Asbestos critics see signs of hope in Madison County

Steve Korris Jun. 17, 2005, 3:20am

For years Madison County's asbestos docket was seen as a model of swift and favorable resolution for plaintiffs, attracting trial attorneys from near and far to file grievances for the recruited ill. An ensuing traffic jam has helped earn status as Number One judicial hellhole in the nation.

But recent events have raised hopes of the court’s critics.

"Judges are assuring proper discovery and applying rules of evidence," said Victor Schwartz, one of three authors of an article on Madison County asbestos litigation, published last year by Washington University's Journal of Law and Policy.

"There are signs of hope," Schwartz said. "We will be the first to praise somebody who is trying to restore fairness and balance."

Co-author Mark Behrens said that two recent defense verdicts in three weeks returned by Madison County juries is a turnaround. Before this year, he said, juries returned two of the largest damage awards ever in favor of plaintiffs.

"People in the county are starting to learn what is happening," Behrens said.

Behrens added that a juror in one of the defense verdicts said he was tired of the county’s reputation.

According to the Washington University article, plaintiffs filed about 9,000 asbestos suits in Madison County from 1985 to 2003. The number of suits rose sharply from 65 in 1996 to 884 in 2001, the article stated.

Schwartz, Behrens and Kimberly Sandner, all of Shook, Hardy & Bacon in Washington, D. C., wrote that the court allowed suits from plaintiffs with no relation to the county. They recommended that the court dismiss all those cases.

Circuit Judge Daniel Stack has dismissed some suits of outsiders since taking over the asbestos docket from Circuit Judge Nicholas Byron nearly a year ago. (Circuit Judge Philip Kardis was named asbestos chief after Byron, but only held the position for days).

But Stack has allowed most cases of outsiders to proceed.

"I heard that the new asbestos judge has dismissed some cases brought by non residents," Behrens said. "I would consider it a modest improvement, but it is an improvement."

"What about the cases that are being filed today?," he asked. "The vast majority come from non residents."

Behrens said judges thought they were doing the right thing by moving cases quickly.

"They saw it as a tunnel," he said. "The faster you drive, the faster you can get through the tunnel.

"It doesn’t move you through the system more quickly. What it does is, it attracts more cases."

He compared it to a new freeway, Interstate 66, in Washington.

"It’s a traffic jam, and at rush hour it goes about one mile per hour," he said. "It looked so efficient that everybody wanted to take advantage of it. And it got swamped.

"Once more claims come in, judges feel under even more pressure to move the docket along quickly. The test is not whether it’s fast. The test is – is it fair?"

Behrens said the authors of the article received little information from defense attorneys in Madison County asbestos cases. He said that reforms began in Mississippi’s Jefferson County, another "judicial hellhole," because defense attorneys were willing to speak out.

"In Madison County that has not been the case," he said. "We found it very difficult to get information for our article. There is such fear of retribution."

On its way to #1

In the Washington University article, authors wrote that plaintiffs willingly gave up the "home field advantage" to sue in an inconvenient and far away forum, "because they perceive that they will receive especially favorable treatment."

They wrote that the court’s case management techniques disadvantaged defendants and gave plaintiffs unprecedented control over resolution of a claim.

"Madison County judges virtually never grant summary judgment despite the plaintiff’s failure to identify the manufacturer of the product that allegedly caused his or her harm," they wrote.

"In fact," they wrote, "we understand that many major defendants have never won a summary judgment motion in a Madison County asbestos case.

"(The court) routinely delays deciding or denies summary judgment motions upon plaintiff counsels’ mere oral assertions that he or she will produce the missing evidence at trial."

Most plaintiffs’ attorneys do not even bother to respond in writing to summary judgment motions of defendants, the article stated.

Refusal to grant summary judgment meant that virtually every claim could proceed to trial, they wrote, forcing defendants to settle claims regardless of merits to avoid a possible "lightning strike" at trial.

The court routinely denied defense requests to limit the scope of discovery to the products at issue, they wrote, requiring defendants to respond as to all of its products and facilities regardless of their connection to the case.

They wrote that defendants received notice of trial a short time before trial.

"The routine practice in Madison County," they wrote, "is for a defendant to show up the morning of the trial and find out which cases will be going to trial that day."

Defendants faced more obstacles at trial, they wrote.

"In a few instances," they wrote, "the court has even stopped defendants from introducing evidence that might demonstrate that the plaintiff’s injury was caused by something other than asbestos."

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