Legal Loophole in Illinois Prevents Justice for Mesothelioma Victims


The Illinois Supreme Court dismissed the case of a widow whose husband, James Folta, died of mesothelioma, the cancer caused exclusively by asbestos. Because Folta was diagnosed with mesothelioma over 45 years after being subjected to asbestos, the court ruled that there was no way for the family to collect damages from the employer responsible for the exposure. Folta was caught – unfortunately – in a legal loophole: one part of the law said employees could not file a civil suit against their employers for workplace-related illnesses and instead had to file for workers compensation, and another that said workers compensation must be filed within 25 years of the end of employment.

James Folta worked as a shipping clerk and product tester for Ferro Engineering from 1966 to 1970. During his employment, he handled products containing asbestos, and in May 2011, he was diagnosed with mesothelioma. The next month, he filed a civil complaint against Ferro Engineering, accusing the company of negligence.

However, this situation put him in a catch-22. Ferro Engineering moved to dismiss his case by arguing Mr. Folta could only be compensated by filing for workers compensation, and had no legal right to file a civil suit. This is common in many states where workers compensation is meant to take the place of legal battles. But in Illinois, workers compensation claims must be filed within 25 years, and Mr. Folta's mesothelioma was not diagnosed until 45 years later.

Ferro Engineering knew that it was impossible for Mr. Folta to collect workers compensation for his mesothelioma, a cancer known for its long latency period of often over 25 years. If Mr. Folta could not file either workers compensation or a civil lawsuit, there was no way he could receive justice against the company responsible for his lethal cancer.

Illinois Supreme Court Enforces Loophole

James Folta died while the litigation was pending, and his wife, Ellen Folta, became the plaintiff in the case. She amended the case to include a wrongful death charge against Ferro Engineering. In her appeal of the circuit court’s dismissal, Ellen Folta argued that the law unfairly disadvantages victims of mesothelioma. According to Business Insurance, her argument was,

“workers who suffer from occupational diseases with short latency periods are eligible to receive compensation benefits, while those workers who suffer from occupational diseases with long latency periods are 'categorically' prohibited from a right to recover compensation benefits.”

What’s devastating in this particular case is that on November 4th, the Illinois Supreme Court sided with the Ferro Engineering in a 4-2 ruling, agreeing that workers compensation was the sole remedy for Mr. Folta's occupational illness. According to the majority opinion,

“The fact that Folta was not at fault for failing to file a claim sooner due to the nature of the disease is not a consideration that is relevant.”

The Illinois Supreme Court understood that there was no way for James Folta to file for workers compensation within 25 years because the long latency period of his mesothelioma, but still ruled that his occupational illness could not be redressed any other way.

Not all the justices agreed with this harsh decision. In his dissenting opinion, Justice Charles E. Freedman wrote that he “strongly” disagreed with the majority ruling. Justice Freedman's dissent reads,

“Under the majority's interpretation of the exclusivity provisions, plaintiff is barred not only from recovering compensation benefits under the acts, but from recovering against his former employer under the common law as well.”

He added that, “the majority's interpretation runs directly counter to the [Illinois workers comp and occupational disease] act’s purpose.”

The Future of Mesothelioma Cases

Justice Freedman is absolutely right. Workers compensation laws serve to protect employees, not take their rights away.

Luckily, the travesty of justice that happened in Illinois is not inevitable elsewhere. In a similar mesothelioma case in Pennsylvania in 2014, the court sided with workers' rights, deciding that employees suffering from long-latency diseases should not be barred from filing civil cases. The Pennsylvania Supreme Court reasoned that if such employees had to follow the time limits on existing workers compensation law, they would never be able to obtain any relief against an employer.

No employee deserves to have their calls for help dismissed. Unfortunately, the law is too often stacked against victims of mesothelioma and their families, allowing them to fall between the cracks. Only the future will tell whether other states will follow the Pennsylvania or Illinois approach and how this will affect future mesothelioma victims elsewhere in America. The tragic injustice that James Folta and his family suffered may happen yet again unless public attention is brought to cases like Folta’s and something is done to curb employer injustice.

Sokolove Law Team

Contributing Authors

The Sokolove Law Content Team is made up of writers, editors, and journalists. We work with case managers and attorneys to keep site information up to date and accurate. Our site has a wealth of resources available for victims of wrongdoing and their families.

Last modified: December 18, 2017