Heather Isringhausen Gvillo Oct. 31, 2014, 7:15am

EDWARDSVILLE, Ill. (Legal Newsline) – As Madison County’s asbestos docket continues to make headlines as one of the largest dockets in the country thanks to an unbalanced scale tipping heavily towards out-of-state claimants, the jurisdiction’s approach to trial slots is being called into question by defense attorneys.

“If we could just get some relief with the trial slots, that would help with the jurisdiction” said Lisa LaConte, defense attorney with Heyl Royster.

LaConte said trial slots and forum non conveniens practices work together to create an attractive docket in Madison County.

“It doesn’t boil down to one issue,” she said. “All issues build on each other.”

Calling trial settings the “trigger,” LaConte explained that as long as the local court maintains its current practice of setting sometimes 50 cases or more for trial on any given week, more lawsuits will be filed there. As more cases are filed and less cases are transferred to more appropriate jurisdictions, more trial slots are required to resolve the number of cases. It’s a vicious circle, she said.

“If you were not pushing so many cases through the trial process, it would make this a more equal jurisdiction,” LaConte said.

“There would be no real incentive to bring them here, because there is no fast track to a trial date."

Defense attorney Brian Huelsmann of HeplerBroom agreed, saying that when outside cases remain in Madison County, a larger number of trial settings are the result.

“That is where it all stems,” he said. “If the cases are not getting dismissed on forum, they get trial settings.”

“That has been the issue for a long time."

LaConte said forum non conveniens motions are one of the primary reasons Madison County’s asbestos docket is one of the largest in the nation, but the most significant problem is the number of cases set for trial every year.

Huelsmann explains that as of Oct. 15, 820 first-time trial settings and 254 cases continued from the 2014 trial docket have been set for 2015. That makes a total of 1,074 cases set for trial for 2015 with two-and-a-half months to go in 2014.

Because there are still several trial dockets this year, more cases will get bumped to 2015, raising the number for next year.

“I expect there will be another 100 or more cases getting continued to next year, as well,” he said.  

That would put 2015 on track for roughly 1,100 to 1,200 trial settings in a jurisdiction where there are 30 trial dates and 20 judges, only one of whom presides over the asbestos docket.  

Looking even further ahead, there are already 256 first-time trial settings for 2016 so far.

Huelsmann said that most would argue that 99 percent of the cases settle, especially in Madison County where there has been an average of one trial per year for the last decade.

However, he anticipates the number of cases going to trial could increase, especially as lung cancer cases begin to reach their trial dates.

“If there are more trials, I don’t think the county is going to be able to handle it,” he said.  

Madison County saw a record number of new filings in 2013 just before a drop in filings so far this year, primarily due to the decrease in new lung cancer cases.

As of June 30, there were 656 new cases filed in its asbestos docket, a drop from last year’s record of 793 mid-year filings.

However, the filing numbers are still on track to top 1,000, which would still make 2014 the third-largest year for number of filings.

Huelsmann explained that if the filing numbers maintain their current pace, it averages out to roughly 35 cases set for trial per week with potentially 50 or 60 cases towards the end of next year.

“While the numbers may not be as much as before when we saw more cases, we are still going to see more filings,” Huelsmann said.

“Even if the filings are slowing, the pace at which those cases are being set for trial is not,” LaConte added.

LaConte agreed that the golden question isn’t what is wrong with Madison County’s trial slot system, it’s how to fix the problem.

“The real key question is, well how do you fix it and what does that really mean?” she said.

She believes that to fix the docket, the court would need to lessen the number of cases set for trial each week to a more reasonable number and the attorneys involved would need to abide by those limits.

In an effort to control the popular docket, Associate Judge Stephen Stobbs has been trying to narrow the number of trial slots each week in accordance with the standing order, which established that a maximum number of 19 cases could be set for trial on a given jury week – significantly lower than in previous years when more than 50 cases would be set for trial each week.

“It’s something that the defense bar has been pushing for him to stick to the limits in the standing order,” LaConte said.

LaConte added that the current system is difficult to manage for both sides as plaintiff and defense attorneys have a tough time preparing all of the cases, which can also be costly.

In fact, she said defendants incur much of their expenses after a case is set for trial, because it requires depositions and discovery.

“There’s a lot of activity once there’s a trial date,” LaConte said.

Furthermore, all of that activity must be done for each case set that week.

Huelsmann said Stobbs created the priority system to help parties prepare for cases that could actually go to trial each week. Plaintiffs attorneys were told to label their top five cases.

“Some firms are pretty good about it,” he said. “While other firms come in and rattle off 15 or 20 cases.”

However, LaConte said she and several other defense attorneys are advocating for narrowing the standing order down to 10 cases per trial docket to improve efficiency and aid in preventing outside cases from flooding the jurisdiction.

During the HarrisMartin Midwest Asbetos Conference in St. Louis on Sept. 18, plaintiffs attorney Sara Salger of Gori Julian & Associates also addressed how Stobbs is working to bring the asbestos docket to a more manageable position by decreasing the number of cases set for trial.  

She explained that Stobbs has implemented a new removal method which requires plaintiffs attorneys to remove a case from the trial docket in order to add another case.

However, Salger said removing cases from the trial docket has created a “backlog” as cases are getting pushed back.

As more cases get continued so living mesothelioma claimants can have their cases addressed in a timely manner, a mountain of postponed lung cancer and wrongful death cases are building up, which all must eventually be resolved.

“At some point in the future, we are going to have a group of cases that are going to need to be addressed and that have been on file for a period of time,” LaConte said.

Furthermore, LaConte also said that making sure cases set for trial involve local residents will help improve the docket’s functionality, which just ties back in to the connection between forum non conveniens motion practices and trial slots.

“In general, there is an inclination to make decisions that continue to create a jurisdiction that is a magnet for out of state claimants,” LaConte said.

Requests for comment by plaintiffs attorneys were all left unanswered.

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

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