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Asbestos defendants face two trials same day, same court in Illinois

By Steve Korris | Sep 29, 2010


BLOOMINGTON, Ill. - Judges in McLean County plan two asbestos conspiracy trials at the same time against the same defendants.

On Oct. 4, Circuit Judge Michael Drazewski and Associate Judge Paul Lawrence will start proceedings on claims that companies concealed the hazards of asbestos.

Pneumo Abex, a corporation that exists only to pay claims, ran out of lawyers and tried to settle the case before Lawrence because it couldn't defend two.

When Pneumo Abex lawyer Ray Modesitt asked Lawrence to continue the case so he could help his 68-year-old wife through surgery, Lawrence looked skeptical.

He asked if someone else could take over at home, and Modesitt said no.

Plaintiff lawyer James Walker accused Modesitt of dishonesty and reminded him that Pneumo Abex has litigated in McLean County for decades.

He rattled off names of lawyers Modesitt could call, ending the list with "that older gentleman from Springfield."

Lawrence denied a continuance but canceled the second week of trial, a four day week due to a holiday on Monday, Oct. 11.

Modesitt must report to Bloomington on Oct. 18, four days after his wife's surgery.

Honeywell International and Owens-Illinois plan to defend themselves at both trials, but they must split up teams that previously concentrated on one case at a time.

Walker and the plaintiff lawyer on the other case, James Wylder, split up years ago, after jointly creating a conspiracy theory that holds today's companies liable for acts that occurred 50 to 100 years ago.

Wylder alone has secured jury verdicts worth more $40 million in five years.

Jurors awarded $10 million in punitive damages against Honeywell in February, for buying a company that bought a company that made brakes with asbestos long ago.

The string of success broke in July, when jurors failed to reach a verdict in a trial for two plaintiffs with no connection, Norman Shoopman and Larry Dunham.

The judge at that trial, Circuit Judge Michael Prall, plans to retire in November.

A new trial for Shoopman and Dunham will begin before Drazewski on Monday, while Lawrence will preside over a claim from Janet and James Shipley.

Lawrence has applied for appointment to Prall's seat.

Lawrence held a pretrial hearing on Sept. 21, which opened with Modisett moving to continue the trial.

Lawrence told him he had Mr. Scott with him, and he asked how it would affect his defense if Scott took his place.

Modisett said, "Mr. Scott is not going to be here. He's going to be in Shoopman (the other trial taking place simultaneously)."

Walker demanded that Lawrence put him and Modesitt under oath.

He said Modesitt told him he would try Shoopman, not Shipley.

Lawrence asked Modesitt how long his wife would need him.

Modisett said she would need him prior to surgery because of possible complications from going off a blood thinner.

Walker said, "I would like to make a record with my testimony that he said he would try Shoopman, not Shipley."

Lawrence said, "Go ahead," and his clerk swore Walker.

Walker said that on Aug. 25, when it was apparent both trials would start on Oct. 4, Modisett told him he would try Shoopman because he tried it once before.

Walker said Modesitt compared a Shoopman trial to eating his own vomit.

Modesitt asked if he indicated intention to settle Shipley so he could try Shoopman.

Walker said, "You told me you were interested in settling Shipley because Abex didn't have enough attorneys."

The clerk swore Modesitt, who said he was lead counsel for conspiracy litigation.

He said he asked to move Shoopman to November so he could try both cases.

"I have always been assigned as lead counsel in this case," he said.

Walker asked if he didn't compare a second Shoopman trial to eating vomit.

Modesitt said, "Most trial lawyers don't want to try a case that they have tried before."

Lawrence asked if his wife would come off blood thinner on Oct. 7, and he said yes.

Walker started naming lawyers and said, "I can't believe the world didn't start to spin until Ray Modesitt started representing Pneumo Abex."

Walker said depositions were taken while Modesitt did something else.

He also said others could adequately represent Abex.

Lawrence decided the trial will start on schedule on Oct. 4, with a break from Oct. 12 to 15, and will resume on Oct. 18.

Chief Judge Elizabeth Robb endorsed the double trial in an interview on Sept. 24.

"I don't think it is unfair," she said.

When she heard that Pneumo Abex tried to settle because it lacked a lawyer, she said she can't comment on pending cases.

"All judges in the circuit have authority to set cases as they deem appropriate and they have done so," Robb said.

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