Napoli firm says last year's 'wave' of lung cancer asbestos cases has leveled off

Plaintiff attorney Patrick Haines of the Napoli firm in Edwardsville attributes a reduction in Madison County's year-to-date asbestos filing rate to his firm.

“I hate to take the credit, and, or the blame, for the filing rate, but I think that’s for our lower filing rate,” Haines said of the decrease in new lung cancer cases filed through June 30.

He explained that the firm obtained an influx of lung cancer cases all at once a few years ago, resulting in a mass lung cancer filing last year in Madison County.

"We chewed through that work that was all there in one chunk,” he said.

Since then, he said the firm has been steadily rejecting some and accepting other claims. He explained that the initial wave of work is complete, explaining the drop in filing rates.

Haines said that the firm continues to receive cases and will continue to file new cases at a fairly consistent, but slower, rate – thus, returning the filing rate in Madison County to its "baseline.”

At the mid year mark, a total of 656 new cases were filed in Madison County, a drop from last year’s record of 793 mid-year filings.

Until 2013, the vast majority of asbestos claims brought in Madison County were on behalf of victims of mesothelioma, a deadly asbestos-related cancer in the lining of the lungs. But last year the number of lung cancer cases spiked, making up approximately 45 percent of the caseload, or 329 lung cancer claims at mid-year.

Of the new filings through June 30 of this year, 30 percent of the cases, or 194, were lung cancer cases. Close to 70 percent, or 452, were mesothelioma claims.

If the pace of cases filed so far this year continues, the nation’s busiest asbestos docket will be down by approximately 20 percent over last year’s record-setting figure of 1,678.

The reason lung cancer cases have increased in Madison County is due to an administrative change to the asbestos docket standing order. The advanced trial setting system that provided advantage to the three largest local asbestos firms – Simmons, Gori and Julian and Goldenberg – was eliminated by former asbestos judge Clarence Harrison in 2012.

That change provided opportunity for other firms, local and national, such as the New York-based Napoli firm which opened an office in Madison County in 2012.

Just one year after it opened in Glen Carbon, the Napoli firm dominated the docket, representing roughly 32 percent of the new case filings. Of the 525 cases Napoli brought in 2013, more than 90 percent of them were lung cancer claims.

“When our rates go down, naturally the number of lung cancer cases will go down,” Haines said.

He added that the lung cancer rates should look more like they did two years ago rather than the lung-cancer-heavy numbers last year showed.

Haines said he doesn’t expect another wave of lung cancer cases to come in the future, but didn’t rule out the possibility.

“I would see last year as more of an aberration rather than a trend,” he said. “But the crystal ball can only go so far.”

Haines said Napoli’s numbers have also decreased as the firm files more and more cases in other dockets.

Defense attorney Kent Plotner of the Heyl Royster law firm in Edwardsville said defense firms have noticed there hasn't been a “large influx” of filings compared to last year and agreed that it could be attributed to the decline in new lung cancer cases.

Plotner pointed out that there continues to be more lung cancer cases set for trial than in years past.

However, he said that despite the rise in lung cancer cases set for trial, the limited number of available trial slots in the crowded docket could encourage plaintiffs to take their cases elsewhere.

Defense attorney Brian Huelsmann of HeplerBroom noted that despite the drop from last year’s numbers, roughly 25 percent of all asbestos cases filed in Madison County are still lung cancer cases.

He added that while Napoli boasts less filings this year, its percentage of lung cancer cases is significantly higher than its competitors Simmons and Maune Raichle, which continue to file mostly mesothelioma claims.

In previous reports, the Record has quoted sources stating the value of settling a mesothelioma claim is up to $3 million.

Huelsmann explained that Madison County has a reputation for congestion in its asbestos docket as trial slots fill up.

According to a 2014 docket analysis, 972 first time and 855 continued cases have been given new trial settings this year, with some cases continued multiple times.

In other words, more than 1,800 cases have been set for trial this year.

Beyond this year, the asbestos court, headed by Associate Judge Stephen Stobbs since last October, has established 701 new trial settings for 2015 plus 190 cases continued from this year. By the end of the year, those figures will have increased.

Furthermore, there are already 100 new trial settings for 2016.

Huelsmann said that approximately 20 to 50 asbestos cases are set for trial each week - many more than there are judges in Madison County. (There are nine elected circuit judges and 13 appointed associate judges).

As a result, those numbers might be discouraging for plaintiffs when choosing a docket for their asbestos cases, he said.

In a previous interview, Huelsmann said that under Stobbs' direction, plaintiffs have been required to prioritize the cases they would want coming up on the next trial docket. He said Stobbs asked plaintiffs' firms to focus on their top five cases for each trial docket so defense firms know what to prepare for.

Before Stobbs took over, a firm could bring 20 or more possible trial cases to each docket, resulting in great expense and “a logistical nightmare” for defense firms as they try to prepare for each, Huelsmann said.

He added that before prioritizing was mandated, all cases presented as possible trial cases were a threat.

“Trying to get the plaintiffs to prioritize their cases, you know,” Huelsmann said, “I think that’s a step in the right direction.”

As far as the number of cases pending in today's asbestos docket, Huelsmann said that theoretically it could take four to five years to conclude every case currently if no more new cases were filed.

He also posited that the decrease in new filings could perhaps be attributed to the nine straight defense verdicts in Madison County since 2004, which could be discouraging for plaintiffs.

“Madison County jurors are not going to be handing out money left and right as plaintiffs can’t prove their case,” he said.

While Madison County has seen a year to date decrease in total filings, not much has changed regarding where the plaintiffs are coming from.

Numbers show that 90 percent, or 590, new case filings through June 30 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.

Huelsmann said that while the numbers so far this year are less than previous years, the 656 new cases still puts Madison County on pace to reach over 1,200 cases by the end of the year, which still doubles the numbers from 2004 to 2008.

“So while they’re not at the historic record numbers,” he said, “I anticipate we will still be in the top five largest filings.”

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.