Defense attorneys don't see commitment to reducing asbestos trial settings, getting rid of cases that don't belong

By Heather Isringhausen Gvillo | Oct 23, 2014

Roughly one year since Associate Judge Stephen Stobbs took on the role as judge of the nation's busiest asbestos docket, defense attorneys take a dim view on the fight over forum.

In a court where more than 90 percent of the asbestos cases come from out-of-state residents and where the newest judge assigned to the docket has denied forum non conveniens motions, one very active defense attorney said, "It seems to be business as usual in Madison County."

Brian Huelsmann of HeplerBroom in Edwardsville said Stobbs "made it pretty clear" what his position was with respect to forum, when in May he denied defense motions in four separate asbestos cases alleging lung cancer. Stobbs ruled in favor of plaintiffs from California, Utah, Texas and Tennessee.

Since the requests were denied, there haven’t been any other challenges or hearings on forum, Huelsmann said.

“He made a pretty good sign of how he was going to deal with forum motions,” Huelsmann said.

Defendants have tried taking steps towards creating a more manageable docket by moving for more appropriate jurisdictions, Huelsmann said. But, continuing to file forum non conveniens motions “would seem like a waste” of time and effort, he said.

In his ruling, Stobbs concluded that the 12 moving defendants failed to sufficiently argue that Illinois is inconvenient for all parties involved.

Stobbs' decision was appealed and awaits ruling at the Fifth District Appellate Court.
On appeal, defendants argue that Stobbs’s orders denying forum motions were a “clear abuse of discretion.” They said that the decision rendered the forum doctrine a "dead letter" in cases involving numerous defendants, which applies to every asbestos case filed in Madison County.

Defendants also argued that the cases had no connection to Illinois, and cited the county's congested and growing asbestos docket. The number of case filings has gone from 325 in 2006 to 1,678 in 2013.

They noted a growing concern of forum shopping, especially with the recent influx of lung cancer cases.

Since opening an office in Glen Carbon in 2012, the New York-based Napoli firm’s filing numbers spiked from 343 in 2012 to 548 in 2013, making it the top asbestos filer in the county.

More specifically, the Napoli firm dominates the docket's lung cancer filings. More than 90 percent of the firm’s 2013 flings were lung cancer claims.

Defendants are also concerned with Napoli’s lung cancer cases because lung cancer is most often caused by smoking and other non-asbestos related causes.

They contend that if all lung cancer patients were to file asbestos lawsuits, the mass filings would threaten to “overwhelm the docket, swamp the court and crowd out court resources that would otherwise be available to actual Madison County residents.”

“The consequences of mass lung cancer filings on asbestos dockets would be staggering …” the defendants argue. “Madison County’s asbestos docket is not prepared or equipped to handle a new wave of litigation that could come from the filing of large numbers of lung cancer cases.”

Huelsmann said that in the wake of Stobbs' decision, defendants haven’t been filing significant numbers of forum non conveniens motions with the intention of appealing denials because it would only burden the appellate and supreme courts.

Defense attorney Lisa LaConte of Heyl Royster in Edwardsville said forum non conveniens is a “very significant” issue defense attorneys have tried to address at various times and in various ways over the last 10 years in Madison County, ranging from their actions in filing motions and the efforts to get standing orders and trial docket orders revised.

“The defendants have taken a multifaceted approach to the issue,” she said.

However, because Madison County has not shed its reputation as a “national” docket, defendants take opportunities to resolve cases when they are in the best interest of their clients.

“Out of necessity, defendants will need to take a harder look at what’s being filed,” LaConte said. “If they resolve a case, then they need to resolve cases that are significant.”

LaConte and Huelsmann agree that forum non conveniens rejections aren’t entirely to blame for Madison County’s large, attractive asbestos docket.

“I think that forum isn’t the singular issue in defeating the idea that Madison County is a magnet jurisdiction, but it certainly is very important,” LaConte said.

Huelsmann explained that when forum non conveniens motions are denied, it results in more filings, which leads to a larger number of trial settings.

“That is where it all stems,” he said. “If the cases are not getting dismissed on forum, they get trial settings.”

LaConte and Huelsmann aren't too optimistic about the docket getting trimmed.

“It’d like to be able to tell you today that things are different than six months ago,”

Huelsmann said, “but it seems like things are staying here.”

LaConte said, “Without a commitment to dramatically reduce the number of trial settings, and an equal commitment to making sure that we are spending the resources of the county and all the parties on cases that really belong in Madison County, I don’t see that there’s going to be a lot of change in the current situation.”

Requests for comment by plaintiffs’ attorneys were all left unanswered.

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