Union Carbide and other asbestos defendants seek reforms in Madison County 'magnet' court

Steve Korris Dec. 21, 2010, 12:52pm


Seven businesses that constantly defend asbestos suits in Madison County have urged Circuit Judge Barbara Crowder to curtail the county's role as a litigation magnet.

On Dec. 20, they proposed radical revision of a management order that has governed the county's asbestos docket since 2004.

Robert Shultz of Edwardsville called the order "an outmoded document that, over the course of time, has led to the creation of an environment contrary to sound public policy and an appropriate system of civil justice."

He filed the proposal for Union Carbide, Riley Stoker, Certainteed Corporation, Ford Motor, Maremont Corporation, General Electric and Arvin Meritor.

Shultz wrote that plaintiffs filed 455 asbestos suits in Madison County in 2007, 639 in 2008, 814 last year, and 738 this year.

The motion states that asbestos claims accounted for 57 percent of suits seeking more than $50,000 last year, and 59 percent this year.

Shultz supplied figures showing three Madison County mesothelioma suits for every mesthelioma diagnosis in Illinois.

He wrote that out of state plaintiffs can guarantee themselves a trial slot within seven to 10 months of filing.

From Nov. 1 to Dec. 17, defendants took depositions in 86 cases, and that from them, seven of the plaintiffs lived or worked in Madison County.

Depositions took place in California, Texas, Ohio, Nebraska, Wyoming, Michigan, South Carolina, Colorado, Nevada, Arizona, New York, Idaho and Oregon, Shultz wrote.

He called current trial procedure grossly unfair.

"In the current environment, on 28 Mondays during the calendar year, defendants in Madison County asbestos lawsuits must defend themselves in up to 19 or more cases," he wrote.

"While plaintiffs' counsel knows the identities of cases that they will push to trial on a given docket and those where they will seek a continuance or dismissal, this information is rarely shared with defense counsel," he wrote.

"Because the defendants do not know the identity of the trial ready cases, they must prepare, often needlessly, to defend each case set for trial," he wrote.

Shultz proposed to require a list 14 days in advance.

"By fourteen days prior to a trial date, plaintiffs' counsel knows which of their cases will receive their highest attention for a trial docket and which will not," he wrote.

Shultz proposed that no one could request a trial date without meeting three conditions.

First, a plaintiff would have to serve every defendant he named.

Second, he would have to answer interrogatories and respond to requests for production.

Third, he would have to provide medical records, social security records, employment records, military records, X-rays, tissue blocks and pathology slides.

Shultz also asked for a meaningful opportunity at the beginning of a case to challenge the choice of forum.

He called for standard discovery requests for defendants to answer on forum issues.

He proposed that within 21 days of answering, a defendant could
set a hearing on a motion to dismiss or transfer.

"In such instance, the court shall not set the case for trial until it has ruled on such motion, which ruling shall occur within a reasonable period of time," he wrote.

He proposed to assign all trial settings based on the oldest case, with priority for Illinois residents.

Shultz also pleaded for access to records of plaintiffs in bankruptcy trusts.

He wrote that disclosure would increase transparency and prevent the possibility or perception of improper or double recoveries.

He wrote that in other jurisdictions, plaintiffs filed inconsistent exposure allegations in the trust and tort systems to inflate their potential recovery.

"When they occur, these practices inhibit appropriate individual recovery, the compensation of future claimants, and the fair allocation of both funds and liability," he wrote.

"Trusts typically do not share claimant information with each other, so there is no check on inconsistent claim information.

"The immense collective worth of the trusts, enhanced by the recent creation of several new trusts with assets exceeding $30 billion, exacerbates the incentive to file contradictory claims."

He wrote that allegations submitted to trusts would allow development of causation defenses and the potential listing of other responsible parties on verdict forms.

"The Illinois Supreme Court has held evidence of alternative exposure relevant and admissible," he wrote.

Shultz wrote that the circuit court of Kanawha County, W.V., adopted an order requiring statements of existing claims against bankruptcy trusts.

He wrote that a plaintiff there must provide proof of claim along with work histories, medical records, depositions, testimony and other supporting materials.

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