Heather Isringhausen Gvillo Oct. 29, 2014, 10:33am

EDWARDSVILLE, Ill. (Legal Newsline) – Roughly one year after Associate Judge Stephen Stobbs took the bench as Madison County's asbestos judge and made several well-intended strides to improve the “national” docket, defense attorneys have given up on arguing that cases are being filed improperly in the jurisdiction after four similar motions were denied earlier this year.

According to recent filing numbers, 90 percent of the 656 new cases filed so far this year 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.

“It seems to be business as usual in Madison County,” defense attorney Brian Huelsmann of HeplerBroom said.

Huelsmann said the future of the Madison County asbestos docket relies heavily on how it handles forum non conveniens hearings, which are pursued to ensure that more cases involve local residents rather than out-of-state claimants.

However, he said the court “made it pretty clear” what its position is on forum non conveniens arguments in May when it denied motions in four separate asbestos lawsuits alleging lung cancer in favor of plaintiffs from California, Utah, Texas and Tennessee.

Since the requests were denied, there haven’t been any other hearings on the topic.

Huelsmann explained that defendants tried taking steps towards a more manageable docket by seeking more appropriate jurisdictions, but added that continuing to file forum non conveniens motions “would seem like a waste” of time and effort.

“He made a pretty good sign of how he was going to deal with forum motions,” Huelsmann said.

He added that defendants haven’t been filing mass numbers of forum non conveniens motions with the intentions to appeal any denials because it would only burden the appellate and supreme courts.

In the four denied motions for forum non conveniens, Stobbs concluded that the defendants failed to sufficiently argue that Illinois is inconvenient for all parties involved.

The defendants, which include 12 companies, took the county’s congested asbestos docket into consideration when arguing the appropriateness of this jurisdiction.

The local asbestos docket rose significantly from 325 new asbestos filings in 2006 to 1,678 new filings in 2013, making the county the “epicenter” of asbestos litigation according to the American Tort Reform Association.

The defendants also noted the county’s growing concern of forum shopping, especially with the recent influx of lung cancer cases.

They claim the Napoli, Bern, Ripka & Shkolnik firm, which represents these plaintiffs, is a key player in forum shopping.

Since opening its local office in 2012, the New York-based Napoli firm’s filing numbers spiked from 343 in 2012 to 548 in 2013, making it the top asbestos filer in the county.

More specifically, the Napoli firm dominates the dockets’ lung cancer filings. More than 90 percent of the firm’s 2013 filings were lung cancer claims.

The defendants are concerned with Napoli’s lung cancer cases because lung cancer is most often caused by smoking and other non-asbestos related causes, they say.

The defendants contended that if all lung cancer patients were to file asbestos lawsuits, the mass filings would threaten to “overwhelm the docket, swamp the court and crowd out court resources that would otherwise be available to actual Madison County residents.”

“The consequences of mass lung cancer filings on asbestos dockets would be staggering," the defendants argued. “Madison County’s asbestos docket is not prepared or equipped to handle a new wave of litigation that could come from the filing of large numbers of lung cancer cases.”

Shortly after Stobbs denied their requests, the defendants appealed to the Appellate Court of the Illinois, Fifth Judicial District.

The defendants argue Stobbs’ orders denying the forum non conveniens motions is a “clear abuse of discretion” because the case has no relevant connection to Illinois and renders the forum non conveniens doctrine a “dead letter” in cases involving numerous defendants, which applies to nearly every asbestos case filed in Madison County.

Defense attorney Lisa LaConte with Heyl Royster said forum non conveniens is a “very significant” issue defense attorneys have tried to address at various times and in various ways over the last 10 years of asbestos litigation in Madison County, ranging from their actions in filing motions and the efforts to get standing orders and trial docket orders revised.

“The defendants have taken a multifaceted approach to the issue,” she said.

However, because Madison County has not yet shed its reputation as a “national” docket, defendants have resorted to taking opportunities to resolve cases when they are in the best interest of their clients.

“Out of necessity, defendants will need to take a harder look at what’s being filed,” LaConte said. “If they resolve a case, then they need to resolve cases that are significant.”

LaConte and Huelsmann agree that forum non conveniens rejections aren’t entirely to blame for Madison County’s large, attractive asbestos docket.

“I think that forum isn’t the singular issue in defeating the idea that Madison County is a magnet jurisdiction, but it certainly is very important,” LaConte said.

Huelsmann explained that when forum non conveniens motions are denied, it results in more filings, which leads to a larger number of trial settings.

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

However, LaConte and Huelsmann didn’t anticipate much hope for improvement when it comes to seeking a more appropriate jurisdiction for out-of-state claimants in the nation’s epicenter of asbestos litigation.

“It’d like to be able to tell you today that things are different than six months ago,” Huelsmann said, “but it seems like things are staying here.”

“Without a commitment to dramatically reduce the number of trial settings,” LaConte added, “and an equal commitment to making sure that we are spending the resources of the county and all the parties on cases that really belong in Madison County, I don’t see that there’s going to be a lot of change in the current situation.”

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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