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‘Rammed through’ Illinois asbestos bill could face constitutional challenge; Critics say it could impose unending liability

By Heather Isringhausen Gvillo | Dec 4, 2014

SPRINGFIELD, Ill. (Legal Newsline)  – While the trial lawyer lobby is likely cheering over passage of a bill that lifts a 10-year statute of repose for the filing of asbestos litigation, critics say the group wielded its influence to rush an unstudied bill through a lame duck session before a tort reform-minded governor takes office next month.

“Even if there is merit to it, it’s not something that is to be rammed down the taxpayers’ throats in the final weeks,” said Ed Murnane, president of the Illinois Civil Justice League. 

The legislation is spearheaded by the Illinois Trial Lawyers Association and seeks to lift a 10-year statute of repose on filing asbestos suits in Illinois.

“Asbestos attorneys would just like to have a longer time to have a bite at the apple,” Murnane said of the bill.

The measure passed in the General Assembly along party lines just one week after its introduction during the legislature’s six-day fall veto session that ended on Thursday.  It now heads to the desk of outgoing Democratic Gov. Pat Quinn for signature.

Jennifer Hammer, associate vice president and legal counsel of government affairs for the Illinois Chamber of Commerce, testified before the Illinois Senate Executive Committee on behalf of those opposing Senate Bill 2221 on Wednesday.

During her testimony, she discussed the consequences the bill could have on the nation’s epicenter of asbestos litigation – Madison County – but was met with negative reactions.

“Senator Don Harmon indicated to me that he didn’t want to hear my testimony on Illinois being a ‘Judicial Hellhole,’” she said.

That came despite the fact that she never once mentioned the Judicial Hellholes report conducted yearly by the American Tort Reform Association that has brought attention to nation’s largest state court asbestos docket.

“The term definitely did not come out of my mouth,” she explained.

Hammer said the Illinois Chamber of Commerce believes there is already adequate access with a “fair approach” to justice with the current statute of repose in place.

“So we would support reform regarding asbestos litigation, but this bill actually is the opposite of being necessary reform,” she said, calling it a slippery slope from a longstanding statute.

Several experts agree that this bill has the potential to grow an already busy asbestos docket by playing into the hands of the trial lawyers.

So far, asbestos litigation has driven nearly 100 companies into bankruptcy and created an asbestos bankruptcy trust system with between $30 billion and $37 billion reserved for current and future asbestos claimants.

“Some estimates project that the total cost for the future and past asbestos litigation claims could exceed more than $250 billion,” Hammer said.

Currently, Illinois has one of the worst lawsuit climates in the country, Hammer said. More specifically, Madison County accounts for roughly 25 percent of all asbestos cases filed in the U.S.

Last year, the county saw a record-breaking 1,678 new filings.

If signed into law, the Madison County Circuit Court will only see its asbestos docket grow, said Matt Fullenbaum, director of legislation for ATRA.

“It’s just going to result in more and more litigation,” he said, “and that’s not the direction we need to go in, especially in Madison County.”

Hammer added that while there are still some ways around the current statute of limitations set in place through the discovery process– resulting in case filings alleging exposure from the 1950s, 1960s and 1970s – it will still “obviously” increase the number of claims filed.

“This would only exacerbate the problem,” she said.

To that extent, defense attorney Lisa LaConte of the Heyl Royster firm said she doesn’t anticipate a significant, noticeable increase in case filings in Madison County.

However, she does expect to see more defendants named in lawsuits that wouldn’t have been sued under the current system, such as architects, engineers and other similar contractors of property with asbestos-containing products.

“Now you give an incentive for people to look to those individuals,” she said.

Looking beyond what effect the bill could have on asbestos litigation, the overall impact is that the bill has the potential to discourage businesses from establishing themselves in Illinois, LaConte said.

LaConte explained that when looking at the big picture, businesses will consider the risks of bringing their trade to Illinois because Illinois has “imposed a very real potential for unending liability.”

“It is going to be, without a doubt, very costly and difficult … to get insurance coverage to protect themselves from liability,” she said.

LaConte also explained that the state could see disputes over the constitutionality of the bill if the statute applies to claims that are currently barred under the previous statute of limitations.

“There’s likely to be a very early constitutional challenge to the rule,” she said.

Hammer added that the bill could also be unconstitutional because it has the potential to violate defendants’ due process.

The issue of constitutionality could be brought up in trial courts and may ultimately need to be decided in the state’s appellate courts. But that all depends on how the bill is applied in the courtroom, they agree.

Regardless, Murnane said unconstitutionality is an issue that should be considered, but not by a committee when it is in a rush to end the session for the year or lawyers with ulterior motives.

What appears to be the most surprising thing about this bill is how it came out of nowhere. Dubbed the “veto session surprise,” the bill was introduced during a lame duck session the day before Thanksgiving.

By Monday, the bill was already set for a hearing at the House Judiciary Committee.

“They are trying to shove this down the throats of not only the legislature, but the people of Illinois,” Murnane said of the trial lawyers pushing for approval.

LaConte attended the committee hearing and said not enough people were there to testify against the amendments, so the bill proceeded to a vote.

One week after its introduction, the bill has already passed both the Illinois House and Senate.

“There doesn’t appear to be a lot of reasons why it all of the sudden had to be rushed through the lame duck session,” LaConte said.

Observers explained that the Illinois legislature is attempting to push the bill through before Republican Gov.-elect Bruce Rauner is sworn in.

“There’s finally a realization that you don’t have a rubber-stamp governor in control of the legislature,” LaConte said.

“The trial lawyers, particularly the asbestos trial lawyers, are trying to get something done before the new governor takes office,” Murnane added.

Calling the bill a “handout to the trial lawyers,” Fullenbaum agreed. 

Murnane explained that the current session is intended to deal with any veto handed down from the governor before a new General Assembly session begins in January. The current veto session is not, however, intended to address new legislation.

However, he explained that this last-minute approach is a typical tactic for trial lawyers.

Questioning why the state legislators couldn’t wait to consider the bill next year, Fullenbaum said that if this were sound policy, they would wait.

LaConte agreed, stating that “first and foremost, it is extremely disappointing to see the legislative process be used this way in order to ramrod legislature … through the lame duck session.”

During Hammer’s testimony, she emphasized that the bill was pushed through too quickly to provide the appropriate amount of time to allow legislators to analyze the situation. As a result, people were unable to prepare a testimony against the bill or even contact their own legislators to address their concerns. Some were not even aware of the bill until it made it to the floor, she said.

Murnane said that Illinois citizens who are not active lobbyists had no idea about the bill, and they should be allowed some opportunity to weigh in on the discussion.

“But the whole idea of trying to sneak it in the dark of the night and do something that there wasn’t ample discussion … we received no advanced notice of this,” he said.

“To pull these things out at the last minute without any warning,” he continued, “it just confirms some of the long held suspicions and feelings that Illinois voters have had about the conduct of government in Illinois.”

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

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