Madison County's Dubious Distinction

Timothy O'Reilly Sep. 9, 2004, 11:41am

For over 30 years, the asbestos litigation crisis has rumbled through the United States, forcing many dozens of companies into bankruptcy, costing thousands of jobs and most importantly, delaying and reducing the compensation available to take care of asbestos victims.

Why should this matter here?

Because the abusive actions of Madison County courts have transformed the county into the epicenter of this judicial earthquake and contributed substantially to the asbestos litigation scandal.

Madison County courts are believed to have more asbestos cases involving mesothelioma (a rare cancer associated with asbestos exposure) than any other jurisdiction in the country.

Asbestos defendants report that they have more mesothelioma cases in Madison County than in New York City, even though Madison County's population is only 3% of New York City's!

And asbestos case filings in general have been rising. In 1998, 176 asbestos cases were filed in Madison County. Last year, the number jumped to nearly 1,000.

Of course, asbestos victims and their families deserve fair compensation for their illnesses from responsible companies. But what is happening in Madison County is not fair to defendants and is not serving the needs of the majority of asbestos victims who are actually suffering from asbestosis or cancer.

In nearly all of the asbestos cases slated to go to trial, the claimants have absolutely no connection to the county. They don’t live here, they don’t work here and they certainly were not exposed to asbestos here.

The same goes for the defendant companies—most do not operate in Madison County. In the court system, this abuse is called “forum shopping.” Plaintiffs’ attorneys bring their cases to Madison County because they believe that they can get a better outcome then filing in a more appropriate jurisdiction.

The Illinois Supreme Court has noted that these non-resident cases have “aggravated” the congestion in Madison County courts for actual residents. Defendants’ motions to have cases removed from Madison County because it is the incorrect forum are routinely denied by the court.

Why are these lawyers so bent on filing their cases in Madison County?

As a retired county judge told USA Today, “when people come from hither and thither to file these cases, there’s gotta be an inducement…They’re not coming to see beautiful Madison County.” The inducement is that the courts here play by different rules than the rest of the country.

First of all, how can a jurisdiction with limited resources and only 20 judges fairly preside over the huge volume of mesothelioma cases? The answer is it can’t be fair.

The average asbestos case in Madison County names more than 100 defendants. On any given trial day, a defendant must be ready to try more than 20 serious and complicated cases.

Defense attorneys only learn on the day of a trial which case will be heard. The Madison County courts also hamstring the defense by placing severe time limits on questioning or cross-examining the plaintiff.

Due to the docket management practices in Madison County that move a high volume of cases at a very rapid pace, defendants most often cannot prepare an adequate case-specific defense.

Other common practices include preventing defendants from arguing that a plaintiffs’ exposure came from another source and dismissing nearly every motion for summary judgment (in which a defendant notes that the plaintiffs’ attorney has not introduced a shred of evidence that the client has been harmed by the company).

With these kinds of ground rules, it should come as no surprise that very few cases go to trial and even fewer to verdict.

If this were a game, the referee would have cried “foul” a long time ago. Instead, the defendants have no recourse and are forced into “shotgun settlements.” If they don’t agree to a settlement, they run the risk of becoming a target defendant, which can result in a massive award to the plaintiff.

Last spring, we saw the most egregious example of how the wheels of justice have broken down.

A case was filed in Madison County on behalf of a mesothelioma victim from Indiana. He had absolutely no connection to the state or county.

Nonetheless, all but one of the 25 defendant companies agreed to settlements. One chose to fight the case. The jury came back with a $250 million verdict.

This is the largest verdict ever in the decades-long history of asbestos litigation and almost 100 times the average settlement in a mesothelioma case.

That kind of award reduces the resources available for all of the other mesothelioma victims in the United States.

This is a real threat. As U.S. Supreme Court Justice Anthony Kennedy noted last year, “This Court has recognized the danger that no compensation will be available for those with severe injuries caused by asbestos...It is only a matter of time before inability to pay for real illness comes to pass.”

The outrageous verdict also sent a message to all future defendants—settle your asbestos cases or else. It is no wonder that very few cases make it to trial.

While the actions in Madison County courts are having a national impact, there is also a local impact.

As the Illinois Supreme Court said, the incredible number of asbestos cases are clogging the courts and delaying cases involving local residents. The abuse in asbestos and other litigation has also tarnished the reputation of the county and the state.

Former Attorney General Griffin Bell says the court actions on asbestos in Madison County have made “a mockery of the judicial system.” Our country and Madison County deserve a fair and effective civil justice system.

Asbestos victims and their families across the U.S. also deserve a fair system that provides adequate compensation. The judges of Madison County must either institute reform themselves, or the state Supreme Court and the General Assembly must step in and fix this broken system.

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