Southern Illinois cases included in asbestos MDL: 94-year-old Tennesseean among plaintiffs

Steve Korris May 15, 2009, 12:21am


PHILADELPHIA – Rubert Ellington of Tennessee, 94-years-old, claims his former employers owe him $2.5 million for wrecking his health.

Ellington sued Illinois Central Railroad at U.S. district court in East St. Louis in 2007, claiming it exposed him to harmful asbestos from 1959 to 1979.

Lawyer William Gavin of Belleville added a claim that BNSF similarly harmed him from 1957 to 1959.

Gavin's complaint showed he was born in 1914.

On Thursday, May 14, Ellington answered his phone in Milan, Tenn. and said he couldn't hear well.

He heard a question about his age and said he was born Sept. 21, 1914.

In answer to the next question he said he couldn't hear. He hung up.

His claim will vanish unless Gavin rescues it from swift disposal by U.S. District Judge Eduardo Robreno of Philadelphia.

Robreno, responsible for pretrial proceedings in asbestos suits from federal courts around the nation, has cleared away claims at a rate of 6,000 a day this year.

He took over the docket last year and required each plaintiff to state a claim against each defendant rather than a blanket claim against all defendants.

Where many plaintiffs joined a single suit, he required a separate suit from each.

His process turned tens of thousands of suits into more than three million suits.

Defendants asked Robreno to dismiss about half the claims with a stroke of a pen, but Robreno preferred a thorough approach.

He asked defendants for "show cause" motions to get rid of claims one by one, and he set weekly hearings for hundreds at a time.

He enlisted a platoon of magistrates to preside over settlement conferences, and he started rounding up mediators.

On May 4 he appointed a mediator for 2,800 plaintiffs from Indiana, Wisconsin and Illinois, including more than 100 from the Southern District of Illinois.

On May 7 he focused on 22 Gavin plaintiffs and five clients of St. Louis lawyer Patrick O'Brien in the Southern District.

They all sued Illinois Central as their former employer.

Among those who listed home towns, not one lived in Southern Illinois.

Two O'Brien clients came from Heyworth and the others came from Decatur, Champaign and Tuscola, all in the Central District.

An O'Brien complaint lists a litany of more than 20 ways to cough, plus a lament of constant medical care.

The same words appear in each complaint.

Gavin sued on behalf of three and four men at a time, claiming common issues regardless of occupation, location or duration.

In one case he asserted common questions for a carman who started work in 1950, a laborer who started in 1953, an electrician who started in 1974, and an electrician who started in another city in 1972.

All four lived in Alabama.

In another suit Gavin asserted common questions for two engineers and two carmen whose jobs began from 1934 to 1971.

The complaint didn't say where the plaintiffs lived.

Another suit showed two Mississippi plaintiffs, one from Alabama, and one from Coconino County, Ill.

Illinois lacks a Coconino County, though it could use one. The real Coconino County, in Arizona, features the Grand Canyon.

Gavin didn't specify damages for any client but Ellington.

None of the cases remained in the Southern District for long.

Defendants asked the U.S. Judicial Panel on Multi District Litigation to transfer them to Philadelphia, and the panel granted transfers.

This February, defendants filed show cause motions asserting that plaintiffs didn't state specific claims as Robreno required.

O'Brien responded that he didn't receive notices to comply with Robreno's order and didn't know about it until defendants posted the motions at the Southern District.

Terry Brown of Belleville entered an appearance as his co-counsel.

Gavin didn't respond as smoothly as O'Brien.

On April 24 the court received responses on behalf of Gavin's clients, arguing that they met the requirements of the order in 2007.

The responses bore the signature of Hector Sandoval, of Roven-Kaplan in Houston.

On April 27 clerks declared the responses deficient because they didn't come through Sandoval's password.

The Gavin and O'Brien plaintiffs suits started from 2004 to 2007.

On May 11 a new case from Southern Illinois bubbled up on Robreno's front burner.

The Multi District Panel sent him a wrongful death suit that Michael Cascino of Chicago filed in January on behalf of the late Edward Shotts.

According to the complaint Shotts died in 2005, at age 76.

Cascino didn't give his residence, but a work history placed him in Indiana.

Prior to transfer, defendants Owens-Illinois and Guard Line Inc. argued that a two year limit had run out on wrongful death.

Airgas Merchant Gases echoed the argument and added that the complaint was devoid of facts.


From all five O'Brien complaints: Plaintiff has developed or is at risk to develop one or more of the following diseases: asbestosis, lung cancer, mesothelioma, asbestos related pleural disease, mixed dust, pneumoconiosis, occupational asthma, bronchitis, obstructive lung disease, chronic obstructive lung disease, silicosis, shortness of breath, reduced lung function, chronic persistent cough, chest congestion, sleep interruption, aggravation of pre-existing and co-existing disease, throat cancer, laryngeal cancer, lymphoma, gastrointestinal cancer, colon, stomach and rectal cancer, other asbestos related cancers, other diesel fume and exhaust related cancers, and other cancers associated with toxic exposure to solvents, chemicals, industrial products or chemicals, dusts, and/or particles.

The complaints also state that plaintiff has been under constant medical care and attention and will continue to receive same.

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