Madison - St. Clair Record

Monday, September 23, 2019

Local asbestos judges wary of federal trust fund bill

By Steve Stanek | Apr 5, 2005

Circuit Judge Daniel J. Stack

20th Circuit Chief Judge Jan Fiss

Rep. Mark Kirk (R-Ill)

As federal lawmakers attempt to bring hundreds of thousands of asbestos-related lawsuits under control, two local judges have recently made their own moves to control the asbestos dockets in their courtrooms.

Asbestos cases in St. Clair County will advance only if the plaintiffs exhibit measurable impairment or disability allegedly related to asbestos exposure, under an order signed Feb. 25 by Chief Judge Jan Fiss. Cases filed by persons who do not exhibit impairment or disability would be placed in a registry and held inactive until cases involving actual impairment or disability are resolved.

Fiss's order follows similar moves by Madison County Judge Daniel Stack to tighten the criteria for asbestos cases, including requiring that such cases have a tie to the county. In January Stack dismissed 25 asbestos cases because they lacked the requisite Madison County connections.

Meanwhile, Rep. Mark Kirk (R-Ill.) two weeks ago introduced the Fairness in Asbestos Injury Resolution (FAIR) Act (HR 1360) to create a national trust fund to pay asbestos claims and reduce costly litigation.

"My order simply mirrors what's already happened in New York City, Connecticut, Massachusetts, Cook County (Ill.), Madison County and the federal system, which has created a registry for non-mesothelioma cases," said Fiss to explain his order.

Mesothelioma is a cancer of the lining of the lung that has been strongly linked to asbestos. However, most plaintiffs in asbestos cases show no symptoms of illness.

"I saw the wisdom in the arguments about creating the registry, so that the more serious cases would be reached first," Fiss said. "Cases on the registry would be heard later, when they meet certain criteria" related to the development of symptoms associated with asbestos exposure.

Those criteria are based on the American Bar Association's Standard for Non-Malignant Asbestos-Related Disease Claims, adopted in 2003.

"This Court has reviewed the ABA criteria and understands its purpose is to provide an objective basis to determine when as asbestos-related disease has progressed to the point of impairment or disability that can be measured," Fiss said in his order.

His order applies only to cases filed after the Dec. 20, 2004 hearing which led to the order. Cases that were filed before the hearing are not affected, Fiss said.

Asbestos-related illnesses often take years or even decades to develop, and not everyone who has been exposed to asbestos will fall ill. Because most of those who have filed suit have no asbestos-related illness -- and may never become ill -- there is fear that many healthy plaintiffs will receive compensation, draining funds that could have been used for those who fall ill.

In his order, Fiss wrote, "This Court is also aware of the flood of non-impairment claims plaguing dockets in jurisdictions all over the United States. Flooding this Court with non-impairment claims systematically generated by for-profit litigation screening companies would replicate the administrative difficulties of other jurisdictions and undermine the fair administration of justice."

A RAND Institute for Civil Justice study last year found that almost 90 percent of recent claimants have no asbestos-related illness or disability. The study further said 8,400 businesses have had claims made against them by more than 600,000 claimants.

About $60 billion in damages have been paid in asbestos cases since the 1980s, half of it to trial lawyers, according to the RAND study.

In 2003-04, 1,430 asbestos cases were filed in Madison County, about four times more than in Cook County, which has nearly 20 times the population, according to the Illinois Civil Justice League.

If Kirk's FAIR Act were to become law, asbestos dockets in Madison, St. Clair and other jurisdictions around the country would virtually dry up, as most cases would fall under the trust fund provisions. Defendant companies and their insurers would put up $140 billion for the fund. The bill builds on the asbestos trust fund framework negotiated by U.S. Senator Bill Frist (R-Tenn.) last year.

"Nationwide, thousands of terminally-ill cancer patients and disabled workers face delays in receiving badly-needed compensation as their cases sit in clogged state courts while almost 60,000 workers have lost their jobs because of asbestos-related bankruptcies," Kirk said in a statement announcing his bill. "Many patients end up receiving pennies-on-the-dollar settlements from bankrupt companies. It is time to put patients ahead of plaintiffs and dramatically reduce the cost of asbestos litigation."

An individual with an eligible disease or condition would be allowed to file a claim against the fund up to four years after receiving a medical diagnosis. Compensation would conform with a table of defined medical conditions and compensation values.

Judge Stack, who took over the Madison County asbestos docket last August, said he would not mind if federal action ends up taking asbestos cases out of the county. However, Stack has not read Kirk's bill and said many questions need to be answered.

"I think it's another of those areas where, before we create a new bureacuracy, we need to look hard to see if it will have the desired effect," Stack said. "There are asbestos dockets all around the country. To replace them in one place . . . Where will we put it? Is everybody going to have to go to Washington, D.C.? Talk about inconvenient.

"Is it really going to accommodate people who have an immediate need or will it drag them out longer?" he said. "It seems to me it would take a lot of people and not be an easy thing to start. As far as I'm concerned -- I don't want to sound lazy here -- but if it takes a load off my docket, that's fine. If it will have these great effects and alleviate problems . . . but I'm not sure it will do that."

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