Asbestos defendants urge changes to Madison County asbestos docket

Christina Stueve Mar. 23, 2012, 8:32am



EDWARDSVILLE, Ill. (Legal Newsline) - More than 40 asbestos defendant companies hope to prove to Madison County Associate Judge Harrison that the court's trial reservation system is no longer being used for its original purpose - to resolve local asbestos controversies.

The companies' attorneys filed court papers opposing a recent asbestos preliminary order, assigning trial weeks for 2013, as drafted in December by Circuit Judge Barbara Crowder.

An 18-page brief was signed by Robert Shultz, Jr. of Heyl, Royster, Voelker & Allen in Edwardsville; Raymond Fournie of Armstrong Teasdale Schafly & Davis in St. Louis; Daniel Donahue of Foley & Mansfield in St. Louis; and Steven Hart of Segal McCambridge Singer & Mahoney of Chicago.

"Without reform, Madison County will unfortunately continue as the destination for asbestos cases arising from coast to coast," the brief states.

Harrison, who replaced Crowder as asbestos judge in December, on Monday will hear all objections, exceptions and motions directed at Crowder's order assigning more than 500 trial slots for 2013.

Crowder was reassigned to hear chancery, eminent domain and miscellaneous remedy cases after having accepted $30,000 in campaign contributions from the area's three largest asbestos firms days after she granted those firms 82 percent of trial slots for 2013.

She entered the preliminary order Dec. 1; she accepted donations on Dec. 5 and 6. She was reassigned on Dec. 12.

Crowder later returned the donations and has denied any connection between her ruling and the donations.

The practice of reserving large numbers of trial slots for asbestos lawsuits has attracted hundreds of out-of-state asbestos cases to Madison County with no connection to Illinois, according to the attorneys who signed the brief.

They wrote in their filing that no local need justifies reserving more than 500 asbestos trial slots in Madison County for 2013. They also wrote that no evidence shows the number of non-trial asbestos cases in Madison County warrants a large pre-assignment of trial slots.

The system of assigning trial dates on a reservation basis perpetuates Madison County's reputation as an "open jurisdiction" for asbestos litigation and imposes the burden of that litigation on Madison County citizens' trial dates, they wrote.

They urge Harrison to reform the system of awarding trial dates and predict that the reservation system will continue to draw cases to Madison County from around the country.

The asbestos defense attorneys suggest a trial calendar that limits the number of asbestos-related trial settings in Madison County for 2013, giving preference to Illinois residents, stopping the reservation of trial dates for plaintiffs' firms for out-of-state asbestos claimants, providing a minimum of 12 months to prepare a case for trial and requiring plaintiffs' counsel to identify the trial order of cases 60 days before trial.

Affirming the preliminary 2013 trial calendar will exacerbate the influx of out-of-state asbestos cases into Madison County, they wrote. As a snapshot of the asbestos docket reveals, the number of asbestos-related cases in Madison County is disproportionate to its population and the incidence of asbestos-related disease in Illinois, they wrote.

According to statistics provided by the defense attorneys, in 2008, 158 Illinois residents were diagnosed with mesothelioma. In 2011, plaintiffs filed 953 asbestos-related lawsuits in Madison County, and at least 553 of these cases alleged the underlying disease was mesothelioma, three and a half times the number of mesothelioma diagnoses in all of Illinois during 2008.

Madison County's trial slot reservation system leads to an influx of asbestos cases, they say. The court created the 2012 trial calendar for Madison County asbestos cases on March 29, 2011. As of Feb. 1, 2012, 435 asbestos cases were set for trial to fill those slots on the 2012 asbestos trial calendar.

Of those 435 asbestos cases, 280 were filed after the entry of the March 29, 2011 trial calendar. In other words, they wrote, about 65 percent of the asbestos cases first set for trial in 2012 did not exist when its trial slot was created.

The practice of reserving hundreds of trial dates more than one year in advance for unfiled asbestos cases creates an artificial oversupply of trial dates on compressed pretrial schedules that attracts cases with little or no connection to Madison County, the attorneys wrote.

A review of 73 cases on three 2012 trial dockets revealed that just nine of those cases had a connection to Madison County, the lawyers wrote. On those three dates, 64 plaintiffs with no connection to Madison County were using the resources of a local judiciary intended for plaintiffs whose claims are connected to the forum, they wrote.

"It is wasteful for defendants to pay Illinois attorneys to travel around the country taking depositions of plaintiffs who reside within miles of their own county courthouse. It is time to acknowledge that the temptation to establish procedures that were intended to make the management of a large number of cases more efficient has had the exact opposite effect," the lawyers wrote.

Aside from clogging the court with hundreds of out-of-state asbestos cases, Madison County asbestos litigation imposes costs onto county and state residents, they wrote.

The court should adopt a 2013 trial calendar to eliminate the incentive for out-of-state attorneys to steer their cases through Madison County, give priority to Illinois residents, and protect defendants from forum shopping and administrative procedures that tilt the litigation landscape in the plaintiffs' favor, they wrote.

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