Asbestos litigation exploded under Byron's watch; Docket designed to 'beat defendants into submission,' critic says

By Heather Isringhausen Gvillo | Sep 5, 2014

Madison County’s asbestos docket has seen a number of judges on its road to becoming the epicenter for asbestos litigation in the U.S.

The docket was first established in the mid-1980s with mass asbestos filings against local industries brought as a result of union-provided cancer screenings.

Defense attorney Raymond Fournie of Armstrong Teasdale estimated that between 3,000 and 4,000 cases were initially filed - the mass filings coming all at once to meet statute of limitations concerns.

But it didn't explode until former asbestos Judge Nicholas Byron presided over the docket, according to attorneys and critics.

“I would say that the biggest factor in Madison County’s reputation as an asbestos Hellhole boils down to one man, and that was [Judge] Byron,” said Darren McKinney, Communications Director for the American Tort Reform Association.

McKinney said that Bryon designed the docket to “beat defendants into submissions before going to trial.”

National asbestos expert Lester Brickman, law professor of the Benjamin N. Cardozo School of Law at Yeshiva University in New York added that Byron was so "pro" plaintiff that he “accommodated the plaintiff’s bar in virtually every conceivable way.”

Calling Byron’s take-over of the docket the “Big Bang” of asbestos litigation in Madison County, McKinney also said that Byron’s favoring of plaintiffs’ attorneys resulted in a rise in case filings, new plaintiffs’ firms and a crowded docket.

“He was so shamelessly plaintiff friendly that it was almost instantaneous that the local attorneys came to understand that, ‘This was a place where we could have our way,’” McKinney said.

According to McKinney, Byron would schedule trial slots for a single defendant in multiple cases on a single day. As a result, defendants coukl not adequately prepare because any one of the several cases could end up going to trial, so they would settle in order to avoid going to trial altogether.

“He was corrupt as the day is long,” Brickman added.

In 2002, while running for retention, Byron received $65,750 in campaign donations mostly from asbestos plaintiff lawyers.

Over a 17 year period, he made Madison County the friendliest venue in America for asbestos litigation, docketing nearly a thousand cases in a single year – 953 in 2003 – which set a record at the time,

After Byron’s reign over the asbestos docket, retired Circuit Judge Daniel Stack took over the docket from 2004 through mid-2010.

During his time as asbestos judge, the docket saw a decrease in new case filings followed by an eventual increase.

Circuit Judge Barbara Crowder took over the docket after Stack retired in December 2010. She was first elected to the bench in 1999 as an associate judge and became a circuit judge in 2006.

Brickman said that after Byron retired and Stack took over, he expected defendants to receive a “much fairer shake,” but said it was short lived in part to Crowder’s handling of the docket.

He added she would assign all trial dates to a handful of law firms that provided financial support for her political campaigns, providing an advantage for the three largest asbestos firms – Simmons, Gori & Julian and Goldenberg.

“Trial slots in Madison County are like gold,” Brickman said, “because most asbestos cases don’t settle until the plaintiff has a trial date.”

“Now the trial dates are assigned in a more equitable manner,” he added.

The practice of reserving large numbers of trial slots for asbestos lawsuits has over the years attracted thousands of out-of-state claimants with no connection to Illinois – explaining in part the docket’s expansion

Crowder was reassigned to hear chancery, eminent domain and miscellaneous remedy cases after it was learned that she accepted $30,000 in campaign contributions from the area’s three largest asbestos firms days after she granted those firms a vast majority of the docket’s advance trial slots for 2013.

She had served as the asbestos judge for less than a year and a half when she was reassigned by then chief judge Ann Callis.

Associate Judge Clarence Harrison then replaced Crowder in December 2011 under the controversial circumstances, presiding over the asbestos docket for nearly two years.

Harrison eliminated the advance trial setting practice in March 2012. But rather than contracting, the docket accelerated as opportunity was made available for other firms - both local and national - to get cases set for trial in a timely manner.

Harrison left the docket last year after announcing he would be seeking election to the vacancy created when Callis stepped down to run for Congress.

Associate Judge Stephen Stobbs took over the docket in October 2013, making him the fourth judge to preside over the largest asbestos docket in the country in the last four years.

Stobbs has served as an associate judge since June 2006 after the court gained an associate position based on a population increase.

Since taking over the docket, Stobbs has presided over two rare asbestos trials – one in November 2013 and one in February 2014. Defense verdicts were entered in both cases.

In an effort to clean the docket up, Stobbs has implemented a priority system, requiring plaintiffs to select their top five cases most likely to go to trial each week. This allows defendants to focus on five possible trial cases rather than 20 or more.

Fournie commented that, "it always helps to give a priority system so resources can be allocated accordingly by the defendants."

Defense attorney Kent Plotner of the Heyl Royster law firm added that the priority system helps hearing days flow more smoothly.

“Prioritizing the top five allows some sense of a state of preparedness the cases need to be in for trial purposes," he said.

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Armstrong Teasdale Heyl Royster

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