Two new laws enacted by lame duck Governor Pat Quinn have some legal observers concerned about their consequences.
Just before Christmas, Quinn signed into law a bill that eliminates the statute of repose for asbestos cases and one that shrinks civil juries from 12 to six jurors.
Not only do opponents object to the substance of the measures, but also the“11th hour” method in which they were rushed through the state legislature.
“Something of this magnitude should not be rushed through," said Travis Akin, executive director of the Illinois Lawsuit Abuse Watch. "It needs to be debated and given its deserved weight."
He added that the bills were introduced just before Thanksgiving and signed into law just before Christmas.
“That’s what you do when you have bad ideas that you can’t defend in the light of day,” Akin said.
The so-called “veto session surprise” was spearheaded by the Illinois Trial Lawyers Association and lifts a 10-year statute of repose on filing asbestos suits in Illinois.
Patrick Haines of the Napoli Bern Ripka Shkolnik law firm said the new asbestos-related law brings about necessary changes.
“I think the entire concept of a statute of repose as applied to a latent disease like mesothelioma is inherently unfair,” Haines said. “How is it just that a person can have the deadline to file their cause of action expire before they can even know they are sick and injured? Yet that’s exactly what the repose statute in Illinois … does. So I applaud the legislature for fixing that injustice.”
Other experts agreed that perhaps a 10-year statute of repose was too short, but they suggested that a more appropriate approach would have been to negotiate an agreement.
“The business community was perfectly willing to plan a new statute of repose that made sense,” Akin said."But there was no willingness on the trial lawyers’ part to work with the community.”
Akin said the law has the potential to grow an already out-of-control asbestos docket in Madison County by playing into the hands of the trial lawyer lobby.
“I think we will see more law firms moving into Madison County and opening up shop here to take advantage of this situation,” he said.
So far, asbestos litigation has driven nearly 100 companies into bankruptcy and created an asbestos bankruptcy trust system with between $30 billion and $37 billion reserved for current and future asbestos claimants.
In fact, Matt Fullenbaum, director of legislation for the American Tort Reform Association, believes this new law is an attempt to find more solvent defendants as more companies seek bankruptcy protection.
The bill will increase the number of parties that can be held liable for asbestos related cases, potentially including supervising architects, design engineers and public school boards, among others.
Akin explained that companies initially immune from asbestos law suits are now “fair game.”
“Plaintiffs lawyers are looking for the next deep pocket,” he said.
“These companies that have been insulated from lawsuits suddenly are very much exposed,” he added.
Already accounting for roughly 25 percent of all asbestos cases filed in the U.S., the Madison County docket could grow as a result of the new law, Fullenbaum said.
“This will certainly enhance Madison County as a Judicial Hellhole,” he said.
Last year, the nation’s busiest asbestos docket saw a record-breaking 1,678 new filings.
“Something like this could be the catalyst to throw us light years backwards,” Akin said.
Civil juries cut in half
Reaction to the bill cutting the number of jurors in civil cases from 12 jurors to six, was not quite as black and white.
Todd Sivia, managing partner of Sivia Business & Legal Services, said he can see both positive and negative results from the new law.
He explained that the purpose of a jury is to be a consistent sample of the parties’ peers to try a case, but reducing that number provides a much smaller pool with which to create that ideal sample. He notes that such circumstances “bodes both ways.”
“It’s kind of luck of the draw,” Sivia said. “You may have a full panel of those inclined to rule for defense or the other way.”
Akin agreed that it is much easier to convince a group of six jurors one way or another.
“Lowering the number of jurors fundamentally changes the administration of justice in our state,” he said.
However, Sivia added that smaller juries could potentially hurt both parties in a lawsuit, adding that there is risk to having a smaller jury pool consisting of “less people, less experiences and less discussions.”
Sivia said there’s a chance that juries will consist of a less diverse group.
The case could get a panel of jurors “who are more centered on reducing the number of lawsuits” in Madison County, which would favor the defense and hurt the plaintiff.
At the same time, a case could get a panel of jurors who are sympathetic to most plaintiffs, which would favor the claimant and hurt the defense.
On the other hand, the smaller jury promotes judicial efficiency. Juries may be more likely to reach an agreement more easily, resulting in less hung juries and more efficient courtrooms with fewer retrials, Sivia said.
Haines said the size of the jury is not as important as fairness.
“I don’t think it matters to most trial lawyers," he said. "Smaller or bigger, who cares as long as they are fair."
In addition to the number of jurors, the law also addressed jury pay, increasing it to $25 per day for the first day of service and $50 per day thereafter.
Akin and Sivia agreed that the jurors deserved increased pay, but Akin added that the state needed to find a funding mechanism for the changes.
“We need to increase jury pay and remove the financial crutch people use to get out of jury service, but we needed to do it differently,” he said.
“There’s no additional source of revenue,” he added, “and reducing the number of jurors is not going to offset the funding. There was no funding plans mentioned in the bill, and that’s why you don’t ram things through. It’s why you talk about them.”
He reiterated the importance of time, which was not considered when lawmakers “jammed” these new laws through before the end of the year. Instead, they failed to think out the new provisions entirely. Now a law increasing jury pay will be enforced without a plan in place to help deal with the extra costs.