'Little reason to expect change' to MC asbestos docket, legal observer says

In spite of what appears to be a dip in the number of new asbestos filings in Madison County, attorneys and observers don't believe it is a lasting trend.

The docket has doubled in the last four years and tripled in the last seven, earning distinction as the nation’s epicenter for asbestos litigation.

As of June 30, Madison County had seen 656 new cases filed, a drop from last year’s record of 793 mid-year filings.

If the pace of cases filed so far this year continues, the nation’s busiest asbestos docket will be down by approximately 20 percent over last year’s record-setting figure of 1,678.

However, an outspoken critic of the Madison County asbestos docket doubts recent figures foreshadow a sustained decline.

“Current practices provide substantial benefits to the plaintiff’s bar as well as the defendant’s bar, so there’s little reason to expect change, but that would depend on how the new judge would assess the situation,” said Lester Brickman, law professor of the Benjamin N. Cardozo School of Law at Yeshiva University in New York.

Brickman was referring to Associate Judge Stephen Stobbs who was chosen in October 2013 to preside over the asbestos docket.

Asbestos defense attorney Kent Plotner of the Heyl Royster law firm agreed with Brickman on the docket's future, saying the docket will likely continue down a path of expansion.

“It doesn’t appear that there is going to be a change in the number of cases that are going to be filed,” Plotner said.

Plaintiff attorney Patrick Haines of Napoli, Bern, Ripka & Shkolnik, however, said the docket has already changed over time and will continue to do so.

“Asbestos litigation continues to evolve, it’s never constant,” Haines said. “I’ve been doing it for 20 years and it’s very different from when it started.”

Defense attorney Brian Huelsmann of HeplerBroom said that while the numbers tabulated so far this year are less than previous years, the 656 new cases still puts Madison County on pace to reach over 1200 cases by the end of the year, which represents a doubling of the total number of cases filed in Madison County between 2004 and 2008.

Until recently, the vast majority of asbestos claims brought in Madison County were on behalf of victims of mesothelioma, a deadly asbestos-related cancer in the lining of the lungs. But in 2013, the number of lung cancer cases spiked, making up approximately 45 percent of the total caseload. At mid year, 194 new cases were lung cancer, or 30 percent, and 452 were mesothelioma claims.

McKinney believes the rise in lung cancer cases is a result of the shrinking number of new mesothelioma diagnoses, thus allowing the focus to fall on lung cancer lawsuits.

“It seems to me, that the asbestos bar will be increasingly driven to find other ways to milk this cow, as it were,” McKinney said.

Huelsmann said that Madison County shouldn’t take all the blame for the docket, saying the state legislature might consider stepping in with reform solutions.

“There are some legislatures out there who have started talking about that,” Huelsmann said. “You see that but it doesn’t seem to be going anywhere in the state of Illinois.”

Defense attorney Raymond Fournie of the Armstrong Teasdale law firm said that while passing legislation could help provide guidance and establish structure, it can also create a more cumbersome situation.

“Legislation is always tricky in the legal arena, simply because there is always a right to redress grievances in a court,” Fournie said. “Some have established a certain threshold for them to be filed and maintained in the jurisdiction.”

"Make sure whatever you craft is going to be constitutional and fair,” he said.