Appellate court orders Byron to allow substitution

Steve Gonzalez Jan. 3, 2007, 7:49am

Nick Byron

Joe Orlet

The Illinois Appellate Court ordered Madison County Circuit Judge Nicholas Byron to allow a benzene defendant's motion for substitution of judge he denied last year.

"The trial judge was required to grant the motion," the court wrote in a "Rule 23" order filed Dec. 15. When a decision does not set precedent, the court can issue a Rule 23 order--one not widely distributed and generally delivered just to the plaintiffs' and defense attorneys.

Byron denied Occidental Chemical's April 2006 motion for a new judge as a matter of right even though the plaintiffs' attorney did not object to the motion.

Eugene Leek of Kentucky filed suit against Occidental and 10 ten others in 2004, claiming he was diagnosed with multiple myeloma, a disease caused by benzene exposure on Nov. 26, 2003.

Leek and his wife, Sherri Leek, sought damages in excess of $200,000 claiming Eugene's exposure to benzene was foreseeable and should have been anticipated by the defendants.

Randy Gori of Edwardsville represents the Leeks.

On April 26, 2006, Joe Orlet and Brandan Mueller of Husch & Eppenberger in St. Louis filed the motion for substitution.

Byron denied the order three weeks later basing his decision on the fact that agreed orders had been issued in the case. A judge can deny a motion for substitution if a substantial ruling has been made in a case.

Byron also stated that Occidental waited too long to file its motion.

Occidental appealed on May 12, 2006.

The appellate court wrote, "Other than continuing previously set pretrial conferences, the only rulings made by the trial judge were the entering of a standard case management order and an order directed to Occidental to comply with a discovery request."

"Nothing in the record indicates that Occidental filed its petition to avoid a trial or to delay a trial," the court wrote. "The record clearly shows that the trial judge had not ruled upon any substantial issue in the case, nor was there anything to indicate that Occidental was attempting to engage in judge shopping."

Justices Stephen Spomer, Thomas Welch and James Donovan wrote the order.

They remanded the case back to Byron with instructions to grant the substitution.

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