Crowder hears arguments on asbestos standing order
EDWARDSVILLE – Madison County Circuit Judge Barbara Crowder, heir to the biggest asbestos docket of any state court in the nation, must decide the future dimensions of her docket.
She heard a triple argument on March 25, among plaintiffs who would retain a calendar providing about 500 trial dates a year, defendants proposing 250 dates, and other defendants opposing both.
For the group favoring half as many dates, Robert Shultz of Heyl Royster attacked reservation of multiple dates for specific firms.
"This is all about the slots," he said.
"You've got to be in the club in order to get a reservation," he said.
"The more I live this life, the more I see what goes on, the more reasonable this is."
Other defendants sent Jeff Hebrank of HeplerBroom to warn that Shultz's calendar would increase defense costs and unpredictability.
Hebrank endorsed changes Crowder made since replacing asbestos judge Daniel Stack, who retired.
Hebrank agreed with Shultz that the calendar encourages lawyers to go out and market dockets.
Bill Kohlburn of John Simmons's firm in East Alton argued for plaintiffs that if defendants have issues with where cases come from, they should file forum motions.
Kohlburn told Crowder adoption of a calendar was an administrative function.
He said it doesn't create slots to be filled.
He said it allows plaintiffs to request trials in an orderly fashion.
Elizabeth Heller of Goldenberg Heller countered HeplerBroom's proposal to base trial dates only on numbers of mesothelioma claims.
She said her firm filed 110 cases, and 58 were lung cancer.
She said her firm represents people in Madison County, writing wills and leases, and resolving commercial disputes.
She said when clients get cancer, they ask the firm to review their cases.
She said the firm represents more than 3,000 Madison County residents with non malignant asbestos disease.
J.R. Stever of Michael Bilbrey's firm said, "Lung cancer is probably a majority of our business."
Hebrank opened for the defense, saying it was essential that the number of cases decrease.
He said the average case takes 44 months to go to trial.
He said there is no need to expedite cases.
"Your honor has started to push some deadlines back," Hebrank said.
He said all cancers but mesothelioma were questionably related to asbestos.
He said if local plaintiffs need a court date, there are plenty of docket spaces for them.
He called the plaintiff calendar a wish list.
"We have an expedited docket that frankly has been abused," Hebrank said.
He said with new treatments and surgeries, mesothelioma victims live longer.
"We don't need to set them in six months, or nine, or fifteen," he said.
Shultz followed, for "a cross section of businesses that are sued frequently if not automatically, including some small local businesses."
"It's something I refer to as indiscriminate naming," Shultz said.
He asked Crowder to dispel any impression that the system works.
He said a fellow from Texas came up three times.
"The first two times, he was told he needed to talk to the local firms," Shultz said.
"That is the antithesis of justice.
"We are not dealing with a backlog by any means.
"In 2009, they couldn't fill the dates we gave. This has become an aspirational goal.It results in a referral network.
"The plaintiff bar can't tell us a deposition has been scheduled until two weeks before.
"There are too many cases. They are set too fast."
He said on Monday morning of trial week, defendants don't know which plaintiff among 19 will go to trial.
"We understand why plaintiffs want it that way, but is that fair?" Shultz said.
"You have to prepare for all nineteen."
He said there are about 2,900 mesothelioma diagnoses in the nation and about 140 in Illinois each year.
He said there were 506 mesothelioma cases filed in Madison County last year.
"It's because there are so many trial dates available," he said.
He flashed a chart showing asbestos suits outnumber all other suits together in Madison County.
"It tells you the cases are coming in from somewhere," he said.
"Let's cast aside this relic of the past."
Ray Fournie of Armstrong Teasdale said expediting to six months might be okay for one case but not for 19.
He said defendants pay to expedite expert reports and find out they don't need them.
He said wise use of defense costs allows more indemnity amounts to resolve claims without trial.
Kohlburn, for plaintiffs, said there are mechanisms to deal with issues Shultz raised.
"This is not a slot," he said. "This is not a reservation.
"This is not the property of any plaintiff's firm anywhere."
Crowder said she would get an order out as soon as she could.
She said she wasn't an apologist for the past or an advocate of it.
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