MO and IL asbestos litigation trends compared at conference

Heather Isringhausen Gvillo Nov. 29, 2014, 6:00pm

ST. LOUIS (Legal Newsline) – While comparing asbestos litigation trends in neighboring states, two attorneys from both sides of the asbestos argument agree personal jurisdiction is becoming more important as out-of-state claimants flood to local jurisdictions.

As part of the HarrisMartin Midwest Asbestos Litigation Conference in St. Louis on Sept. 18, Patrick Stufflebeam of HeplerBroom and Andrew O’Brien of the O’Brien Law Firm discussed trends in Illinois and Missouri asbestos litigation, often times comparing the two states.

Personal Jurisdiction

The two opened their presentation by discussing personal jurisdiction, which is a popular subject in Madison County, Ill., where roughly 90 percent of the newly filed cases come from out-of-state claimants.

Stufflebeam addressed what it takes to make a jurisdiction “at home,” noting that there is no test or standard handed down by the U.S. Supreme Court to make the determination more black and white.

Instead, parties must argue that an affiliation exists, but can’t simply rely on the fact that a defendant does business in a particular state.

“Affiliations must be so continuous and systematic as to render it essentially at home in the forum state,” the presentation states.

Common connections to a particular state include an affiliate’s office, employees, licenses or real estate purchases.

However, Stufflebeam said it could take more convincing to prove jurisdiction, because “purchases in and of itself is not sufficient to render a case at home.”

As an example of how gray it can be when arguing for a specific jurisdiction, O’Brien mentioned a case he was able to keep in Missouri by relying on a local registered agent.

O’Brien got the court to agree that the defendant intended to do business in Missouri and chose to make itself physically present in Missouri by having a local registered agent.


When addressing settlements, Stufflebeam said there are three D’s for asbestos defense attorneys: defend, delay and don’t pay.

However, when payment is inevitable, settling seems to be the go-to resolution for asbestos cases.

In both states, the defendants must confirm that a settlement was reached and then must pay the award within 30 days of the agreement.

When dealing with written confirmation of a settlement agreement, Stufflebeam strongly encouraged both defense and plaintiffs’ attorneys to consider what constitutes as written confirmation. He added that virtually anything could potentially be interpreted as written confirmation.

For example, an email chain discussing settlement options could be taken as written confirmation of an agreement by one of the parties. To avoid such confusions, parties should be careful about their communication and clearer about their intentions.

Additionally, O’Brien said Missouri is currently concerned about how to balance defendants’ rights to information and confidential settlements.

The general public policy in Missouri is to encourage settlements, but some defendants are seeking settlement information to help unmask any potential additional exposures.

O’Brien said some judges are uncomfortable disclosing the information because it fails to encourage settlements.

Missouri punitive damages

Stufflebeam and Patrick ended their discussion with a recent development in Missouri after the state’s Supreme Court unanimously struck down its cap on punitive damages.

The case they are referring to is the Lewellen v Franklin decision from Sept. 9, where a jury awarded $25,000 in compensatory damages and $1 million in punitive damages on both counts of her common-law fraud claim.

After the verdict was entered, the circuit court reduced the punitive damages award pursuant to the state’s cap, but the Supreme Court held that the mandatory reduction of Lewellen’s punitive damages award violates her right to a jury trial.

“Because the right to a jury trial in 1820 included the right to have a jury determine the amount of punitive damages in an action for fraud, section 510.265’s cap on punitive damages awards is unconstitutional because the statute imposes a legislative limit on the jury’s assessment of punitive damages when such limits did not exist in 1820,” the Supreme Court held.

“The court is trying to do things, undoing what the legislator is doing,” Stufflebeam said of the decision.

While the Lewellen case is not an asbestos case, Stufflebeam and O’Brien said the decision is important because it removed a punitive damages cap for personal injury asbestos cases as well.

Howver, Stufflebeam said defendants are prepared to argue in favor of caps on wrongful death asbestos cases.

“We’ll argue that one,” he said. “We’ll try to come up with something creative.”

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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