Candice Martin v. Goodrich Corporation

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2343

CANDICE MARTIN, individually and as

Executrix of the Estate of Rodney Martin, deceased,

Plaintiff-Appellee,

v.

GOODRICH CORPORATION, formerly known as

B.F. GOODRICH COMPANY and

POLYONE CORPORATION, individually and as

Successor-By-Consolidation to the GEON COMPANY,

now known as AVIENT CORPORATION,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 1:21-cv-01323-JES-JEH — James E. Shadid, Judge.

____________________

ARGUED FEBRUARY 14, 2024 — DECIDED MARCH 6, 2024

____________________

Before SCUDDER, ST. EVE, and LEE, Circuit Judges.

ST. EVE, Circuit Judge. In Illinois, workers injured on the job

obtain compensation through an administrative scheme. The

relevant agency holds employers strictly liable for this

2 No. 23-2343

administrative remedy, but keeps the claims out of court.

Much the same arrangement governs diseases contracted on

the job—yet unlike accidents at work, the harm from diseases

may not manifest for years or decades after employment ter-

minates. The state legislature tried to account for this differ-

ence in 2019, but the scope of that fix is uncertain.

This case asks us to resolve that uncertainty. But rather

than risk unsettling Illinois’s intricate compensation appa-

ratus, we defer to the experts and certify three related ques-

tions to the Illinois Supreme Court.

I. Background

Appellate jurisdiction here rests on 28 U.S.C. § 1292(b),

which allows for interlocutory appeals when the district and

appellate courts agree—so long as the appeal meets certain

criteria. The jurisdictional hook requires that the case present

“a controlling question of law,” tricky enough to leave “sub-

stantial ground for difference of opinion,” whose resolution

will “materially advance the ultimate termination of the liti-

gation.” Id. When we take an appeal this way, the district

court identifies for us which “controlling question[s] of law”

the case presents—but our authority extends past answering

those questions. Instead, any “appeal under § 1292(b) brings

up the whole certified order,” Demkovich v. St. Andrew the

Apostle Par., 3 F.4th 968, 974 (7th Cir. 2021), often a ruling on a

motion to dismiss. See, e.g., Ashley W. v. Holcomb, 34 F.4th 588,

591–92 (7th Cir. 2022). That accounts for our authority to “ad-

dress any issue fairly included within the certified order.”

Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).

No. 23-2343 3

This case satisfies the § 1292(b) criteria: resolving the com-

plicated legal issues may well end the case. We start, then,

with the pertinent Illinois law.

A. Legal Background

When Illinois employees contract a disease arising out of

or in the course of their employment, they can seek compen-

sation under the Workers’ Occupational Diseases Act, 820

ILCS 310/1 et seq. (the “ODA”). That law borrows its structure

from the Worker’s Compensation Act, 820 ILCS 305/1 et seq.

“In enacting these statutes, the General Assembly established

a new framework for recovery to replace the common-law

rights and liabilities that previously governed employee inju-

ries.” Folta v. Ferro Eng’g, 43 N.E.3d 108, 112 (Ill. 2015).

At a basic level, the statutes hold an employer “liable to

pay compensation to his own immediate employees” for their

injuries, 305/1(a)(3), and diseases, 310/7. To seek their com-

pensation remedy, workers apply to the Illinois Worker’s

Compensation Commission. In turn, that body awards or de-

nies compensation “upon the facts and circumstances of each

particular case.” Folta, 43 N.E.3d at 118.

The issues here implicate the interplay of four aspects of

the ODA: (1) temporal limitations hampering old claims, (2)

exclusivity provisions channeling claims into the administra-

tive compensation protocols, (3) age-old exceptions to that ex-

clusivity, and (4) a 2019 statute adding a new exception.

1. Temporal Limitations

A worker who contracts a disease on the job must remain

mindful of two deadlines. The first appears at 820 ILCS

310/1(f) (“1(f)”). We discuss this section first because it begins

to run before its companion. Its relevant text follows:

4 No. 23-2343

No compensation shall be payable for or on ac-

count of any occupational disease unless disa-

blement, as herein defined, occurs within two

years after the last day of the last exposure to the

hazards of the disease.

Put in plain language, an employee cannot obtain compensa-

tion unless she becomes disabled within two years of her last

exposure to the hazard.

The second timing provision appears at 820

ILCS 310/6(c) (“6(c)”). This section provides in

relevant part:

In any case, other than injury or death caused

by exposure to radiological materials or equip-

ment or asbestos, unless application for com-

pensation is filed with the Commission within 3

years after the date of the disablement, where

no compensation has been paid, or within 2

years after the date of the last payment of com-

pensation, where any has been paid, whichever

shall be later, the right to file such application

shall be barred.

In other words, an employee generally must apply for com-

pensation within three years of becoming disabled. But if her

employer pays some compensation, she may file her applica-

tion up to two years after the last compensation payment.

These two deadlines work differently. For 1(f), the timing

of claim filing is immaterial. It requires only that the disable-

ment occurs within two years of exposure; the clock starts

with the end of exposure and counts until disablement. Then

there is 6(c), which by contrast does focus on the claim’s

No. 23-2343 5

timing. Starting from the disablement that caps off the 1(f) pe-

riod, the worker typically has three years to apply for com-

pensation consistent with 6(c)’s mandate. Any application af-

ter that date is time-barred.

We pause here to note another distinction between these

provisions. Where 6(c) instructs that untimely claims “shall

be barred,” the sole consequence 1(f) imposes is that “[n]o

compensation shall be payable.” The statutes impose different

ramifications for a missed deadline.

2. Exclusivity Provisions

The ODA contains exclusive remedy provisions that limit

the process for most workers to the statute’s prescribed chan-

nels. Two provisions preclude employees subject to the ODA

from seeking compensation outside of the statutory scheme.

For one, “there is no common law or statutory right to re-

cover compensation or damages from the employer” or re-

lated entities. 820 ILCS 310/5. Pairing that with the statute’s

other dictate, that “the compensation herein provided for

shall be the full, complete and only measure of the liability of

the employer [and those other entities] … in place of any and

all other civil liability whatsoever,” 820 ILCS 310/11, gives a

complete picture of the ODA’s exclusivity provisions. See

Folta, 43 N.E.3d at 112.

Just five years ago, there would have been little more to

say. In 2019, however, the Illinois legislature passed a statute

providing for an exception to these provisions. Today, both

exclusive remedy provisions apply “[e]xcept as provided in

Section 1.1,” the new amendment making clear that the exclu-

sivity provisions are not absolute. We will address this excep-

tion further below.

6 No. 23-2343

3. Historical Exclusivity Exceptions

Even before the legislature narrowed the exclusivity pro-

visions, Illinois courts acknowledged certain limits to them.

See Collier v. Wagner Castings Co., 408 N.E.2d 198, 202 (Ill.

1980). A plaintiff could avoid the exclusivity provisions by

proving any of the following: “(1) that the injury was not ac-

cidental; (2) that the injury did not arise from his or her em-

ployment; (3) that the injury was not received during the

course of employment; or (4) that the injury was not compen-

sable under the Act.” Meerbrey v. Marshall Field & Co., Inc., 564

N.E.2d 1222, 1226 (Ill. 1990).

In Folta, the Illinois Supreme Court addressed the last ex-

ception—the one for injuries “not compensable” under the

ODA. 43 N.E.3d at 113. James Folta was a product tester for

Ferro Engineering, a position that put him in contact with as-

bestos throughout his four-year employment. Id. at 110. He

left the job in 1970. Id. Under 6(c), asbestos exposure works a

little differently from other hazards. Claimants like Folta have

25 years from their last exposure, where others’ claims are

barred 3 years after disablement. Section 6(c) thus barred

Folta’s claim for compensation from 1995 on, since it stemmed

from asbestos exposure. Mr. Folta received his mesothelioma

diagnosis in May 2011, though—long after the 25-year asbes-

tos bar descended. Id. Even so, he sued Ferro Engineering,

and after his death his widow pressed on with the case. Id.

They submitted that because of 6(c)’s limitation, compensa-

tion was not available to Folta. There was never a time when

he both knew of the harm and could seek compensation con-

sistent with 6(c).

The Folta court stressed that 6(c) is a statute of repose. As

such, it effectuates a legislative intent “to provide an absolute

No. 23-2343 7

definitive time period within which all occupational disease

claims arising from asbestos exposure must be brought.” Id.

at 117. Put another way, the statute’s purpose was not to en-

sure Folta’s diligence. Instead, it exalted certainty, aiming “to

extinguish the employer’s liability.” Id. That certainty would

vanish if plaintiffs like Folta could bring their claims in court

after 6(c) barred the ODA’s statutory remedy. Id. at 117.

Further, the caselaw on the “not compensable” exception

had construed it to encompass only those injuries that could

not “categorically fit[] within the purview of the Act.” Id. at

114. Even in cases where 1(f) supplied the temporal bar, the

court reasoned that its “temporal limitation on the availability

of compensation benefits” did not “remove occupational dis-

eases from the purview of the Act.” Id. at 118. Same result: the

exclusivity provisions apply.

All this added up to a loss for Folta. The court was “cog-

nizant of the harsh result” its interpretation had worked. Id.

Its hands were tied, though: any call for a change in the law

was “more appropriately addressed to the legislature.” Id.

4. Exception 1.1

The legislature answered the call four years later, in 2019,

with 820 ILCS 310/1.1, or “Exception 1.1.” That law explains

that 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 re-

pose or repose provision.” 310/1.1.

So when 6(c)—a “statute of repose” and thus a “period of

repose”—bars a claim, see Folta, 43 N.E.3d at 117, the

8 No. 23-2343

exclusivity provisions fall away. It is less clear how 1(f)’s

“temporal limitation” interacts with Exception 1.1. Id.

B. Factual Background

That brings us to this case. Rodney Martin was a lot like

James Folta—in the late 1960s and early 1970s, he worked

with a dangerous material. For Rodney, it was vinyl chloride

monomer (“VCM”), a petroleum-derived chemical essential

to the production of polyvinyl chloride, more familiar as PVC.

VCM is allegedly linked to angiosarcoma of the liver. At all

relevant times, Rodney worked for defendant Goodrich Cor-

poration; he started there in 1966 and retired in 2012. Until

1974, his work entailed exposure to VCM, but after that

Goodrich abated its use of the chemical.

In 2019 (after Exception 1.1 passed) Rodney’s doctors di-

agnosed him with angiosarcoma of the liver. He passed away

in 2020. This suit followed in November 2021.

C. Procedural Background

Rodney’s widow, Candice Martin, sued Goodrich and

joined PolyOne Corporation—a company that had bought

much of Goodrich’s PVC business—as a defendant. Her com-

plaint invoked Exception 1.1 to avoid the exclusivity provi-

sions. Later, PolyOne moved to dismiss for lack of personal

jurisdiction. For its part, Goodrich moved to dismiss under

the exclusivity provisions. It argued 1(f) was not a statute of

repose, and that 6(c) did not bar Martin’s claim—and thus Ex-

ception 1.1 did not apply. In the alternative, it argued that us-

ing Exception 1.1 to revive Martin’s claim would infringe its

due process rights under Illinois’s constitution. The district

court denied these motions and set the case on track for trial.

No. 23-2343 9

Goodrich asked the district court to certify its legal ques-

tions to us under 28 U.S.C. § 1292(b). The court agreed to do

so, finding two questions that implicate “a controlling ques-

tion of law” whose resolution would “materially advance the

ultimate termination of the litigation” and thus fit the bill for

certification. We agreed to take the appeal. The district court’s

order certified two questions:

1. Whether 820 ILCS 310/1(f) is a statute of re-

pose for purposes of § 310/1.1?

2. Whether applying 820 ILCS 310/1.1 to allow

Plaintiff’s civil case to proceed would violate

Illinois’s constitutional substantive due pro-

cess?

II. Analysis

We think the interconnected statutory provisions in the

ODA present three questions. Each gives us pause. Together,

they present a roadmap to handling claims for asbestosis, an-

giosarcoma, and other diseases that manifest only belatedly.

Given the number of cases where this roadmap will chart the

course for courts and litigants—plus Illinois’s policy interests

in its contours—we find each question fit for certification.

We reach this conclusion by looking to Illinois’s factors for

selecting certification-worthy questions. The questions must

be potentially “determinative” of the case, and there must be

“no controlling precedents” in the Illinois Supreme Court. Ill.

Sup. Ct. R. 20(a). And we have our own guiding lights. “Most

important[]” among them is that we be “genuinely uncertain

about the answer to the state-law question.” Jadair Int’l, Inc. v.

Am. Nat’l Prop. & Cas. Co., 77 F.4th 546, 557 (7th Cir. 2023)

(cleaned up). The next consideration turns on the nature of

10 No. 23-2343

the issue: if it is “an important issue of public concern” and

“likely to recur,” certification is a better bet. Cutchin v. Robert-

son, 986 F.3d 1012, 1028 (7th Cir. 2021). We also check and see

if the question might be of interest to the state supreme

court—further favoring certification if it’s likely “the result of

the decision in a particular case will exclusively affect the cit-

izens of that state.” Id. at 1029.

A. 1(f) and Statutes of Repose

Martin relies on Exception 1.1 to press her claim. To suc-

ceed, she must establish that any application for compensa-

tion benefits “would be precluded due to the operation of any

period of repose or repose provision.” 820 ILCS 310/1.1. If

there is such a provision here, it is 1(f). No one argues 6(c)

bars Martin’s claim, which she brought within three years of

Rodney’s diagnosis. And so we ask if 1(f)—which the Illinois

Supreme Court has called a “temporal limitation,” see Folta,

43 N.E.3d at 118—is a “period of repose or repose provision.”

Lacking further guidance from the Illinois Supreme Court,

we are mindful that “the rulings of the state intermediate ap-

pellate courts must be accorded great weight.” State Farm

Mut. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001). But they

point in both directions. Some recognize, for example, that

1(f) “operates as a statute of repose” (at least in terms of toll-

ing). Dickerson v. Indus. Comm’n, 587 N.E.2d 1045, 1047 (Ill.

App. Ct. 1991). At the same time, others describe the provision

as “a condition precedent to recovery.” Docksteiner v. Indus.

Comm’n, 806 N.E.2d 230, 234 (Ill. App. Ct. 2004). The cases

leave us at an impasse.

Other avenues meet their own dead ends. We know that

in Illinois, “a statute of repose extinguishes the action after a

No. 23-2343 11

defined period of time.” Evanston Ins. Co. v. Riseborough, 5

N.E.3d 158, 164 (Ill. 2014) (emphasis added). The very “right

to bring an action is terminated.” Id. But that does not resolve

this case. While 1(f) denies “compensation,” one remedy,

without explicitly barring an action, no other remedy exists.

We cannot discern if the Illinois courts would conclude that

barring a sole remedy counts as “extinguish[ing]” an action.

In short, we are uncertain. And the stakes on this question

are high, both for this case and other long latency cases. If 1(f)

does not fit in the statute, Martin and many others lose. To

underscore the magnitude of this question, consider how it

came about. The Folta court granted discretionary review to

establish limits on plaintiffs’ recovery, even as it regretted the

“harsh result.” 43 N.E.3d at 118. The legislature responded

with Exception 1.1, and the governor signed on. All three state

branches agree: the ODA’s interaction with long latency dis-

eases is an important policy question.

So we certify this first question: Is 1(f) a “period of repose or

repose provision” for 310/1.1 purposes?

B. Retroactivity and Statutory Interpretation

Goodrich identifies another challenge for Martin: Excep-

tion 1.1 may not apply here. After all, Rodney’s VCM expo-

sure occurred decades before its enactment. In a line culmi-

nating in Perry v. Department of Finance and Professional Regu-

lation, 106 N.E.3d 1016, 1026 (Ill. 2018), Illinois courts have dis-

tilled their process for addressing this sort of retrospectivity

argument. There are (nominally) two steps.

1. The “court first determines whether the leg-

islature has expressly prescribed the tem-

poral reach of the new law.” Id. (cleaned up).

12 No. 23-2343

If it has, the court fills that express prescrip-

tion.

2. If not, “then the court must determine

whether applying the statute would have a

retroactive impact.” Commonwealth Edison

Co. v. Will Cnty. Collector, 749 N.E.2d 964, 971

(Ill. 2001). It should then read the statute to

avoid those impacts.

We say “nominally” two steps because in practice “Illinois

courts need not go beyond step one.” Perry, 106 N.E.3d at

1026. As it happens, “the legislature always will have clearly

indicated the temporal reach of an amended statute.” Caveney

v. Bower, 797 N.E.2d 596, 603 (Ill. 2003). That is because Section

4 of the Illinois Statute on Statutes essentially provides a back-

stop. It reads:

No new law shall be construed to repeal a for-

mer law, whether such former law is expressly

repealed or not, as to any offense committed

against the former law, or as to any act done,

any penalty, forfeiture or punishment incurred,

or any right accrued, or claim arising under the

former law, or in any way whatever to affect any

such offense or act so committed or done, or any

penalty, forfeiture or punishment so incurred,

or any right accrued, or claim arising before the

new law takes effect, save only that the proceed-

ings thereafter shall conform, so far as practica-

ble, to the laws in force at the time of such pro-

ceeding.

No. 23-2343 13

5 ILCS 70/4. Put simply, a substantive statute either pro-

claims its own retrospective effect, or cedes that power to

Section 4. See Caveney, 797 N.E.2d at 602.

The trouble here is it is unclear if Exception 1.1 controls its

own fate. It may reach back: it does command that exclusivity

provisions “do not apply” where a statute of repose would

otherwise bar the claim. That is categorical language—it

might express clear intent. Or it might be that those provi-

sions “do not apply” going forward, but still apply to pre-

2019 conduct. Then Section 4 would step in and render Excep-

tion 1.1 inapplicable here.

Here too the uncertainty butts up against strong Illinois

policy interests. If Exception 1.1 applies only prospectively,

all those long latency cases dating to the asbestos era lie out-

side its bounds. In short, the same policy interests supporting

certifying the first question apply with near-equal force here.

With that in mind, we certify a second question: If 1(f) falls

within Exception 1.1, what is its temporal reach—either by its own

terms or through Section 4?

C. Due Process Implications

If Exception 1.1 does apply to this conduct, Goodrich

raises another argument, this time under the Illinois Consti-

tution. The company insists that in 1976 it vested a right to be

sure Martin would not bring a claim, when 1(f) barred his

right to seek compensation and the exclusivity provisions

stood in the way of any action in another forum. No doubt:

“once a claim is time-barred, it cannot be revived through

subsequent legislative action without offending the due pro-

cess protections of [Illinois’s] constitution.” Doe A. v. Diocese

of Dallas, 917 N.E.2d 475, 486 (Ill. 2009). Martin tracks with

14 No. 23-2343

that, up to a point. Nevertheless, she resists the conclusion—

she claims that Goodrich’s right could not vest until Rodney’s

did, in 2019. By then the legislature had passed Exception 1.1.

This question is no less fraught than the first two. The

problem is that 1(f) interacts oddly with the exclusivity pro-

visions. They are separate. It might be, for example, that in

1976 Goodrich vested a right not to pay compensation for

Martin’s claims, but never vested a right not to face those

claims in court. To further complicate the inquiry, there is

some authority for Martin’s position that Goodrich’s rights

accrue only when hers do. See Henrich v. Libertyville High

School, 712 N.E.2d 298, 310 (Ill. 1998) (immunity defense vests

“when the cause of action accrued”). But then as we know, a

statute of repose nips the cause of action in the bud. It never

accrues. See Evanston Ins. Co. v. Riseborough, 5 N.E.3d 158, 164

(Ill. 2014) (“A plaintiff’s right to bring an action is terminated

when the event giving rise to the cause of action does not tran-

spire within the period of time specified in the statute of re-

pose.”). So, on Martin’s theory, it seems Goodrich would

never vest a right in the statute of repose.

Yet again, these state law questions are complicated and

consequential in equal measure. For just that reason, we cer-

tify a third question: Would the application of Exception 1.1 to

past conduct offend Illinois’s due process guarantee?

III. Conclusion

The resolution of these questions could dispose of an un-

told number of claims. Each claim, in turn, has big stakes for

its plaintiff. Illinois’s coordinate branches have signaled the

importance of these issues—and for all the weight Illinoisans

and their government place on these issues, they have zero

No. 23-2343 15

effect outside the state. At the end of the day, these are Illinois

questions best left to Illinois judges.

Consistent with that respect for institutional expertise, we

recognize there may be better ways to frame this case and its

questions. For that reason, we invite the Justices of the Illinois

Supreme Court to reformulate our questions if they wish. We

have no intention to limit the scope of their inquiry—these

questions reflect no more than our own understanding. The

Clerk of this Court will transmit the briefs and appendices in

this case, together with this opinion, to the Illinois Supreme

Court. On the request of that Court, the Clerk will transmit all

or any part of the record as that Court so desires.

QUESTIONS CERTIFIED.