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Wednesday, August 21, 2019

Asbestos defendants succeeding in rare Madison County trials

By Heather Isringhausen Gvillo | Mar 19, 2014

EDWARDSVILLE, Ill. (Legal Newsline) - Despite an ever-increasing and record-breaking amount of asbestos lawsuits being filed in Madison County, Ill., attorneys say trials there have been less frequent than in other jurisdictions - and dominated recently by defendants.

The asbestos docket that landed Madison County on the American Tort Reform Association's annual "Judicial Hellholes" list has seen nine consecutive defense verdicts since 2005, averaging about one trial per year.

Nicknamed the epicenter of asbestos litigation by ATRA, Madison County is largest asbestos docket in the country and saw another record-breaking year for newly filed asbestos cases in 2013. The Circuit Clerk's office reports that 1,678 new asbestos cases were filed last year, eclipsing the previous record in 2012 by more than 100.

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.

While it may have the nation's largest number of new filings, the county sees a relatively small number of trials compared to other major asbestos jurisdictions across the U.S, several defense attorneys agreed.

Attorney Brian Huelsmann of HeplerBroom, who was part of the defense teams representing Georgia Pacific in two of the below-mentioned trials, said that prior to 2005 there were three large plaintiff verdicts in Madison County, awarding claimants $16 million, $34 million and $250 million.

In April 2003, a Madison County jury ordered defendant U.S. Steel to pay the claimant Roby Whittington of Indiana $250 million for his asbestos-related illness. However, it later settled for an undisclosed amount following the verdict in lieu of an appeal.

National asbestos expert Lester Brickman, law professor of the Benjamin N. Cardozo School of Law at Yeshiva University in New York, suggested that the multimillion-dollar plaintiff verdicts entered demonstrated a "clear pro-plaintiff bias on the part of the juries," but recognized that there have been some notable defense verdicts recently.

Fast-forward to 2005, and the tables turned in favor of the defense. That year, Madison County saw two asbestos trials, the first resulting in a relatively small plaintiff win and the second a defense victory.

In May 2005, a jury deliberated for nine hours over two days before entering a verdict in favor of claimant Willard King and his wife for $500,000.

Defendant Bondex International was held liable for the verdict, while defendant Georgia Pacific was not found to be at fault in the case, resulting in a defense win.

The Madison Record reports that the amount was reduced to almost nothing due to King's settlements prior to attempting a trial with the remaining defendants.

In a second 2005 trial, a jury deliberated for just 20 minutes before ruling in favor of defendant General Electric following an eight-day trial, which was almost cut short due to evidence deemed "weak" by the presiding judge.

In this case, claimant Jane Gudmundson claimed her late husband Harvey Gudmundson was exposed to the defendant's asbestos-insulated steam turbines while serving on the USS Bausell with the U.S. Navy in the early 1950s.

In 2006, a jury decided in favor of defendants Georgia Pacific and Bondex International in claimant Anita O'Connell's lawsuit alleging her mesothelioma developed from washing her husband's and sons' work clothing between 1966 and 1970. Her family owned a plastering business, and she would shake the clothing before laundering them, increasing her exposure.

In October 2007, the jury entered a verdict favoring defendant National Lead, which was blamed for causing claimant John Larson's illness. The suit alleges William Larson, John's Larson's father, brought asbestos home on his clothing, which would become airborne, resulting in John Larson's asbestos exposure.

National Lead was thrown back into the spotlight in 2008 when claimant Harry Glass alleged his late wife Mary Glass was exposed to asbestos dust he brought home from work from 1952 to 1978 while working at the Granite City, Ill., lead plant.

National Lead did not call a single witness to the stand to testify in its defense, but still won a verdict after two hours of deliberations.

Defendant Home Builders Supply won its first Madison County defense verdict in December 2009. Claimant Terry Stephens alleged he was exposed to asbestos-containing products while working with boilers and turbines.

Then in March 2010, jurors entered a verdict favoring defendant Ford Motor Company, which was blamed for contributing to claimant Larry Williams' mesothelioma with its asbestos-containing brake products.

In November, defendant Georgia Pacific won its third victory in a Madison County asbestos trial after jurors found in its favor. The lawsuit alleged that claimant James Reef, a carpenter, developed mesothelioma after using the defendant's asbestos-containing joint compound while performing drywall work.

Lastly, just last month jurors decided in favor of defendant Crane Co. in a former U.S. Navy machinist mate's lawsuit alleging his exposure to asbestos-containing gasket material contributed to his development of mesothelioma.

In response to the recent defense verdicts in Madison County, personal injury attorney Patrick Haines of Napoli, Bern, Ripka & Shkolnik - a New York-based law firm that opened an office in Madison County in 2012 - said the "Judicial Hellholes" reputation that can be attributed to a prior era in the local asbestos docket is no longer applicable, calling the label "unfair."

He added that asbestos cases are judged on the facts, resulting in a fair jurisdiction.

"Whenever you say 'Judicial Hellhole,' it makes it sound like people aren't getting justice, which just isn't true," Haines said.

ATRA Director of Communications Darren McKinney and Brickman agreed that Madison County's notoriously plaintiff-friendly asbestos docket can be attributed to former Judge Nicholas Byron, who "accommodated the plaintiff's bar in virtually every conceivable way," Brickman said.

"He was corrupt as the day is long," Brickman said.

"He was so shamelessly plaintiff-friendly that it was almost instantaneous that the local attorneys came to understand that, 'This was a place where we could have our way,'" McKinney added.

McKinney said that the "Big Bang" of asbestos litigation in Madison County arose when Byron would run his court disadvantaging defendants, resulting in a rise in case filings and plaintiffs firms and a crowded docket.

"When Judge Byron retired, the expectation was that there would be a significant change in the docket and defendants would be given a much fairer shake," Brickman said, "but that turned out to be pretty short-lived."

However, the appeal in Madison County's asbestos docket can also be attributed to Circuit Judge Barbara Crowder for assigning all trial dates "to a handful of law firms that coincidentally provided financial support for her political campaigns," Brickman added.

"Trial slots in Madison County are like gold," Brickman said, "because most asbestos cases don't settle until the plaintiff has a trial date."

"Now the trial dates are assigned in a more equitable manner," he added.

Several defense attorneys agreed that Madison County's asbestos docket began in the late 1980s with mass filings of asbestos suits against local industries. They were filed as a result of union-provided cancer screenings that suggested possible asbestos conditions.

In order to meet the two-year statute of limitations rule, several thousand asbestos lawsuits were filed all at once.

"After a while, there was an administrative system established in Madison County. In addition, people could get their cases out on the plaintiff's side fairly quickly," said Raymond Fournie of the Armstrong Teasdale law firm.

In fact, Fournie said cases filed in Cook County, Ill., could take roughly six years before going to trial, making jurisdictions like Madison County more appealing, calling it a "Rocket Docket."

"It's an organized system that allows for quick resolution of cases, meaning expedited trial settings," said Kent Plotner of the Heyl Royster law firm.

According to Illinois law, cases filed by claimants with terminal cancer who are more than 70 years old may have their cases expedited in order to get a trial setting six to seven months after filing, Fournie continued.

Haines said that Madison County also offers efficiency, which can be appealing for asbestos litigation. He added that bringing an asbestos case in what some would consider its proper jurisdiction can be like "reinventing the wheel every time" when the court does not have experience with such lawsuits.

"When you are dealing with mass tort cases, the appeal is efficiency," Haines said, "looking for where the judges have experience and have a process to get cases moving orderly at low cost."

Madison County is sufficient and predictable, which is reassuring for both parties so they know what to expect, he continued.

"Even the little things magnify when you have a large volume of cases," Haines said.

Ultimately, Haines addressed accusations that the firm was drawn to it as a result of its plaintiff-friendly reputation.

"I think the misconception is that somehow the cases are filed in Madison County because we think this is a pro-plaintiff jurisdiction," he said.

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

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