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Kilbride up for retention in November; Voting record stands out with many plaintiff-friendly lone dissents

Madison County Record

Wednesday, July 29, 2020  |  Article  |  By Steve Korris

Candidates--Judicial (27b)

SPRINGFIELD – This fall, Illinois voters will be presented with an opportunity to force one of its Supreme Court justices to answer to voters for some of his most consequential decisions through the years – including a ruling that allowed embattled Illinois House Speaker Michael Madigan to perpetuate his legacy of control over Illinois politics.

In November, voters in the Illinois Third Judicial District will vote on whether to allow state Supreme Court Justice Thomas Kilbride to retain his seat on the court, or force him to run for reelection. The judicial district covers a swath of 21 counties running roughly west from suburban Will and Kankakee counties through LaSalle County and Peoria County to the Quad Cities. It includes the cities of Joliet, Peoria, Kankakee, Moline, Rock Island and Galesburg.

Kilbride has been on the court since 2000, after 20 years of work as an attorney in Rock Island. He served as chief justice on the court in 2010, the same year voters provided the necessary 60 percent to retain him for another 10-year term on the court.

He will need 60 percent again this fall to earn 10 more years.

In his two decades on the state high court, Kilbride has authored a number of consequential rulings. Few, however, have equaled the weight of a decision Kilbride authored in 2016. 

In the so-called Independent Maps decision, Kilbride sided with three other state Supreme Court justices from Chicago in upholding the power of Michael Madigan and state Democrats to control the process of drawing the map from which Illinois voters choose the representatives who, in turn, have voted repeatedly to reinstall Madigan and his supporters into high positions of power in Springfield.

The decision blocked voters from having even the chance to vote on the “Independent Maps” initiative. If approved by voters, the proposed constitutional amendment would have put an end to gerrymandered state legislative districts which critics say make it all but politically impossible to up-end Democratic control of the state legislature.

Organizers of the amendment initiative had planned to establish a redistricting commission under the state’s Auditor General, with citizens applying for membership.

Kilbride found the proposed constitutional amendment unconstitutional, writing that it would assign a time consuming and resource intensive task to the Auditor General. He further found that a mandate for the Auditor General to evaluate ethical conduct and partisan leanings of each applicant would likely require considerable effort, time and expense, and would fall outside the constitutional duties of that office.

Democratic Justices Thomas Freeman, Anne Burke and Mary Jane Theis, all of Chicago, concurred.

Three Republican members of the court dissented. In his dissent, Justice Robert Thomas wrote: “The Illinois Constitution is meant to prevent tyranny, not to enshrine it.” Justices Lloyd Karmeier and Rita B. Garman joined with Thomas in the dissent.

Plaintiff-friendly rulings through the years

After 20 years on the bench during a time when the Illinois Supreme Court has significantly curtailed the reach of the trial bar, Kilbride’s record stands out with many lone dissents that cling to the Court's former tradition of plaintiff friendly rulings.

His dissents show he would restore class actions to their bonanza days, indulge forum shopping, and expand asbestos litigation.

Just last month, Kilbride and Justice P. Scott Neville – a Democrat who is also running this November in for the Freeman vacancy in Cook County - reluctantly concurred in a 7-0 ruling that plaintiffs from other states couldn’t join mass action suits against Bayer in Madison County.

Bayer, maker of the contraceptive device Essure, argued that non-Illinoisans were precluded from suing in Madison County based on the landmark U.S. Supreme Court ruling in Bristol Myers Squibb in 2017.

Kilbride and Neville conceded that the U.S. Supreme Court eliminated the practice, but they agreed with a dissent of Justice Sandra Sotomayor.

“In my opinion, there is nothing fundamentally unfair or inefficient about allowing an Illinois court that has jurisdiction over an Illinois resident’s claims to adjudicate the largely identical claims of a nonresident plaintiff,” Kilbride wrote.

Last year, Kilbride dissented alone when the Court threw out a consumer fraud suit under the voluntary payment doctrine. He found the doctrine incompatible with consumer fraud law and wrote that more than 60 percent of common law countries have abolished it.

In another 2019 decision, he and Justice Neville dissented from an opinion allowing Wisconsin Central Railroad to file a counter claim against an employee.

Kilbride wrote that Wisconsin Central sought more than $1 million in damages to two trains and tracks and reimbursement for environmental cleanup.

“Those damages will almost certainly eliminate any recovery by plaintiffs for their personal injuries,” he wrote.

Also last year, in a suit from Richland County, the Court dismissed conspiracy claims against asbestos defendants Owens-Illinois and Pneumo Abex.

Kilbride dissented alone, relying on a theory that revolves around Metropolitan Life Insurance and reaches back about 80 years.

He wrote that a reasonable person could conclude from a vast collection of evidence that defendants conspired with others to suppress information: Whether and when Owens-Illinois withdrew from the conspiracy presented a question of material fact, and evidence could establish a conspiracy continuing through the time of plaintiff’s initial asbestos exposure.

In 2018, he dissented alone from an opinion relieving subcontractors of liability for defects in new homes.

“The purchaser of a new home relies not only on the competence and integrity of the builder vendor but also on the competence of the subcontractors,” Kilbride wrote.

The Court ruled for Union Pacific in 2017, and Kilbride specially concurred to propose jury instructions that would lower the threshold for liability.

He recommended an instruction that, “plaintiff may recover if the railroad’s negligence played any part, even the slightest, in bringing about the injury.”

In another decision in 2017, he dissented alone from an opinion clearing the Chicago Park District of liability for punitive damages in an accident on a sidewalk.

In 2016, Kilbride dissented alone from an opinion clearing Union Pacific of liability for an accident that severed the legs of a contractor on a bridge removal project.

He wrote that the critical inquiry was whether the railroad retained sufficient control over the contractor.

In 2015, he and Justice Freeman (who passed away in March) dissented from an opinion barring a former employee’s asbestos exposure suit against Ferro Engineering. The majority found that exclusive remedy lay in workers’ compensation law and occupational disease law.

Also in 2015, for a second time the $10.1 billion “light cigarettes” case out of Madison County against Philip Morris came before the court and five Justices knocked it down. Freeman and Kilbride dissented a second time.

The majority found federal law preempted state law because the Federal Trade Commission authorized light and low tar labels.

In dissent, Kilbride wrote that the FTC never authorized the descriptors at issue.

He wrote that the majority asserted that staff interpretation might be a sufficient basis for a finding of specific authorization and formal rule making.

“Opening the door to informal policy advice could lead to absurd results,” he wrote.

In 2013, Kilbride dissented alone from immunity for an emergency crew, rejecting a plaintiff’s claim for workers’ compensation from injuries in an accident on the way to a job.

In 2012, the Court transferred an asbestos exposure suit against Illinois Central Railroad from St. Clair County to Mississippi.

Kilbride dissented alone and wrote, “The defendant has train operations in Illinois and maintains a corporate presence in Illinois.”

He dissented alone from an opinion clearing Indiana Harbor Belt Railroad of liability in a child’s death, writing that the railroad knew children regularly and repeatedly trespassed and attempted to board moving trains, or climb over and through them.

He dissented alone from an opinion setting a statute of limitations in a car crash at two years, arguing for three years under Wisconsin law.

He dissented alone on punitive damages where jurors awarded $1.75 mllion, a judge awarded $650,000, and the Supreme Court awarded $65,000.

He questioned the deterrent value of the award.

In a wrongful death suit from St. Clair County, he dissented alone from an opinion finding Keeley Construction didn’t spoil evidence by disposing of a bridge beam.

“This court has never construed the plaintiffs’ burden in such an unjust and unyielding manner, and it is particularly inappropriate under the unique factual circumstances of this case,” he wrote.

In another suit over ice, he and Freeman dissented from a finding of immunity for the Chicago Park District.

“The mounds of snow and ice would not have existed without the negligent snow removal activity,” he wrote.

In 2011, when the Court allowed a class action defendant to “pick off” a plaintiff with cash, Kilbride concurred but proposed reform.

He wrote that the U.S. Supreme Court, the U.S. Seventh Circuit, and an Illinois appellate court have criticized pickoffs.

He and Justice Mary Jane Theis dissented from an opinion finding the Sierra Club lacked standing to sue over disposal of furnace dust in Peoria.

In 2010, he dissented alone from an opinion reducing a $1 million award of punitive damages to $86,100.

He wrote that the nature and enormity of the wrong and the liability of the defendant were beyond question.

He joined Freeman in dissent when the Court affirmed First District appellate judges in reversing a verdict against Chicago Transit Authority.

“Certainly it is not unduly burdensome for a conductor to warn passengers as they alight from a train to watch for ice on the platform,” Freeman wrote.

In December 2009, he partially dissented from an opinion granting summary judgment to Bayer on a consumer fraud class action in St. Clair County.

He found judgment premature, writing that it deprived the parties of the opportunity to develop the issues.

On April 16, 2009, the Court erased a $2,368,000 jury verdict in a wrongful death suit against mesothelioma defendant Weil-McLain in Vermilion County.

A judge reduced the award by about half as a setoff for amounts other defendants paid prior to trial.

Five of six Justices on the case found the judge should have allowed evidence of exposure to products of other companies.

Kilbride, dissenting alone, agreed that the judge committed an error but wrote that the error was harmless.

He wrote that both parties offered strong evidence on exposure to types and amounts of asbestos fibers from a variety of sources, and that the majority removed from the jury the determination of whether a defendant’s conduct is a proximate cause of injury.

In 2008, Kilbride and another Justice dissented from an opinion that immunized a Chicago ambulance crew from a wrongful death suit.

He joined an opinion that relieved a coach of blame for a sports collision, but he apparently didn’t like it. In special concurrence he wrote that the pertinent question was whether a coach’s action was totally outside the range for a certain age and experience level.

“We cannot legitimately ignore younger athletes’ greater physical vulnerability or their limited autonomy from their coaches and sporting organizations in assessing the propriety of their conduct toward their young athletes,” he wrote.

He dissented alone from an opinion that extended an employer’s immunity from civil suit under workers’ compensation law to a joint venture.

In 2007, Freeman and Kilbride dissented when a majority decided not to reopen the $10.1 billion Philip Morris case.

“The court’s action today is entirely predictable because it quickly and quietly closes the book on a case that the majority of this court, I am sure, would rather forget,” Freeman wrote.

In 2006, he dissented alone when the Court enforced an employer’s arbitration clause.

In 2005, the Court reversed judgment in a case where Williamson County jurors and associate judge John Speroni awarded $1.1 billion to holders of State Farm automobile policies.

All six Justices on the case agreed that Illinois consumer law couldn’t apply to transactions in other states.

Four Justices held that Speroni shouldn’t have certified a class at all because individual issues predominated.

Freeman and Kilbride dissented on class certification, arguing that Speroni could certify proper subclasses.

“The class action makes it possible for wrongs which might otherwise go unredessed to be pursued and righted,” Freeman wrote. “If there was a wrong committed here, as the jury found, the trial court agreed, the appellate court confirmed, and I would affirm, State Farm ought to be held accountable therefore to the extent that due process will allow.”

In 2004, he and another Justice dissented from enforcement of a provision in a consumer contract for mandatory binding arbitration of disputes.

Kilbride wrote that the provision effectively cut off the rights of all consumers to any opportunity for judicial recourse.

In 2003, Kilbride argued in solo dissent that the law on credit service organizations should apply to a home repair business that arranged a loan for a customer.

Also in 2003, the Supreme Court ordered transfer of a suit against Union Pacific Railroad from Madison County to Macoupin County.

Justice Charles Freeman wrote that the majority agreed with the railroad that the plaintiff engaged in forum shopping.

“The record strongly indicates that a trial in Macoupin County would better serve the convenience of the parties and the ends of justice,” Freeman wrote.

He found Macoupin County’s connection and interest strong, and found Madison County residents shouldn’t be burdened with jury duty.

Kilbride dissented alone, writing that Madison County had an interest in litigation involving a corporation that operates facilities within its borders.

He wrote that just as some plaintiffs choose a forum for a perceived advantage, some defendants move for transfer “because they believe that an alternative forum would be more friendly to their interests.”

In 2002, he and another Justice dissented from a ruling that neither the maker nor the owner of a trampoline had a duty to warn the plaintiff of a risk of injury.

“It could be determined that the property owner should not have permitted the unsupervised use of the trampoline,” Kilbride wrote.

He dissented alone from a decision awarding one percent of damages where jurors assigned 99 percent of blame to a third party employer.

He wrote that the defendant could recoup 99 percent from the employer.

He and another Justice dissented from a ruling that a judge correctly granted summary judgment against a doctor and a clinic.

“The procedure used here is tantamount to blindfolding the opponent and asking the opponent to shoot at a moving target,” he wrote.

In Kilbride’s first month on the Court in 2001, he dissented in favor of a plaintiff.

Four Justices set the statute of limitations in a medical malpractice suit at a year, while Kilbride joined two dissenters who would have set it at two years.

Later that year he dissented alone from a decision against a plaintiff who claimed a clinic and an insurer improperly released her medical records.