High value Madison County asbestos cases like 'steak of the salmon'

The Madison County Record Dec. 18, 2008, 11:36pm




As the Madison County asbestos docket continues to rise following a brief, yet dramatic two-year period of decline, many legal experts say the real growth spurt is just getting started.

Like two sides of the scales of justice, some states have lightened their asbestos dockets through legislative and legal reform, causing a direct effect on others increasingly weighed down by an influx of new claims.

From 2004 to 2006 Madison County looked to be one of those lightening the load. The number of new mesothelioma cases dropped from a high of nearly 1,000 per year to a low of just above 300.

But the shift was just a pause before the new growth really set in. As 2008 comes to an end, the number of new mesothelioma cases could exceed 700 for the year.

The asbestos gold rush was so strong that Madison County had far more case filings than nearby Cook County, said Ed Murnane, president of the Illinois Civil Justice League.

"The rise in asbestos litigation in Madison County is trouble," Murnane said. "Especially considering the county's history with the litigation since 1986 and the abnormal statistics that show per capita filings at outrageous levels."

The ICJL's research shows that in 2003 Madison County had 3.66 cases per thousand residents, while Cook County had just .027 cases per thousand residents.

"Statistically, there were 135 times more cases filed in Madison County than Cook County in 2003," Murnane said, adding that the recent rise could rival those numbers.

As it has been for decades, Madison County is now very much open for business for plaintiff's lawyers seeking large settlements.

"Illinois has always been a breeding ground for asbestos cases," one Chicago-based defense attorney said. "You have more and more out of state firms getting in touch with local Madison County counsel to file cases there."

Open for business

During the week leading up to Thanksgiving, 13 new asbestos cases were filed in Madison County, which compared to the stats for the year, was not a particularly heavy week.

The list shares two trends, something observers see more and more as these cases are filed. First, many of the plaintiffs do not live in Madison County. Secondly, their lawyers are either from SimmonsCooper or Gori, Julian and Associates.

Just two of the thirteen plaintiffs give a recorded address of Illinois. All 13 are represented in some fashion by one or the two local firms.

Murnane said Gori, Julian and Associates is a big part of the reason the Madison County docket is again on the rise.

"Randy Gori and Barry Julian have left their former firms to join forces in a new firm, which incidentally has purchased office space in the most prominent location across the street from the Madison County Courthouse," Murnane said. 'This leads us to believe asbestos litigation has literally returned front and center to the Madison County courthouse."

A Chicago-based defense attorney said the new firm's rapid growth is fueled by cases from jurisdictions that have enacted legal and judicial changes to make them less appealing for plaintiff's attorneys to pursue their cases.

"Gori and Julian are on track to file about 100 cases, give or take, by the time the year is up," said the attorney. "Some are local, but many of their cases are from people in the plains states. I think the real increase is coming from Gori and Julian."

Simply put, plaintiff's attorneys across the country have become adept at finding states with a legal system that favors them. Whereas Texas was once a place where billions of dollars of asbestos settlements were generated, legislative and judicial reforms enacted since 2003 have brought the entire industry to a screeching halt. A firm like Baron & Budd, which earned hundreds of millions in fees during the 1990s, recently laid off more than 100 employees.

But those firms simply did not stop doing asbestos cases, they instead partnered with firms in friendlier climates, like Madison County, and Gori, Julian and Associates.

Case in point: Two of the 13 cases filed in the week prior to Thanksgiving, were filed by Gori, in partnership with The Lanier Law Firm of Houston, Texas.

"As the laws change in certain states, they just can't go there any more," the Chicago defense attorney said. "I mean every Michigan case ends up in Illinois. Same thing in Wisconsin. No plaintiff's attorney wants to go there."

Several states like Michigan, Texas and Wisconsin have enacted tough laws against tactics like combining cases, proving the case is in the proper forum and increasing the burden of proof of the cause of disease. Illinois in particular, and other states like Delaware and California, do not have these laws, making the job of getting a major settlement much easier.

The end of Mass Screenings

Ironically, one of the biggest so-called victories for tort reformers has inadvertently helped increase the asbestos docket in Madison County.

Asbestos settlements reached a fevered peak near the end of the century, forcing more than 70 major companies into bankruptcy. Cases were filed by the hundreds of thousands across the country, due in large part to a strategy called mass screenings.

Companies, contracting with legal firms, recruited new clients in mobile testing units that set up shop outside of factories. Workers could be given a quick test – many of which were later found to be fraudulent – to determine if they were suffering any effect from asbestos exposure.

The number of claims involving people who were not sick took off between 2000 and 2003, according to Mark Behrens, a Washington, D.C.-based attorney, who says "there were around 100,000 cases filed per year. Most of the estimates were that as high as 90 percent were people who had nothing wrong with them."

Most of these cases came from mass screenings, which peaked in 2000, according to a study by Dr. Charles Bates and Dr. Charles Mullin entitled, "State of the Asbestos Litigation Environment."

According to their study, monthly nonmalignant diagnoses topped 7,000 twice in 2000. Most months stayed steady with roughly 3,000 to 5,000 new claims a month in 2001 and 2002, but had dropped sharply beginning in 2003. By the end of 2003 new claims from nonmalignant diagnoses had dropped, and has since stayed mostly below 1,000 a month.

"Apparently mass recruiting firms were already exhausting the supply of readily recruitable claims before the sharp decline in claims recruiting mid- 2002," the authors wrote.

But Behrens said another factor had come into play around that time, one he was intricately involved in.

"I was hired back in 2000 by insurers to look at this mess and see what could be done," he said. "I had never done anything in asbestos, but I think that's why they came to me, because I hadn't been beaten down if you will. They wanted us to think outside the box a bit more."

Behrens said he began an intensive search for "success stories" of tort reform.

"I started interviewing lawyers all over the United States and these lawyers in Chicago were telling me about this inactive docket," he said. "The inactive docket was simply a list of cases that were put on suspension, in other words they were never going to trial until the litigants could show they were sick."

Behrens offered the docket as a solution that gave genuinely sick cases priority, while keeping the non-sick cases off the docket.

"It seemed really fair to me," he said. "I started writing about this great idea in Chicago that nobody seemed to have adopted. A judge in New York read our article and started an inactive docket. That was such a major jurisdiction that it gained attention all over."

Judge Daniel Stack of Madison County said the court's standing order is a "local way of doing business here. Those cases of the real sick get expedited."

Behrens said he and other tort reformers pushed the idea commonly used in Madison and Cook Counties as a model for legislation in active asbestos states.

"That gave us the idea that if this works in a county setting like Cook County, why not do it at the state level, but do it in legislation."

The bulk of cases opened from clients discovered in mass screenings were often combined into one large case so that plaintiff's attorneys could negotiate a settlement per case that often added up to millions of dollars. Many non-sick cases were lumped together with the sick cases.

To stem the tide, some state legislatures approved new laws that blocked fraudulent cases piled up from years of mass screenings. Mississippi limited joint and several liability cases in January 2003. Ohio Senate Bill 120 followed, also limiting joint and several liability cases in April. Texas House Bill 4 passed, which does the same as well as reforming venue requirements for consolidated trials.

Later in 2004, Ohio House Bill 292 instituted strict medical requirements for nonmalignant claims. Further legislation in Texas and Ohio continued reform efforts.

"It's been so successful that the number of cases brought by the non-sick has virtually dried up," Behrens said.

Uniquely Madison County

Despite the "success story" of some states, Behrens readily admits that Madison County remains a completely unique place, impervious to many of the trends in other areas. The blue collar community prone to awarding big settlements is also home to many who have been seriously injured in the workplace.

As such, Madison County attorneys have never been forced to rely on tenuous strategies like mass screenings or combining the cases of the sick and non-sick.

"To tell you the truth, the lawyers around here don't want to mess with those cases. There are really too many who are sick to waste time with those that aren't," Judge Stack said.

Reluctantly, Behrens agrees with Stack.

"Madison County … is always kind of an exception to the general rule that most plaintiffs aren't sick," he said. "The problem there isn't 100,000 cases of people who weren't sick, but few cases with substantial settlement value."

Madison County, Behrens said, is like the analogy of a bear finding such a large school of salmon that he needed only to eat the steak of the fish and toss the rest away.

"In Madison County," he said, "they can afford to eat only the steak of the salmon. There are so many plaintiffs that they can reach out and easily get, they don't need to bother with lesser value cases. If you can get one case and settle it for millions, you aren't going to waste your time generating 10,000 cases for thousands of bucks a piece."

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