Attorneys concerned over change to '13 asbestos docket; New '12 filings on record-setting track

Bethany Krajelis Jul. 12, 2012, 3:52am





It's been about three months since Madison County Associate Judge Clarence Harrison eliminated the court's 2013 advance setting of asbestos trial weeks, but some members of the local legal community said they are already seeing the effects of the judge's decision.

Those effects, however, vary depending on the source.

Harrison, for instance, said the court is now scheduling dockets more consistent in size; a change he hopes will make things "work more smoothly." And while some attorneys contend the judge's order actually opened the door to an increase in the number of asbestos filings, others believe it's still too early to tell what the ramifications will be, if any.

In late March, Harrison entered an order terminating the advanced trial setting practice, saying that "the Court finds no continuing need for the pre-assignment of trial settings."

His decision came shortly after he heard arguments from defense and plaintiffs' attorneys over an order Circuit Judge Barbara Crowder entered in December that set nearly 500 trial slots.

Harrison replaced Crowder as head of the asbestos docket late last year. Crowder was reassigned after accepting $30,000 in campaign contributions from the area's three largest asbestos firms. Crowder, who later returned the donations, gave those three firms about 82 percent of the trial slots for next year.

Attorney Robert Shultz, who recently left Heyl Royster in Edwardsville for a job at State Farm in Bloomington, filed an 18-page brief opposing Crowder's order, explaining that the trial reservation system was no longer being used for its original purpose of resolving a backlog of local asbestos lawsuits.

Raymond Fournie, a partner at Armstrong Teasdale in St. Louis, was one of a few defense lawyers who signed on to Shultz's brief. Despite his support for the change, Fournie said he remains concerned about how Harrison's decision will play out and if it will cause complications for defense attorneys and higher costs for their clients.

"I think Judge Harrison is doing his best to accommodate all sides," Fournie said. "But I think that it's going to be more complicated for the defense simply by the fact there isn't going to be just one plaintiffs firm per docket."

Instead of preparing for the two or three cases marked as priorities by one plaintiffs' firm as done in the past, Fournie said defense attorneys will probably have to prepare for the top two or three cases of several plaintiffs' firms next year as a result of Harrison's order. This, he said, will likely result in "more work and more expense."

Fournie said not having specific firms assigned to certain dockets anymore could open up the process to more firms, including those located outside Madison County.

"The number of plaintiffs' firms and the filings by each may, and probably will, increase," he said. "Before you had three firms with 82 percent of the docket settings and there was only a limited number put on the docket by each firm. Accommodating two or three or four firms per docket has the tendency to increase the number of cases that may be on those dockets. By result of the order, the dockets have opened up and that allows plaintiffs' firms to file more cases."

But, Fournie cautioned that "it's still a little too early to tell the ramifications, if any" of Harrison's elimination of the advanced trial setting in Madison County.

"We will have a better idea in 2013 because that's when it will be implemented and we'll be able to see how much extra activity we will have to participate in and how much additional preparation will be needed," he said.

Barry Julian, a plaintiffs' attorney with Gori Julian & Associates in Edwardsville, said while he liked "things the way they were," he has yet to see any results of Harrison's order. He also said there is no connection between the number of filings and the advanced trial setting.

Julian's firm was one of the three firms that previously received advanced trial settings. The other two firms were the Simmons Law Firm in Alton and Goldenberg Heller Antognoli & Rowland in Edwardsville. A message left for the vice president of communications at Simmons and emails to two attorneys at Goldenberg were not immediately returned.

Jeffrey Hebrank, a defense attorney at HeplerBroom, said in an email that his firm did not support changing the docketing system.

He said the advanced trial setting practice was originally created to control the number of cases set for trial and the number of trial weeks, as well as to limit the number of plaintiffs' firms with cases set for trial, in an attempt "to efficiently manage cases that had been filed and we expected to be filed."

Hebrank said his firm did not believe the elimination of the advanced trial setting would curtail new asbestos suit filings, which he said was the purported goal of the recent change.

"We thought it was misguided to suggest that the judges, including Judge Harrison, can control filings by revising the docket system. Local Madison County judges don't control the number or kinds of cases filed," he said.

"Defendants that cannot be sued in Madison County are regularly dismissed. Trial courts are bound to follow the law of the appellate courts. Cases are filed here because Illinois law permits them to be filed here."

The elimination of the reservation system, Hebrank said, has "led to a predictable unpredictability that actually has caused the system to be more costly to defendants from a time and money standpoint.

"HeplerBroom's experience is that since the change, the docket is not only less manageable, but that case filings are increasing, not decreasing," he said, adding that his firm expects more than 1,300 new asbestos filings by the end of this year.

And based on records provided by the Madison County Circuit Clerk's Office, it looks like Hebrank could be right when it comes to the number of asbestos filings this year.

From January 1 to June 30, about 654 asbestos cases were filed in Madison County, the clerk's office reported. That's about a dozen more cases filed during a six month period this year than the total number of cases filed in 2008, which was 639.

Records from the clerk's office, which did not include a monthly breakdown of filings, show that 814 asbestos cases were filed in 2009, followed by 752 in 2010 and 953 last year. With about six months left in 2012, it appears Madison County could be on track to see more filings this year than it did in 2011.

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Organizations in this Story

Gori Julian & Associates
156 N Main St
Edwardsville, IL 62025

Heyl Royster
124 SW Adams St
Peoria, IL 61602

Armstrong Teasdale
411 Saint Louis Street
Edwardsville, IL 62025

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