Luke Lindau

Luke Lindau, left, and his attorney Scott Hendler.

His withered face and raspy voice make it quite obvious that Luke Lindau is not a well man.

“The defendants hope Mr. Lindau dies before they have to face trial,” said Scott Hendler, Lindau's attorney in an asbestos lawsuit filed in Madison County Circuit Court. “Mr. Lindau has already exceeded expectation of life after being diagnosed with mesothelioma.”

A rare opportunity for an asbestos jury trial passed the 78-year-old Arlington Heights man by when Circuit Judge Daniel Stack dismissed 60 potential jurors Tuesday at 1:48 p.m.

The last time an asbestos case went to a jury trial here, retired U.S. Steel worker Roby Whittington of Gary, Ind. was awarded $250 million in March 2003.

Trial was averted because the 5th Judicial Appellate Court is mulling over Stack's ruling Nov. 8 that denied transferring the case to Cook County, a jurisdiction closer to where Lindau resides.

Jeff Hebrank, who represents defendants Bondex and Georgia Pacific, said the trial will be stayed until the appeals court weighs in on Judge Stack’s ruling.

“The big issue is where the case should be brought,” said Hebrank, who has claimed the case being filed in Madison County is an example of forum shopping.

Hebrank stated that Lindau's suit was originally filed in Austin, Texas, with a trial date in February. But the plaintiff wanted to move his case to Madison County even though he was never exposed in Madison County, Hebrank said.

Hendler argued that Madison County Circuit Court was the best venue for his client because of its "sophisticated case management system."

"State law allows us to file here because Mr. Lindau was exposed to asbestos when he worked at SIU (Edwardsville)," Hendler said.

When Stack denied defendant's motion to transfer the case to Cook County, Hebrank filed filed to have the case removed to federal court.

Within 42 hours of the filing, the federal court of the Southern District of Illinois remanded the case back to the state level claiming the defendants had no basis for removing the case.

Lindau, a former union painter, was diagnosed with mesothelioma--the deadliest form of asbestos-related cancer--in October 2002.

When asked if he would agree to a January trial date in Cook County, Hebrank declined to answer.

According to his complaint, Lindau alleges that during the course of his employment and during home remodeling work, he was exposed to, ingested or otherwise absorbed large amounts of asbestos fibers emanating from certain products he worked around and that they were manufactured or sold by the defendants.

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