Asbestos rise in Madison County could signal return to 'old school' tactics

The Madison County Record Dec. 11, 2008, 11:38pm





It's a fairly typical day for Madison County Judge Daniel Stack as he scans his docket while talking on the phone prior to heading into court. He tries to schedule an appointment, but readily admits it might be tough with Christmas events looming and another asbestos case in need of a jury.

"Call me this afternoon," he says. "If this case doesn't settle, it might be tough to get this scheduled, but I'll know more later."

The case, one of more than 1,000 currently active on the Madison County docket, is settled that afternoon. Judge Stack schedules his appointment for the next day.

According to an informal survey by the Madison County Record, asbestos lawsuit filings in the county are again on the rise. From a peak of 863 (and 80,000 defendants) in 2003, annual filings fell to 266 in 2006 before beginning their current ascent.

So it has gone: 398 asbestos filings in 2007 and 500 plus in 2008, with a month still to go.

"We had a drop," Stack said of the asbestos docket in Madison County shortly after he took over. "A big drop."

As for the rise, Stack says he isn't concerned.

"The asbestos dockets all over the country are on the rise," he said. "Wherever there is a docket the case numbers are going up."

The changes in the court docket are mostly ebb and flow and "business as usual," according to Stack, as cases come and go as a matter of convenience for lawyers serving both plaintiffs and corporate defendants.

"It is easier for them to come here where all this is set up," Stack said. "It is easier for all involved. If the plaintiff comes from some small town in Iowa, it's a lot easier for them to all come here. So they tend to pick a place like (Madison County), to gravitate toward us."

That gravitational pull has long been a source of angst for the business community in this industrial region, home to juries known for their pro-plaintiff largesse. And while convenience certainly plays a role, so does the appeal of a home-court advantage for plaintiff's attorneys with a record stretching back decades. Convenience also conveniently means a propensity for bigger settlements.

"The rise in asbestos litigation in Madison County is troubling," said Ed Murnane, president of the Illinois Civil Justice League. "Especially considering the county's history with the litigation since 1986, and the abnormal statistics that show per-capita filings at outrageous levels."

Mark Behrens, a reform-minded lawyer from Washington, D.C., said many factors, from the pro-worker juries spawned by Madison County's blue collar industrial base, to the liberal political philosophies of judges elected with local plaintiff attorney support, have combined to earn Madison County its moniker.

"It created a perfect storm where all these things have come together to produce very big awards." Behrens said. "Most of the cases settle because many believe they can't get a fair trial, so they settle rather than run the risk and create a huge verdict, which creates an even higher standard for the cases you have to settle."

Behrens said asbestos lawsuit trends here are less "business as usual" than they are a contrived, deliberate pattern. Asbestos case filings grew with remarkable consistency for decades before increased scrutiny by Congress and the media led to a sharp decline starting in 2004.

It didn't last

"Considering their dramatic filing rates, there is not a decipherable 'ebb and flow' to the Madison County statistics," Murnane said, adding that per-capita, Madison County filing rates have always far exceeded every other county in Illinois.

Few believe that asbestos cases won't continue to rise in Madison County. Murnane noted that several high-profile local plaintiff attorneys have left their former firms to form a new one, prominently located on first street, steps away from the clerk with whom they expect to file their cases.

"This leads us to believe asbestos litigation has (literally) returned front and center to the Madison County Courthouse," Murnane said.

The battleground of Madison County

A native of Madison County, Stack understands the demographics at least partially responsible for creation of this unique legal venue over the past century.

The "Gateway to the West" of nearby St. Louis and Madison County historically tied together rivers and railroads and most lines of transportation, Stack said.

"There was just a lot of industry for a county this size," he said.

Big corporations provided blue collar workers with good jobs and good benefits, Stack said.

"With all that industry, there were and still are a lot of serious injuries, so you are going to get a cadre of lawyers representing those people," he said. "A lot of members of the bar association either worked in those places or their fathers did, as did I. I worked in a steel mill going through school."

The result was well-trained lawyers, sympathetic to the causes of the workers, armed with serious cases in which to sue their employers.

"This developed simply great plaintiff's lawyers, and great defense lawyers," Stack said.

Asbestos-related injury cases, rampant in such a large industrial community like Madison County, were streamlined so cases could be filed quickly and settled in bulk.

Stack said local attorneys - plaintiffs and defendant lawyers alike - bought a building and used it as a clearing house for all discovery documents. All lawyers have access to the trove, free of charge.

The courts also developed a standing registry of all cases filed with plaintiffs who had not yet become sick due to asbestos exposure. Those greatly ill, could be worked through the courts more quickly, Stack said.

Turning up the heat

This well-oiled machine churned more easily as time went on.

A 2004 special report by the St. Louis Post-Dispatch shed light on Madison County's asbestos docket, describing how dozens of attorneys would huddle in court twice a week negotiating million-dollar settlements like a fantasy baseball owner negotiates trades.

"This bi-weekly hearing is a key element of a system in Madison County that, over the past 20 years has quietly transferred billions of dollars from businesses and insurance companies to asbestos plaintiffs and their lawyers," St. Louis Post-Dispatch writer Paul Hampel wrote.

The story introduced readers to plaintiff's attorneys so comfortable with their favored standing they would lean on the bench in casual attire while swapping jokes with judges.

That's judges their campaign contributions helped put behind the bench.

At that time, Judge Nicholas Byron, who Stack followed onto the bench, refused to hear forum non conveniens, or hearings that determine whether a case is appropriately filed in that particular court. Virtually any asbestos case, from anywhere in the country, could be filed in Madison County.

Wealthy lawyers simply got too comfortable with a system too refined, according to Behrens.

Hampel quoted Morris Chapman, the 85-year-old so-called dean of plaintiff's attorneys in Madison County, registering disgust over what his profession had become.

"When I started practicing law, I thought I had a duty to take a case and represent the client first, and money was secondary," Chapman said. "That's been lost… They're taking the claims in and processing them in bulk, and making a ton of money and all for doing paperwork, if I may use the word.

"I'm outraged about that because it denigrates my profession," he said. "The law profession."

Chapman wasn't the only one outraged. Behrens said former U.S. Attorney General Griffin Bell said during a speech at Washington Law School that the FBI should investigate Madison County.

"These events brought a lot of heat to Madison County," Behrens said.

Judge Byron, who retired last month, eventually was taken off the asbestos docket in 2004, and replaced by Judge Stack, who promptly began hearing forum non conveniens to determine if cases had a legal right to be tried in Madison County.

"I said, 'Sorry, but either file them and I'm going to hear it, or don't file in this court," Stack said he told the attorneys when he took the bench.

He expected backlash, he said. Madison County lawyers had a reputation for having such a powerful lobby they could easily wage a campaign to remove a judge that didn't play ball.

"My father told me years ago, 'They can cook you, but they can't eat you,' " Stack said. "That was my attitude. I was pleasantly surprised. Almost every lawyer complimented me."

Stack said he heard three cases, including one from Massachusetts that had a plaintiff and company that had never been to Illinois. He ruled on that one and others that it was simply more convenient for them to be heard in other jurisdictions.

As could be expected, asbestos cases quickly dropped in Madison County.

"It's just an educated guess, but it had something to do with the fact I took over the docket and informed everyone that we were getting cases from all over the place that simply didn't belong here," Stack said.

Behrens is less careful in his assessment.

"He dismissed a couple of cases," Behrens said of Judge Stack. "And it was known it wasn't going to be a free-for-all anymore."

Behrens said the powerful plaintiffs, financed by years of multi-million dollar settlements simply shifted to other venues, most notably Delaware.

"They were laying low for a little bit," Behrens said.

Defense attorney Kirk Hartley, who represents clients in Madison County, said the change is not that clearly defined. Factors that determine where a forum is held is comprised of many complex factors like which law firm was originally hired by the plaintiff, the nature and degree of the injuries and where the corporation does business, just to name a few.

"Both Madison County and Wilmington, Delaware offer some attraction for some plaintiff's counsel in that they offer fairly predictable sets of trial dates and fairly predictable response from many, but not all, defendants," said Hartley, a partner at Butler Rubin in Chicago.

Regardless of the motives for seeking other venues, the drop in Madison County didn't last. Cases are again on the rise.

Rising docket

While statistics clearly demonstrate an asbestos uptick in Madison County, it is less clear in the legal profession whether that represents a return to old-school tactics so denigrated by the likes of Chapman, or whether it simply represents a new shift in asbestos litigation.

Stack said he believes it is the latter. He said he and a handful of lawyers talked recently about this rise, speculating on its cause.

The lawyers, Stack said, both plaintiff and defendant attorneys, point to three factors: 1) the medical profession has found more illness proven to result from asbestos fibers, 2) law firm advertisements have educated people better, resulting in more people coming forward with their cases, and 3) secondary exposure cases - i.e., cases of family of workers who were indirectly exposed - are gaining in prominence.

Time has also proven that despite Stack's willingness to hear forum challenges, the sheer convenience of the well-oiled asbestos machine is appealing to lawyers on both sides of the aisle in Madison County. Stack readily admits Madison County's experience, history and infrastructure makes it very easy to get these cases processed and resolved.

Hartley, a defense attorney, doesn't completely disagree.

"In some cases, and for a variety of reasons, some defendants and/or their insurers do not assert forum non conveniens challenges even though the challenge would probably succeed in moving the case to a different state or a different county within a state," Hartley said.

Defense lawyers also contribute to the rise of cases every time they settle a case rather than take it to trial, according to Stack. The practical reality of settling most cases means the burden on the court remains relatively low.

Without too many time-consuming and demanding trials, the court can continue to handle the workload, Stack said.

"The more trial dates you give a plaintiff attorney, the more apt they are to fill them," he said. "It's a practical matter quite frankly. Most of these cases do not go to trial. If more and more people pushed to trial rather than settling, the judges would have to reconsider the convenience."

Instead, the court does not have to tax their residents to be jurists, and the fees help alleviate the burden on the taxpayers, Stack said.

"These are people struggling with a horrible disease," Stack said. "I'm not going to kick them out unless they absolutely don't belong here."

All of which makes Behrens wonder if business as usual has returned to Madison County, particularly for plaintiff's attorneys.

"They know they've got a good thing going," he said.

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