That 90 percent of asbestos cases in Madison County are filed for out of state residents is not the only problem facing a docket that has doubled over the last four years.
Defense attorneys say that one of the most critical ways to shrink what has become a national asbestos docket would be to reduce the number of cases set for trial during each trial week.
“If we could just get some relief with the trial slots that would help with the jurisdiction” said Lisa LaConte, defense attorney with Heyl Royster in Edwardsville.
LaConte said that the availability of trial slots and the fact that forum non conveniens motions filed by defendants have been denied in Madison County work together to create an attractive place for plaintiffs.
“It doesn’t boil down to one issue,” she said. “All issues build on each other.”
Calling trial settings the “trigger,” LaConte said that as long as the local court maintains its current practice of setting sometimes 50 cases or more for trial on any given week, more lawsuits will be filed there. As more cases are filed and less cases are transferred to more appropriate jurisdictions, more trial slots are required to resolve the excessive number of case, creating a vicious cycle, she said.
“If you were not pushing so many cases through the trial process, it would make this a more equal jurisdiction,” LaConte said. “There would be no real incentive to bring them here, because there is no fast track to a trial date."
Defense attorney Brian Huelsmann of HeplerBroom agreed, saying that when out of state cases remain in Madison County, a larger number of trial settings are created as a result.
“That is where it all stems,” he said. “If the cases are not getting dismissed on forum, they get trial settings.”
“That has been the issue for a long time,” he added.
LaConte said forum non conveniens motions are one of the primary reasons Madison County’s asbestos docket is one of the largest in the nation, but the most significant problem is the number of cases set for trial every year.
Huelsmann said that as of Oct. 15, 820 first time trial settings and 254 cases continued from the 2014 trial docket have been set for 2015. That makes a total of 1,074 cases set for trial for 2015 with two and a half months to go in 2014.
Because there are still several trial dockets remaining yet this year, more cases will get bumped to 2015, raising the number for next year.
“I expect there will be another 100 or more cases getting continued to next year, as well,” he said.
That would put 2015 on track for roughly 1,100 to 1,200 trial settings in a jurisdiction where there are 30 trial weeks and 20 judges - only one of which presides over the asbestos docket.
Looking even further ahead, there are already 256 first time trial settings scheduled so far for 2016.
He said that while 99 percent of cases settle - especially in Madison County where there has been an average of one trial per year for the last decade - the number of cases going to trial is likely to increase, especially as lung cancer cases approach their trial dates.
“If there are more trials, I don’t think the county is going to be able to handle it,” he said.
Madison County saw a record number of new filings in 2013 - at 1,678 - mainly due to an influx of lung cancer cases. While the number of new cases may decline somewhat this year, the total will likely exceed 1,200.
With that level of new cases, Huelsmann said roughly 35 cases would be set for trial per trial week with potentially 50 or 60 cases towards the end of next year.
“While the numbers may not be as much as before when we saw more cases, we are still going to see more filings,” Huelsmann said.
LaConte added that even if filings are slowing down, the pace at which those cases are being set for trial is not.
She agreed that a big question isn’t what is wrong with Madison County’s trial slot system, it’s how to fix the problem.
“The real key question is, well, how do you fix it and what does that really mean?” she said.
She believes that to fix the docket, the court would need to lessen the number of cases set for trial each week to a more reasonable number and the attorneys involved would need to abide by those limits.
In an effort to control the massive docket, Associate Judge Stephen Stobbs has been trying to narrow the number of trial slots each week in accordance with the standing order, which established that a maximum number of 19 cases could be set for trial on a given jury week – significantly lower than in previous years when more than 50 cases would be set for trial each week.
“It’s something that the defense bar has been pushing for him to stick to the limits in the standing order,” LaConte said.
LaConte added that the current system is difficult to manage for both sides as plaintiff and defense attorneys have a tough time preparing for all of the cases that get a trial date. It also can be costly, she said.
In fact, she said defendants incur much of their expenses after a case is set for trial, because it requires depositions and discovery.
“There’s a lot of activity once there’s a trial date,” LaConte said.
Furthermore, all of that activity must be done for each case set that week.
Huelsmann said Stobbs created the priority system to help parties prepare for cases that could actually go to trial each week. Plaintiffs’ attorneys were told to label their top five cases.
“Some firms are pretty good about it,” he said. “While other firms come in and rattle off 15 or 20 cases.”
However, LaConte said she and several other defense attorneys are advocating for narrowing the standing order down to 10 cases per trial docket to improve efficiency and aid in preventing outside cases from flooding the jurisdiction any more than they already are.
During the HarrisMartin Midwest Asbetos Conference in St. Louis on Sept. 18, plaintiff attorney Sara Salger of Gori Julian & Associates addressed how Stobbs’ is working to bring the asbestos docket to a more manageable position by decreasing the number of cases set for trial during trial weeks.
She explained that Stobbs has implemented a new removal method which requires plaintiffs’ attorneys to remove one of their cases from the trial docket if they are asking to add another case onto the trial docket.
However, Selger said removing cases from the trial docket has created a “backlog” as cases are getting pushed back.
As more cases get continued so that living mesothelioma claimants get priority on the trail docket, a mountain of postponed lung cancer and wrongful death cases are building up, which all must eventually be resolved.
“At some point in the future, we are going to have a group of cases that are going to need to be addressed and that have been on file for a period of time,” LaConte said.
LaConte also said that making sure cases set for trial involve local residents will help improve the docket’s functionality, which ties back in to the connection between forum non conveniens motion practices and trial slots.
“In general, there is an inclination to make decisions that continue to create a jurisdiction that is a magnet for out of state claimants,” LaConte said.
Requests for comment by plaintiffs’ attorneys were all left unanswered.