Run of asbestos defense verdicts could encourage more trials in Madison County

After seeing a string of asbestos defense verdicts since 2005, some say companies may be more comfortable and encouraged in taking cases to trial in Madison County.

But they won’t do so without weighing the risks and rewards first.

Darren McKinney, Communications Director for the American Tort Reform Association, said that when former Judge Nicholas Byron ran the asbestos docket until 2004, he favored plaintiffs and treated defendants unfairly.

“It was designed to beat defendants into submission before going to trial,” McKinney said.

But in the last 10 years, there have been nine straight defense verdicts in cases that actually went to trial.

Attorney Brian Huelsmann of HeplerBroom in Edwardsville was part of the defense counsel representing defendant Georgia Pacific in two of those nine trials. He said that given the recent success for defendants in the courtroom, more companies will likely be inspired to take their cases to trial.

National asbestos expert Lester Brickman, law professor at the Benjamin N. Cardozo School of Law at Yeshiva University in New York, also said the string of defense verdicts could encourage more defendants to go to trial.

“That may incentivize other defendants to take cases to trial despite the long-held belief that Madison County juries are heavily biased in favor of plaintiffs,” Brickman said.

In fact, defense attorney Raymond Fournie of Armstrong Teasdale in St. Louis, suggested that Madison County’s jury reputation has changed to one that is perceived to be fair to both parties, and defendants have noticed those changes.

“I think they are comfortable knowing that if they have defenses and a good fact situation, that the jury is going to be able to understand,” Fournie said, “and seeing that circumstance enroll in a favorable way for them. I think that what it means is Madison County juries have been paying close attention to the evidence and if the plaintiffs have not met the burden of proof, they have not found in their favor."

Manuel Sanchez, defense attorney with Sanchez, Daniels & Hoffman in Chicago, represented Ford Motor Company in a 2010 asbestos trial. He explained that during the trial, one juror asked where Bloomingdale, Ill. – the residence of the claimant – was located and later followed with curiosity as to why the case was then tried in Madison County. He said that such probing from jurors is proof they are aware of the county's reputation.

 

On the other hand, plaintiffs attorney Patrick Haines of Napoli, Bern, Ripka & Shkolnik – a New York-based law firm that opened an office in Madison County in 2012 – said that recent defense verdicts will not discourage plaintiffs from taking cases to trial.

Haines added that juries serve as a barometer, or a range, and add value to the system.

“All these cases are hypothetical until they are heard before 12 jurors,” Haines said.

Risk vs. Reward

Despite the string of defense victories, Brickman said it’s still a risk for a defendant to take a case to trial.

“Most are reluctant in the extreme to take a case to trial because of [Madison County’s] reputation,” Brickman said. “It’s a throw of the dice whether it wins big or loses big.”

Kent Plotner of the Heyl Royster law firm in Edwardsville explained that the risk in taking a case to trial extends beyond the “potentially large damage” that could be rewarded.

“I think the risk is that there aren’t cases with multiple defendants that usually find themselves at trial,” Plotner said. “It’s usually one or two.”

While taking a case to trial will always present risks, McKinney said he would encourage defendants to stand their ground when they don’t believe their products caused the claimant’s illness.

“ATRA is certainly encouraging those defendant companies who can afford to take the risk and who believe they are not liable in any case to go to trial," McKinney said. "Ultimately, that decision has to be left to the defendant company. Only they can calculate their risks and liabilities and financial situation."

But where there is risk, there is also reward. Defense attorneys agreed that the reward for a defendant is more than a favorable verdict.

“The reward is, if in fact you get a defense verdict, that’s a reward in and of itself,” Plotner said.

“It may dissuade plaintiffs from naming that particular defendant in multiple lawsuits if they feel that they may have a tough time possibly prevailing in future cases.”

As for the claimant’s reward, Fournie explained that plaintiffs win a high verdict but they must be careful how they win, because their verdict could be taken away in an appeal.

“You never know what the ramifications are if you win,” Fournie said.

Taking a Case to Trial

Typically, when an asbestos lawsuit is filed, approximately 75 to 100 defendants are named. Then, roughly 10 will actually settle and pay a claimant, Huelsmann said.

Fournie explained that it’s difficult to know which defendants will settle, be dismissed or will hold out for a possible trial at first. However, as facts come to light, both parties are in a better position to decipher accusations and actual exposures, he said.

“If on the other hand there’s no exposure,” Fournie said, “you try to minimize the activity for your defendant, by going down the path that we need to be out of this case without paying anything.”

Surprisingly, defendants that did not contribute any asbestos exposure are quite often named in lawsuits, Huelsmann added.

“They are shotgunning, taking a shotgun approach, to naming everyone under the sun and then finding out later whether that defendant even has liability,” Huelsmann said.

After naming “everyone under the sun,” defendants are voluntarily dismissed when it comes time for the deposition because the plaintiff can’t even recall the defendant’s products, Huelsmann continued.

“A majority of them are getting voluntarily dismissed off the case, and the plaintiffs didn’t even work with their products,” Huelsmann said.

In fact, several of these defendants may not even manufacture asbestos products or even required asbestos-containing parts made by third parties, he added.

While the burden of proof falls on the plaintiff, Huelsmann said these defense-naming practices almost switch the burden of proof to the defendants to prove they didn’t have asbestos-containing products.

Attorneys from both sides agreed that cases only go to trial when both parties firmly believe in their position, and when all other avenues to reach an agreement have failed.

“Trials are supposed to be when neither side is able to come to a resolution,” Fournie said, “so it has to be resolved finally by somebody. And in our justice system, it’s by the courts.”

“When someone ends up going to trial, it’s because one side or the other has a very different opinion of the value of the case,” Haines added.

“You think it’s worth a gazillion, he thinks it’s worth $5,” he continued.

Plotner added that there are multiple factors that are weighed before taking a case to trial. And that while there has been a string of defense verdicts, it didn’t necessarily set a new tone in favor of defendants in Madison County, he said.

“I think that those particular cases, both sides had reasons they needed to try the case,” Plotner said. “It just so happened that the facts of the case, I think, favored defendants in each of those.”

Sanchez was part of Ford Motor Company’s defense counsel in its 2010 Madison County asbestos trial and said that when deciding whether or not to go to trial, they demanded product identification and substantial exposure.

“The truth is, at least for Ford, they have always insisted on definitive proof of not just exposure to our chrysotile asbestos, but substantive exposure,” Sanchez said. “When push came to shove, we had to try the case.”

He added that it’s when these cases become “outrageous” and “extraordinary demands” are made that defendants begin considering to proceed to verdict, adding that it’s all about being reasonable and fair.

In other words, Sanchez said one reason cases go to trial is because claimants become “greedy” or “unreasonable,” especially when the defense pool is narrowed down to the last remaining few.

Fournie added in cases where it is clear that the defendant provided significant exposure, it is beneficial to reach resolution early on before expenses continue to accumulate.

“When the facts are such that there’s going to be exposure to the point of getting to the jury, you may want to consider trying to resolve it early,” Fournie said.