Heather Isringhausen Gvillo Jul. 22, 2014, 3:22pm

EDWARDSVILLE, Ill. (Legal Newsline) - The crowded asbestos docket in Madison County, Ill., saw a drop of more than 100 new asbestos case filings so far this year, which some attorneys attribute to the decrease of lung cancer cases.

As of June 30, Madison County has seen 656 new cases filed in its asbestos docket, a drop from last year's record of 793 mid-year filings.

If the pace of cases filed so far this year, the nation's busiest asbestos docket will be down by approximately 20 percent over last year's record-setting figure of 1,678.

This may come as a surprise considering Madison County's docket has doubled in the last four years and tripled in the last seven. It has been called the nation's epicenter of asbestos litigation by the American Tort Reform Foundation, which has often listed the county on its yearly "Judicial Hellholes" list.

One significant driving factor of the asbestos docket's increase in recent years has been the rise in lung cancer claims.

Until last year, the vast majority of asbestos claims brought in Madison County were on behalf of victims of mesothelioma, a deadly asbestos-related cancer in the lining of the lungs. But last year the number of lung cancer cases spiked, making up approximately 45 percent of the caseload, or 329 lung cancer claims at mid-year.

Of the new filings, 194 were lung cancer cases, or 30 percent of the new cases, and 452 were mesothelioma claims.

The increase in lung cancer cases came after an advanced trial setting system that provided advantage to the three largest asbestos firms - Simmons, Gori and Julian and Goldenberg - was eliminated. That change provided opportunity for other firms, local and national.

After changes were made to the trial settings, the New York based-Napoli firm opened an office in Madison County in 2012. Just one year later, the firm dominated the docket, representing roughly 32 percent of the new case filings. Of those 525 cases, more than 90 percent of those cases were lung cancer claims.

So far this year, however, the firm has filed about 19 percent of the total filings, or about 124 new cases.

Plaintiff attorney Patrick Haines of the Napoli firm agreed his firm files a larger number of lung cancer cases than other asbestos plaintiffs' firms.

"I hate to take the credit, and/or the blame, for the filing rate, but I think that's for our lower filing rate," Haines said of the decrease in new lung cancer cases.

"When our rates go down, naturally the number of lung cancer cases will go down," he added.

Haines provided an explanation for the decrease, saying the firm obtained an influx of lung cancer cases all at once a few years ago, resulting in a mass lung cancer filing last year.

Since then, the firm has been steadily rejecting and selecting which claims the firm will represent. He explained that the initial wave of work is complete, allowing for a drop in filing rates.

"We chewed through that work that was all there in one chunk," he said.

Haines explained that the firm continues to receive cases and will continue to file new cases at a fairly consistent, but slower, rate - thus, returning the filing rate to the "baseline."

He added that the lung cancer rates should look more like it did two years ago rather than the lung cancer-heavy numbers last year offered.

Haines said he doesn't expect another wave of lung cancer cases to come in the future, but didn't rule out the possibility.

"I would see last year as more of an aberration rather than a trend," he said. "But the crystal ball can only go so far."

Haines said Napoli's numbers have also decreased as the firm files more and more cases in other dockets.

Defense attorney Kent Plotner of the Heyl Royster law firm said defense firms have noticed there wasn't a "large influx" of filings compared to last year and agreed that it could be attributed to the decline in new lung cancer cases.

He added that there must have been an inventory of lung cancer cases filed all at once in previous years, and since then law firms have balanced out, making only routine filings.

Defense attorney Brian Huelsmann of HeplerBroom wasn't as convinced that the docket was improving. He noted that despite the drop from last year's numbers, roughly 25 percent of all asbestos cases field in Madison County are still lung cancer cases.

He added that while Napoli boasts less filings this year, its percentage of lung cancer cases is significantly higher than its competitors as Simmons and Moni continue to file a large majority of mesothelioma claims.

Furthermore, Plotner pointed out that there continues to be more lung cancer cases set for trial than in years past.

Despite the rise in lung cancer cases set for trial, the limited number of available trial slots in the crowded docket could encourage plaintiffs to take their cases elsewhere, he added.

Huelsmann explained that Madison County has a reputation for congestion in its asbestos docket as trial slots fill up.

According to a docket analysis, there have been 972 first time trial settings and 855 cases continued to new trial settings for 2014, with some cases continued multiple times.

In other words, there have already been 1700 trial settings for this year.

Looking forward, the court has already established 701 new trial settings for 2015 with 190 cases continued from this year.

Furthermore, there are already 100 new trial settings for 2016.

Huelsmann added that approximately 20 to 50 asbestos cases are set for trial each week, meaning there are more cases set for trial than there are judges in Madison County.

As a result, those numbers might be discouraging for plaintiffs when choosing a docket for their asbestos cases.

He added that hypothetically speaking, it could take four to five years to conclude every case currently on the asbestos docket if no more new cases were accepted.

Additionally, Huelsmann said the decrease in new filings could also be attributed to the nine straight defense verdicts in Madison County since 2004, which is discouraging for plaintiffs.

"Madison County jurors are not going to be handing out money left and right as plaintiffs can't prove their case," he said.

While there appears to be a decrease in total filings, not much has changed regarding location of the plaintiff.

Numbers show that 90 percent, or 590, new case filings come from states other than Illinois, which is consistent with Madison County's well-established pattern.

Of the 10 percent, or 66, cases filed by Illinois residents, only three were actual Madison County residents.

Plotner agreed that there "still continues to be a disproportionate number of out-of-state cases being filed in Madison County.

In total, there were 452 mesothelioma cases, 194 lung cancer cases and 11 other-illness cases.

However, Huelsmann said that while the numbers are less than previous years so far, the 656 new cases still puts Madison County on pace to reach more than 1,200 cases by the end of the year, which still doubles the numbers from 2004 to 2008

"So while they're not at the historic record numbers," he said, "I anticipate we will still be in the top five larges filings."

In years past, records show there were 325 cases filed in 2006; 455 cases in 2007; 659 cases in 2008; 814 in 2009; 752 in 2010; 953 in 2011 and 1,563 in 2012.

Ultimately, Plotner concluded that it is too early to tell what the explanation is attributable to the drop in new asbestos filings.

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

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