Heather Isringhausen Gvillo Apr. 3, 2014, 1:42pm

EDWARDSVILLE, Ill. (Legal Newsline) - Madison County broke yet another record in 2013 and maintained its standing as the epicenter of asbestos litigation, which has some questioning what future the crowded asbestos courtroom has.

The Circuit Court reports that 1,678 new asbestos cases were filed in 2013, eclipsing previous records and throwing Madison County back into the spotlight as the busiest asbestos docket in the country.

After embarking on a long, critical journey, the Madison County asbestos docket doesn't appear to be going anywhere as it continues to set records.

"Current practices provide substantial benefits to the plaintiffs bar as well as the defendants bar, so there's little reason to expect change, but that would depend on how the new judge would assess the situation," said Lester Brickman, law professor of the Benjamin N. Cardozo School of Law at Yeshiva University in New York.

Brickman was referring to Associate Judge Stephen Stobbs' appointment as the new Madison County asbestos judge in October.

"It's interesting," American Tort Reform Association Communications Director Darren McKinney added. "I don't see anything on the horizon now."

Attorney Kent Plotner of the Heyl Royster law firm agreed, saying the docket will likely continue on the rates it is seeing now.

"It doesn't appear that there is going to be a change in the number of cases that are going to be filed," he said.

Plaintiff attorney Patrick Haines of Napoli, Bern, Ripka & Shkolnik disagreed, saying the docket has already changed over time and will continue to do so.

"Asbestos litigation continues to evolve, it's never constant," Haines said. "I've been doing it for 20 years and it's very different from when it started."

"It's definitely going to evolve, that's just fine," he added. "It's not static."

Regardless, McKinney said it's just speculation at this point.

"Nobody's got a perfect crystal ball," he said.

As Madison County's asbestos docket continues to break records, the question is whether or not it can sustain its growth, specifically if more trials arise out of the situation.

Since 2005, Madison County has averaged about one in trial per year. The county could handle more trials than it's seen in recent years, but not too many more, attorney Brian Huelsmann of HeplerBroom confirmed.

In order for both parties to prepare, there is a limit on the number of cases that can be reasonably set for trial.

"You reach a point where you can't conceivably get them ready beyond a certain point," Plotner said.

On the other hand, it's not entirely Madison County's fault for the quickly growing docket. According to Illinois law, courts are required to accommodate terminal claimants over 70 years old, Raymond Fournie of the Armstrong Teasdale law firm explained.

"Courts accommodate the laws' requirements as much as possible, but there are physical limitations on what can be done," Fournie said.

"At some point, if the volume gets too big, the system can no longer absorb and will start to crumble under its own weight."

Looking forward, McKinney expressed concern over the increasing number of lung cancer cases across the country, including Madison County.

He says the country has reached its epidemiological peak with respect to new diagnosis of mesothelioma cases, allowing the focus to fall on lung cancer cases.

"It seems to me, that the asbestos bar will be increasingly driven to find other ways to milk this cow, as it were," McKinney said.

The already growing asbestos docket in Madison County will only continue to increase with an influx of those lung cancer cases, Plotner added.

Specifically, McKinney explained that a majority of those lung cancer cases can't all be attributed to asbestos exposure.

"The plaintiffs with lung cancer making claims against asbestos defendants, virtually all of them were habitual cigarette smokers at some point in their lives," McKinney said.

However, Haines clarifies that plaintiffs attorneys recognize that numerous claimants diagnosed with lung cancer smoked cigarettes at one point, but they only have to legally show that asbestos was a contributing factor to the lung cancer.

"The lung cancer cases are not in any way frivolous cases," Haines said. "It's cancer that just happened to grow on the inside of the person's lung as opposed to the outside of the person's lung."

Hope for Change

One hope for the type of change ATRA would like to see could come from Stobbs, who inherited what the group felt was a notoriously plaintiff-friendly asbestos docket when he was appointed to preside over it in October.

Stobbs has implemented a priority system, requiring plaintiffs attorneys to select their top five cases most likely to go to trial each week. This allows defendants to focus on five possible trial cases rather than 20 or more.

Haines said he thought this was always the way in Madison County, but still commended the method as a "good way to handle" the system, adding that it "helps move the system along."

"It always helps to give a priority system so resources can be allocated accordingly by the defendants," Fournie agreed.

Plotner added that the priority system helps hearing days flow more smoothly.

"Prioritizing the top five allows some sense of a state of preparedness the cases need to be in for trial purposes," Plotner said.

Fournie said he would like to see the priority system implemented earlier in litigation, allowing defendants to allocate their efforts sooner.

"I would hope that, as we continue going further along in the litigation, that the priority listings that the judge is requiring would be pushed a little farther away from trial," he said.

Defense attorneys who want to see reform shouldn't look toward the Illinois Legislature.

Plotner agreed legislation would address concerns and help provide guidance when handling such a large asbestos docket.

Other states have begun to turn to reform in asbestos litigation through legislation, the most recent one being Wisconsin's recent approval of asbestos trust fund transparency, making it the third state to enact such legislation. It joined Ohio and Oklahoma.

Andrew Cook of the Hamilton Consulting Group released a report called "2013 Civil Justice Update: Recently Enacted State Reforms and Judicial Challenges," addressing transparency laws and several other legislations released in an effort to clean up America's courtrooms.

Some include caps on noneconomic damages, priority laws for cases that need to be handled more quickly and protection for innocent companies that purchase companies that once manufactured asbestos-containing products.

However, Cook explained that such legislation generally only get passed in Republican-controlled legislatures.

"There are some legislatures out there who have started talking about that," Huelsmann said. "You see that but it doesn't seem to be going anywhere in the state of Illinois."

"They've all had legislative reform and it's really curved the asbestos filings," Huelsmann added.

Fournie said that while passing legislation could help provide guidance and establish structure, it can also create a more cumbersome situation.

He clarified by saying legislators will have to take all ramifications into account when writing up those laws and asked what to do with those that can't be foreseen.

"Legislative solutions are very difficult to crack when you get down to what you have to do in order to be successful with them," Fournie said.

"Legislation is always tricky in the legal arena, simply because there is always a right to redress grievances in a court. Some have established a certain threshold for them to be filed and maintained in the jurisdiction."

Fournie compared his argument to Forest Gump's "Life is like a box of chocolates" phrase.

"You don't know which one you get until you open the box," Fournie said. "It's like that in law. Make sure whatever you crack is going to be constitutional and fair."

However, McKinney didn't seem convinced that the Illinois Legislature was capable of such reform.

"It's not likely any time soon," McKinney said. "I don't see with the current political make-up in Springfield, I don't see such legislation happening."

"I don't think the Illinois Legislature, which is controlled by the Democrats and the unions, is going to pass any legislation that is against the interest of the plaintiffs bar, given the current make-up of the legislature," Brickman agreed.

Huelsmann said the future of the Madison County asbestos docket will rely heavily on how it handles forum non conveniens hearings.

Because Stobbs has only been presiding over asbestos cases since October, Huelsmann said he has not yet had to rule on many of these motions yet.

Plotner agreed such hearings could limit the number or types of cases filed in Madison County that "arguably have no connections."

Ultimately, McKinney said he didn't anticipate any changes in the future, but expressed hope that reform could improve the county's reputation. His group has called Madison County a "Judicial Hellhole" in its annual report.

"You never want to give up hope entirely," McKinney said. "Hope for the best. Hope people will get around to doing the right thing."

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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