What does the future hold for the nation’s busiest asbestos docket?
With 1,678 new asbestos cases filed in 2013 and 1,563 in 2012 – figures that eclipsed previous records – Madison County is securely the nation’s epicenter for asbestos litigation.
“Current practices provide substantial benefits to the plaintiffs’ bar as well as the defendants’ bar, so there’s little reason to expect change, but that would depend on how the new judge would assess the situation,” said Lester Brickman, law professor of the Benjamin N. Cardozo School of Law at Yeshiva University in New York.
Brickman was referring to Associate Judge Stephen Stobbs, who was appointed as the new Madison County asbestos judge last October.
“It’s interesting,” added American Tort Reform Association Communications Director Darren McKinney. “I don’t see anything on the horizon now.”
Defense attorney Kent Plotner of the Heyl Royster law firm in Edwardsville agreed, saying the docket will likely continue with a volume it is seeing now.
As of March 24, there were 346 new asbestos cases opened in Madison County in 2014.
“It doesn’t appear that there is going to be a change in the number of cases that are going to be filed,” Plotner said.
Plaintiff attorney Patrick Haines of Napoli, Bern, Ripka & Shkolnik – a New York-based firm that opened in Madison County in 2012 – had another take on the docket, saying it has already changed over time and will continue to do so.
“Asbestos litigation continues to evolve, it’s never constant,” Haines said. “I’ve been doing it for 20 years and it’s very different from when it started.”
The Napoli firm is responsible for having filed about 25 percent of the new cases through March 24, or 86 of them. Only the Simmons firm of Alton filed more in the same period, 88.
“It’s definitely going to evolve, that’s just fine,” Haines added. “It’s not static.”
As Madison County’s asbestos docket continues to get bigger, one question is whether it can sustain its growth, specifically if more cases go to trial.
Since 2005, Madison County has averaged about one trial per year. The county could handle more trials than it’s seen in recent years, but not too many more, defense attorney Brian Huelsmann of HeplerBroom confirmed.
In order for both parties to prepare, there is a limit on the number of cases that can be reasonably set for trial.
“You reach a point where you can’t conceivably get them ready beyond a certain point,” Plotner said.
According to Illinois law, courts are required to accommodate terminally ill claimants over 70 years of age, explained defense attorney Raymond Fournie of the Armstrong Teasdale law firm.
“Courts accommodate the laws’ requirements as much as possible, but there are physical limitations on what can be done,” he said. “At some point, if the volume gets too big, the system can no longer absorb and will start to crumble under its own weight.”
Looking to the future, McKinney expressed concern over the increasing number of lung cancer cases across the country, including Madison County.
He says the country has reached an epidemiological peak with respect to new diagnoses of mesothelioma cases, and therefore the focus will turn to lung cancer cases.
“It seems to me, that the asbestos bar will be increasingly driven to find other ways to milk this cow, as it were,” McKinney said.
Specifically, McKinney said that a majority of lung cancer cases can’t all be attributed to asbestos exposure.
“The plaintiffs with lung cancer making claims against asbestos defendants, virtually all of them were habitual cigarette smokers at some point in their lives,” McKinney said.
However, Haines said that plaintiffs’ attorneys recognize that numerous claimants diagnosed with lung cancer smoked cigarettes at one point, but in litigation claimants legally only have to show that asbestos was a contributing factor to the lung cancer.
“The lung cancer cases are not in any way frivolous cases,” Haines said. “It’s cancer that just happened to grow on the inside of the person’s lung as opposed to the outside of the person’s lung.”
Hope for Change
One hope for the type of change ATRA would like to see could come from Stobbs, who inherited what the group says is a docket that has been handled in a plaintiff-friendly way.
Since taking charge of the docket in October, Stobbs has implemented a priority system, requiring plaintiffs’ attorneys to select their top five cases most likely to go to trial each week. This allows defendants to focus on five possible trial cases rather than 20 or more.
Haines said he thought this was always the way in Madison County, but still commended the method as a “good way to handle” the system, adding that it “helps move the system along.”
“It always helps to give a priority system so resources can be allocated accordingly by the defendants,” Fournie agreed.
Plotner added that the priority system helps hearing days flow more smoothly.
“Prioritizing the top five allows some sense of a state of preparedness the cases need to be in for trial purposes,” Plotner said.
Fournie said he would like to see the priority system implemented earlier in litigation, allowing defendants to allocate their efforts sooner.
“I would hope that, as we continue going further along in the litigation, that the priority listings that the judge is requiring would be pushed a little farther away from trial,” he said.
A few states have looked to their legislatures for asbestos reform. Most recently, Wisconsin Gov. Scott Walker on March 27 signed into law a bill that furthers asbestos trust fund transparency. Wisconsin is the third state to enact such legislation, following reforms in Ohio and Oklahoma.
Andrew Cook of the Hamilton Consulting Group released a report called “2013 Civil Justice Update: Recently Enacted State Reforms and Judicial Challenges,” addressing transparency laws and legislation.
Some reforms include caps on noneconomic damages, priority laws for cases that need to be handled more quickly and protection for innocent companies that purchase companies that once manufactured asbestos-containing products.
Cook explained that such legislation generally only gets passed in Republican-controlled legislatures.
Illinois is and has been firmly in control of Democrat law makers.
“There are some legislatures out there who have started talking about that,” Huelsmann said. “You see that but it doesn’t seem to be going anywhere in the state of Illinois.”
Fournie said that while passing legislation could help provide guidance and establish structure, it can also create a more cumbersome situation.
He said legislators have to take into account all ramifications when drafting proposals, but some are unforeseen. They need to be sure that laws are going to be constitutional and fair.
“Legislation is always tricky in the legal arena, simply because there is always a right to redress grievances in a court,” he said. “Some (states) have established a certain threshold for them to be filed and maintained in the jurisdiction.”
McKinney said reform is not likely to happen any time soon in the Illinois General Assembly.
“I don’t see with the current political make-up in Springfield, I don’t see such legislation happening,” he said.
Brickman agreed, saying, “I don’t think the Illinois legislature, which is controlled by the Democrats and the unions, is going to pass any legislation that is against the interest of the plaintiffs bar, given the current make-up of the legislature.”
Huelsmann said the future of the Madison County asbestos docket will rely heavily on how forum non conveniens hearings are handled.
Because Stobbs has only been presiding over asbestos cases since October, Huelsmann said he has not yet had to rule on many of these motions yet.
Plotner agreed such hearings could limit the number or types of cases filed in Madison County that “arguably have no connections.”
Ultimately, McKinney said he didn’t anticipate any changes in the near future, but expressed hope that reform could improve the county’s reputation.
“You never want to give up hope entirely,” McKinney said. “Hope for the best. Hope people will get around to doing the right thing.”