Illinois Appellate Court Finds That Class-Action Plaintiffs Had a Right of Action to Recover Expenses In Lead Toxicity Case

Mary Lewis, Tashwan Banks and Kathleen O’Sullivan filed a class-action lawsuit on behalf of themselves and others similarly situated against Atlantic Richfield Co., ConAgra Grocery Products Inc., NL Industries Inc. and Sherwin-Williams Co. claiming that these entities engaged in civil conspiracy.

In addition, the plaintiff class consisted of parents or legal guardians who incurred expenses, allegations of liabilities in testing their children.

The children, between Aug. 18, 1995 and Feb. 19, 2008, were between six months and six years old. They lived in zip codes identified by the Illinois Department of Public Health as “high risk” areas for lead toxicity.

Section 6.2(a) of the Illinois Lead Poisoning Prevention Act mandates that any physician “who sees or treat children six years of age or younger shall test those children for lead poisoning when those children reside in an area defined as high risk by the department.” The defendants moved for summary judgment arguing that none of the class-action plaintiffs incurred any expense, obligation or liability for the children’s testing.

The defendants argued, based on the plaintiffs’ depositions, that Lewis and Banks both had their tests paid for by Medicaid and O’Sullivan “was insured by Blue Cross Blue Shield and . . . had no recollection of paying for blood testing of her children.” The argument by defendants was that, since these plaintiffs did not pay out-of-pocket for the testing expenses, the defendants should not be liable for those expenses.

The circuit court granted summary judgment finding that Lewis and Banks were not members of the certified class as it did not incur any expense, obligation or liability for the mandatory testing and that O’Sullivan could not demonstrate that she incurred any either.

Lewis and Banks appealed. They argued that they were liable for the cost of the testing at the time it was incurred, regardless of the fact that Medicaid paid for the test on a future date. Lewis and Banks argued that the expense and liability was incurred even though they did not pay for the testing. Lewis and Banks also claimed the “collateral source rule” meant that the fact that Medicaid paid the cost of the testing did not diminish their “right to recovery for the reasonable value of the children’s lead toxicity testing.”

The appeals panel agreed that neither Lewis nor Banks had any obligation to reimburse the state for the payments Medicaid made on their behalf but found that this does not “insulate them from any obligation to pay for the testing service.”

The appellate court emphasized that the Family Expense Act explicitly makes parents liable for the expenses of their children, and that the parents’ right of action to recover medical expenses is not affected by whether an insurance company paid those expenses. The appellate court found that Medicaid, like a private insurer, does not eliminate the parents’ right of action.

The appellate court emphasized that the importance of the collateral source rule is that a tortfeasor should not benefit from the fact that a third party paid to compensate the injuries the tortfeasor has caused. The appellate court stated that this was equally true in cases involving economic loss and personal injury, concluding that Lewis and Banks qualified as members for the certified class. Accordingly, the appellate court reversed and remanded the case sending it back to the trial court for further disposition.

Mary Lewis, Tashwan Banks and Kathleen O’Sullivan v. Lead Industries Association Inc., Atlantic Richfield Co., et al., 2018 IL App (1^st) 172894 (Sept. 7, 2018).

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