Stack to serve as asbestos bankruptcy trustee; Retiring judge reflects on 23-year career

Ann Knef Dec. 2, 2010, 11:21am


If all goes as planned, a new line of work for outgoing Madison County Circuit Judge Daniel Stack will be overseeing payments made to asbestos claimants.

Stack, who is retiring Friday after 23 years on the bench, said he has been elected by a committee of lawyers to serve as one of three trustees of the Flintkote asbestos bankruptcy trust. The trust, one of approximately 26 asbestos bankruptcy trusts in the country, pays claims outside of the tort system.

From October 2004 until earlier this year Stack was the circuit's asbestos judge, presiding over one of the busiest dockets in the country.

Flintkote, a manufacturer of roofing and flooring materials, filed Chapter 11 reorganization in 2004 under the weight of more than 157,000 personal injury and wrongful death claims, according to

But before Stack can serve as Flintkote trustee, U.S. District Judge Judith Fitzgerald of the Western District of Pennsylvania must rule on objections to his trustee status.

Stack said he didn't know who objected.

"Generally, objections come from other defendants," he said in an interview at his office Tuesday.

In addition to his role as asbestos bankruptcy trustee, Stack said he has talked with USA&M (United States Arbitration and Mediation) and Aequitas Alternative Dispute Resolution in St. Louis about working for them as a mediator.

Looking back

Having served as an elected circuit judge since 2004 and as an appointed associate judge prior to then, Stack said he leaves office with a good track record.

Lawyers often have told him he could get a lot of work as a mediator because he's seen as fair to both sides. He said that some litigants have even told him that despite rulings going against them, they thought he was fair.

"That's about as good of a compliment one can get," he said. "I feel like I have been successful for the most part."

A lawyer representing an American auto manufacturer also paid Stack a high compliment by saying, "Judge, I'd come here and try a case anytime," Stack said.

And that partly explains why Stack takes umbrage with negative portrayals of Madison County's court system as plaintiff-friendly or worse, a "hellhole."

In terms of Madison County's on-the-rise asbestos docket -- in which most plaintiffs don't reside in Illinois -- Stack said, "Whose ox is gored" if out-of-state cases are not allowed to proceed here.

"Cases are going to be filed somewhere," he said. "Do they (defendants) want to send lawyers to Iowa...and then drive two to three hours? Is that really more convenient?"

Madison County has well-established court procedures, a certified records depository and e-filing, among other conveniences, Stack said.

In his role as asbestos judge, Stack said if and when forum non conveniens challenges were raised by defendants, he applied a "deference" standard in terms of an asbestos plaintiff's state of residence.

"The further away they are the less deference they get," he said. "That was the standard I used."

"Nobody gets no deference," he said. "That's not the law. New York gets a lot less, but they get some deference."

Furthermore, he said, "We can't control who files cases."

In Stack's first forum ruling as asbestos judge in October 2004, he ordered a Louisiana man's case moved to a court closer to where the plaintiff's exposure occurred.

He questioned how Madison County would hold up if every asbestos lawsuit filed in its courts did go to trial, suggesting that the "cash cow" asbestos docket would quickly overwhelm local taxpayer resources.

"It is not the function of the courts to make money," Stack wrote in the October 2004 order. "This is not a 'business.' It is the function of the courts to administer justice."

In the year before Stack took over as asbestos judge, a record number of cases were filed in Madison County: 953. After he took over asbestos, the number of new cases shrank for three years. But, in 2007, the docket started growing again. In 2009, 814 new asbestos cases were filed in Madison County.

Stack said that Madison County resolves the largest percentage of mesothelioma cases in the country, as opposed to the smallest percentage of asbestos trials.

He said he presided over two or three asbestos trials since 2004, and only one resulted in a plaintiff's verdict.

The court is fair and efficient, he said.

"The system almost always has a good sense of what is a fair settlement," he said.

"Plaintiffs are good about dismissing defendants with no ID," Stack said. "And defendants also know if their company has liability."

But, what about...?

What about critics who would suggest Madison County's asbestos court is plaintiff-friendly because the plaintiff's bar donates heavily to the judges' elections?

Stack was quick to answer that in his 23 years on the bench, "No one has ever hinted at me...'I contributed to your campaign, I want you to rule this way.'"

He then just as quickly recalled a time in 1986 when he was asked by a Republican figure to rule in favor of his daughter's divorce case. Stack told then-Chief Judge Philip Rarick about the incident.

Stack is a Democrat.

"He said, 'Recuse yourself from the case and tell why and he will never bother you again,'" Stack said.

Stack said that over the years he has been at conferences, parties and golfing with lawyers and never heard hints about cases in front of him. On the other hand, he has been told by some of the area's most prominent lawyers to "throw out" their cases if they are not good enough.

He said he could not think of a single instance in which anyone expressed the possibility that a judge ruled a particular way because of a campaign contribution.

Stack said he and his fellow judges are hard-working and followers of the law.

Papered to death

In addition to presiding over asbestos, Stack handled a large major civil docket during his six years as circuit judge, including class actions and product liability cases, and one extremely complex legal malpractice case. He presided over the first Vioxx trial in the Midwest, which ended in a defense verdict for Merck in 2007. And, he presided over a weld rod trial in 2005 which resulted in a defense verdict.

Stack also has certified a number of class actions against insurers and oil companies which have resulted in large settlements and lawyer fees. He just recently certified a class action against Sanford Brown College and its parent company.

Dealing with a profoundly challenging civil docket and presiding over one of the busiest asbestos dockets in the country, Stack reflected that it was "too much work."

"We were thrilled with the Class Action Fairness Act," Stack said of the 2005 law that moved most class actions out of state courts and into federal court. But, he said, his brethren in federal court were not so pleased.

"Class actions wear you out," he said.

In some of the proposed class actions he presided over, such as six cases against makers of the herbicide atrazine, he got "papered" to death. The 2004 cases filed by attorney Stephen Tillery on behalf of Holiday Shores Sanitation District -- and still ongoing -- were under advisement for nearly two years under Stack's watch.

He said that in multi-state class actions, against insurers for instance, companies are willing to spend a lot of money to defend.

"They paper you to death," he said.

The new asbestos judge

Madison County Circuit Judge Barbara Crowder, who assumed the asbestos docket earlier this year, said recently that she would be working toward resolving cases filed in 2007 and earlier and expediting cases of very sick people.

She said she expected to have her own "imprint" on the asbestos docket.

"Everything will be in line with the law," she said.

She indicated she would make scheduling changes and attempt to streamline administrative functions. She also has sought input from both sides of the asbestos bar on management issues.

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