Bottom line in asbestos: A matter of convenience

The Madison County Record Jan. 15, 2009, 9:00am



Despite what some consider to be a stacked deck against defendant attorneys in Madison County, rarely are asbestos cases -- even the growing number from out-of-state -- challenged by defendants to move them to a more convenient venue.

Following a two-year dramatic decline, asbestos cases are again on the rise in Madison County, having reached 639 in 2008, more than double the total of 2006.

The county court, criticized as a clearing-house for asbestos cases, remains a favorable destination for plaintiff's attorneys, legal observers say.

The issue of forum, i.e., the determination of which jurisdiction a court is heard and which state's laws apply to a given case, is an increasingly important issue in asbestos litigation. More states have enacted stringent tort reform laws that make it more difficult for plaintiffs to win large settlements.

But some states still have laws considered highly favorable for plaintiffs.

"Texas is basically gone. Michigan is gone. Ohio is just not worth it any more. No plaintiff attorney would go to Wisconsin either," said a Chicago defense attorney who asked not to be named. "It's either Delaware or Illinois or California."

This may help explain the rapidly growing number of cases - many with out-of-state plaintiffs -- in Madison County. In December, 53 new asbestos cases were filed and only seven of the plaintiffs were Illinois residents. SimmonsCooper of East Alton filed the most by any one firm and almost half of the total -- 24.

Most asbestos cases with out-of-state plaintiffs are never challenged in a forum non conveniens hearing by defense attorneys.

"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," said attorney Kirk Hartley, a partner at Butler Rubin in Chicago and one who defends asbestos cases in Madison County.

The obvious question is "Why not?"

But the answer, from many legal experts, is a complicated mixture of legal strategy, cost and even in some cases, relationship between defendant and plaintiff attorneys.

"We in defense have just not bothered to proceed with forum non conveniens because it's just not worth it," said the Chicago attorney who asked not to be named. "It's just a huge pain."

Despite a handful of high-profile rulings by Judge Daniel Stack in 2004 when he was first named presiding judge of the county's asbestos docket, rarely do forum hearings successfully change the venue away from Madison County. That may be due in part to a defendant company by the name of John Crane Inc.

The role of John Crane

John Crane Inc. is a mechanical seal manufacturer with offices in Illinois that calls itself "the leader in sealing solutions." The company was also a manufacturer and supplier of asbestos gasket material, valve packaging, rope and tape, which makes it a popular defendant in many asbestos cases.

But unlike many of the more than 80 companies that have been driven into bankruptcy under the weight of billions in asbestos-related settlements, John Crane has proven to be far more resilient over the years, often avoiding awards in Madison County courts.

A Madison County Record report in 2007 found "plaintiffs name defendant John Crane … as the reason for filing their suits in Illinois. However, John Crane is almost always dismissed from the suits without having to pay any damages."

One defense attorney in such a case said during a rare Madison County asbestos trial in 2005 that John Crane made a "sweetheart deal" in which no evidence was presented against the company, actions that he said "borders on fraud," according to court testimony.

Such deals, if they do exist, feed the rumor mill in Madison County legal circles. Eight attorneys and legal experts from Illinois were contacted for this article, including attorneys who represent or have represented John Crane. Few even responded to the numerous messages and all but one declined to comment.

"For a variety of reasons … I am not comfortable saying anything on this right now," one Madison County defense attorney said when asked about John Crane.

Still as one Chicago defense attorney said, John Crane has been very successful in avoiding awards in Madison County.

"I was in court down there a few years ago," the attorney said, "and the issue of forum came up. The attorney for John Crane stood up and said 'We believe Madison County is convenient,' and everyone in the court started laughing. That should tell you what people think."

Judge Stack said a company like John Crane is often named in virtually every asbestos-related suit early on.

"With legal malpractice the way it is," Stack said, "the lawyers have to do this. The clients are coming through the door and they are dying. So to cover yourself you sue everybody and then weed them out, because if you don't do that you might be committing a malpractice."

But he also admitted that John Crane is a prime target for plaintiffs' attorneys.

"They are an Illinois defendant that gives you jurisdiction and venue in this court," Stack said.

Of the 53 asbestos cases filed last month in Madison County, John Crane is named in all but four of them.

In the 24 cases SimmonsCooper filed in December, John Crane is named as defendant in 23 of them. Only two of the 24 plaintiffs were from Illinois. Of the 23 cases, SimmonsCooper claims venue is proper because John Crane is an Illinois resident.

When asked if he'd ever seen John Crane challenge having the case in Madison County, Stack said no. "I'm not sure what that means," he said. "Anytime I have a forum amendment, they make that argument that they are a local company and want to settle it right here."

John Crane's current defense attorney, Ed Burns of O'Connell, Tivin, Miller and Burns in Chicago, did not respond to phone calls and e-mail attempts for comment on this article.

Out of state verdicts

While John Crane's role in Madison County may be cause for speculation, court cases last year outside of Illinois probably proved more difficult for company officials.

In March, John Crane was one of three defendants named in a verdict that is among the largest ever awarded in Philadelphia. The jury, according to court documents, awarded more than $25 million in damages from three defendants, including John Crane.

Again, venue played a key role in the case. According to published reports, the case was unusual in that defense lawyers convinced the judge that Kentucky law be applied. Kentucky uses a model of punitive damages in which each defendant in the case, even those that settled prior to trial, are given a specific percentage of the overall liability.

"The thing kind of backfired on them because the jury held all of the settled defendants zero-percent responsible," according to the plaintiffs' attorney Benjamin Shein.

But John Crane avoided the worst of the award. Punitive damages against the other two defendants approached $20 million. John Crane, according to published reports, by way of stipulation, was not part of the punitive damages phase of the case.

In September, a Virginia jury awarded a plaintiff diagnosed with mesothelioma $4.39 million from John Crane.

The plaintiff, John Koonce, claimed he was exposed to Crane's asbestos products from 1968 to 1971 while working in the Norfolk, Va., shipyards. His job included scraping off old gaskets with chisels and removing asbestos residue with a power grinder, according to court documents.

John Crane, the lone defendant to go to trial, argued it supplied only a small amount of its products to the U.S. Navy and that its products do not release enough fibers to cause disease.

Also in 2008, a Baltimore jury awarded $15.3 million to a man who worked in the Maryland shipyards during the 1950s. After a two-week trial, the jury decided the rope made by John Crane contributed to the man's mesothelioma diagnosis more than 50 years later.

The problem of settlements

All three of John Crane's cases cited above did go to trial, something many defendants avoid at all costs. Settling a case instead of taking it to court, some legal experts believe, fuels the fire of asbestos claims.

During a 2008 national conference on asbestos litigation, Judge Stack told attorneys that defendants could bring the rise of cases to "a screeching halt" by refusing to settle any case and taking them to trial.

"It wouldn't take long for this court to determine that the cost in juror time and court time would probably require a closer scrutiny or a different rule regarding forum," Stack said.

But the risk in taking cases to trial, especially in Madison County known for its pro-plaintiff juries that give large awards, is something few defendants want to do, at least so far. The expense of trying a case is significant, especially when the award could be far larger than a settlement.

"Judge Stack has said, all the defense has to do is take it to trial," a Chicago defense attorney said. "But, basically, no one big enough has said 'This has got to stop.' It's a lot to ask a certain defendant who is willing to step up and take that risk."

Often lost in the tense discussion about billion dollar settlements for plaintiff's attorneys is the role of defense attorneys, who also earn millions in proceeds defending corporations in asbestos lawsuits.

William Skepnek, a Kansas attorney who made national news taking on plaintiff attorneys in Texas in the late 1990s, said the entire asbestos system contributes to the problem.

"I think there is a tremendous amount of blame to go on to both sides," Skepnek said. "I'm very critical of the plaintiffs and the defendants. A lot of the complaints from the defendants are sort of self-inflicted."

Skepnek said despite all the talk of tort reform or change, the millions earned in legal fees for both sides of the bench continues to be a strong incentive to maintain the status quo.

"It didn't go away, it's not going to go away," he said. "It's too good a deal for the plaintiffs firms and it's a good deal for the defense firms. And they aren't litigating anything."

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