Local asbestos rules are unfair to defendants, candidate says; Tortfeasor Act should be amended

Ann Maher Mar. 1, 2012, 10:37am



A former circuit judge says the Madison County asbestos docket suffers from a unique problem.

Local asbestos rules effectively deprive defendants of the right to show comparative fault as outlined in the Illinois Joint Tortfeasors Contribution Act, according to Don Weber.

"I have spoken to many civil trial attorneys," Weber said. "All of them, plaintiff and defendant alike, agree that it is common practice for a non-settling defendant to know the set-offs prior to trial. That common practice encourages settlement in all those other cases and I see no reason why asbestos settlements are different."

Weber is seeking the Republican nomination for state representative in the newly redrawn 108th House District that includes part of the Metro-East. He served as circuit judge, by appointment, from November 2005 through the end of 2006, after Circuit Judge George Moran, Jr. resigned. Weber ran for the circuit seat in 2006, but lost the election to Dave Hylla.

He said that local rules deferring the customary practice of making third party claims against other defendants, "until the plaintiff has all his money effectively deprives a defendant from showing comparative fault."

Madison County is host to the busiest asbestos docket in the country. Cases from all over the country are processed here, often referred by national intake firms that spend big on advertising. In each of these suits, dozens, if not more than 100 defendants are named.

If elected, Weber said he would propose legislation that would make the asbestos docket in Madison County "fairer and would enhance the integrity and reputation of such litigation."

"My legislation would make it explicit that, regardless of local rules or interpretations, a defendant has the right to show comparative fault," he said.

An asbestos defendant recently raised the issue with Associate Judge Clarence Harrison by seeking to appeal an order entered by Madison County Circuit Judge Barbara Crowder that denied it settlement and set-off information from other parties named in a 2009 lawsuit.

James Craney, attorney for Milwaukee-based L&S Insulation, on Tuesday filed a motion asking leave to file an interlocutory appeal and to certify questions for the Fifth District Appellate Court over that decision Crowder entered on Oct. 28.

Crowder formerly headed the asbestos docket, but was removed from the position in December after having accepted $30,000 in campaign contributions from asbestos lawyers, days after she made a favorable ruling for them. She has denied any connection between her decision and the donations, which were later returned to lawyers at the Simmons, Goldenberg and Gori firms.

Craney argues that his client was entitled to a set-off for any settlement proceeds paid to the plaintiffs, Paul and Judith Napierala, by any other defendants, prior to trial, per the Illinois Joint Tortfeasor Contributions Act.

The Napieralas are represented by the Gori and Julian firm in Edwardsville.

"In tort cases, a payment by one tortfeasor will diminish a plaintiff's claim against all other tortfeasors found to be responsible for the same harm, in order to ensure that the plaintiff receives only one satisfaction for any one injury," Craney wrote in an August 2011 motion that sought, among other things, disclosure of settlements and set-offs from other defendants in the case.

He stated that of the 94 defendants sued by the Napierala, 41 defendants remained at the time. He wrote that two defendants filed motions for good faith settlement findings, but that 51 defendants were no longer named in the suit. Whether they were released from the litigation in exchange for consideration was unknown, Craney wrote.

He stated that it did not appear that the court had approved any settlements leading up to the trial - set for Nov. 11, 2011 - a date, he noted, in which Gori and Julian had at least 18 cases pending on the same trial docket.

"Pursuant to the Illinois Joint Tortfeasors Contribution Act, Defendant is entitled to a setoff against the jury's verdict for any settlement proceeds paid to Plaintiffs by other defendants," Craney wrote.

"In tort cases, a payment by one tortfeasor will diminish a plaintiff's claim against all other tortfeasors found to be responsible for the same harm, in order to ensure that the plaintiff receives only one satisfaction for any one injury."

Crowder denied the motion after hearing it on Sept. 13, 2011.

"The court rejects outright this defendant's argument that it is entitled to know settlement amounts for the purpose of determining how much it wants to offer to compromise a plaintiff's claim against L&S Insulation, Inc. or any theory that it needs to know how much others settled for in order to determine its own defense strategy," Crowder wrote.

She wrote that whether a party is entitled to know a dollar amount of another party's settlement prior to trial "appears to be a case of first impression."

She wrote that in Cordeck Sales v. Construction Systems, a discovery request trumped a confidentiality agreement because it was relevant to a claim for constructive fraud in a case involving a settlement agreement between a contractor and sub-contractor.

"That is not the issue here," she wrote.

"Defendant is well able to put on defense of liability evidence if it alleges another entity is the sole proximate cause of plaintiffs' injuries without knowing how much any settling defendant has paid."

In the order, Crowder expressed concern for confidentiality agreements.

"This court is concerned with the public policy considerations of encouraging settlements and the public policy requiring equitable apportionment of damages among tortfeasors," she wrote. "Exposing all confidential settlements would lessen the likelihood of settlements. Equitable apportionment of damages among tortfeasors can be accompanied by set-offs following verdicts; knowing the dollar amount another settled for does not aid an individual defendant in preparing its own defense at trial."

Craney noted in his motion seeking relief from Crowder's order that he was only recently made aware of the Oct. 28 ruling.

"On February 21, 2012, counsel for L&S was contacted by Plaintiff's counsel and informed that Judge Crowder issued a ruling on the pending motion on October 28, 2011," Craney noted. "A copy of this ruling and Order was seen for the first time by counsel when Plaintiff's counsel sent a .pdf file containing the Order via email on February 21, 2012. Based upon information and belief, a copy of the Order in question was not sent to the counsel of record in this case..."

On March 26, Harrison will hear requests for changes to a preliminary order Crowder entered establishing 500 trial dates for the 2013 asbestos docket.

The three firms that provided the campaign contributions to Crowder in December – Simmons, Goldenberg and Gori – received 82 percent of those trial slots.

Harrison said that lawyers who wish to file objections, exceptions and related motions along with proposed alternatives, including proposed orders, must do so by March 10.

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