file lawsuits in multiple jurisdictions.”

Republican legislators opposed the policy on its merits and because the changes to torts were introduced as an amendment to a “shell bill” on May 30, the day before the session ended.

“This was the right bill to address our objections to how the Democrats get around the Illinois Constitution’s requirements for three readings in each chamber,” said Senate Republican Leader John Curran, a Downers Grove attorney.

Opponents argue it will encourage “venue shopping” and bring a tsunami of lawsuits to Illinois because it’s viewed as a plaintiff-friendly state. Another objection is the broad definition of toxic exposure that includes ingestion, inhalation or “absorption through any body surface.”

“Allowing out-of-state injuries to be brought into Illinois courts is bad for Illinois taxpayers because it will clog the Illinois court system and reduce investment in Illinois by out-of-state businesses,” Curran said.

State Rep. Jay Hoffman, who sponsored the amendment, contends it’s “a critical measure to ensure that corporations doing business in Illinois are held accountable in our courts when their actions harm our workers or consumers through the use of hazardous substances.

“Illinois has long served as a leader in protecting our citizens’ rights, and this bill continues that commitment by closing a dangerous loophole that currently allows out-of-state corporations to evade responsibility for the harm they cause,” the Swansea Democrat said.

Meanwhile, business leaders told the Daily Herald Editorial Board the change will reverse economic expansion under Pritzker.

“We’ve made all this progress in six years, and you’re putting all this progress at risk with this bill,” Chicagoland Chamber of Commerce CEO Jack Lavin said. “You’re giving fuel to our competitors, you’re giving them weapons to go against Illinois and say why companies shouldn’t go to Illinois.”

“Make no mistake, this will impact economic development. It will impact jobs. It will impact economic stability,” he predicted.

Cavanagh noted a similar law exists in Pennsylvania. It was challenged and upheld by the U.S. Supreme Court in June 2023, which was a trigger for the Illinois legislation.

Corporate drain warnings are “scaremongering,” he said. “No businesses are going to choose to not operate their businesses here where they make millions and billions of dollars. It’s nonsense.”

Cavanagh also disagreed that the measure would overwhelm courts. “The scope of this statute is very limited.”