Weber's caseload yanked by plaintiff's attorneys

By Steve Korris | Jan 25, 2006

Plaintiff attorneys have turned Madison County Circuit Judge Don Weber into a robed ghost by yanking at least 35 big cases out of his court.

They accomplished this by moving for substitute judges.

In Illinois, a party to a civil case can move once for substitution without cause, if the judge has not made any substantial ruling. The judge must grant the motion.

All the stars of the plaintiff's bar – the Lakin Law Firm, SimmonsCooper, Stephen Tillery and Rex Carr – have joined the substitution blitz, along with the less famous.

As a result, Weber will run for election in November with no record in the kinds of cases that have made Madison County a litigation magnet - consumer class actions, negligence, product liability and medical malpractice.

Weber took office last October, after Illinois Supreme Court Justice Lloyd Karmeier appointed him to replace retired Circuit Judge Phillip Kardis.

Karmeier and Weber belong to the Republican Party. Prior to Karmeier's appointment of Weber, all judges in civil cases in Madison County belonged to the Democratic Party.

The blitz began Nov. 9. In most cases, Weber received substitution motions while preparing for hearings on motions that would have required substantial rulings.

Chief Judge Edward Ferguson has assigned Weber's former cases to Circuit Judges Nicholas Byron, Andy Matoesian, George Moran and Daniel Stack.

Attorney Jack Joseph of Chicago, a member of the civil practice committee of the Chicago Bar Association, said, "It seems to be that the bar is being unfair to Judge Weber without giving him a chance to see if he is going to violate his oath in some way."

Joseph helped draft a 1994 statute that allows one free substitution. The statute ratified a rule that case law had already recognized.

The rule protects a party from trying a case before a judge in whom the party has no confidence, Joseph said. He said he would not change the rule.

Joseph said he had not heard of Weber. He said he had not tried a case in Madison County in many years.

He asked if Weber made pronouncements before taking office about how he would rule on matters. The answer was no.

Joseph asked how many judges have taken Weber's former cases. The answer was four.

"I would hope that the other four judges would complain about the situation," said Joseph. "I think a member of the court should be respected as such, especially in the absence of any history other than the fact of his appointment.

"It seems unfair to predict that he is going to behave in an unfriendly manner just because of the source of his appointment."

Although a party can automatically obtain one substitution, parties in most cases choose not to exercise that right. The tactic can backfire.

A party who knocks an apparently unfriendly judge off a case might find himself stuck with an even less friendly judge.

If a party gains an apparently friendly judge by substitution, the other party can knock off that judge and bring in yet another.

In cases with lots of plaintiffs and defendants, substitutions have set off chain reactions. Class actions have landed in the laps of associate judges because free substitutions have knocked off all the circuit judges.

Five years ago, when Stack handled criminal cases, the proposed class action case of Roger Ellis vs. Allstate Insurance bounced to him after four judges granted free substitutions and a fifth judge recused himself. The case is still pending before Stack.

When Weber took office, he assumed Kardis's cases through an informal process. Chief Judge Ferguson signed no orders assigning the cases to Weber.

Weber began to schedule motion hearings Oct. 17. He also began to prepare for trials that Kardis had scheduled.

On Nov. 2, Weber set the negligence claim of Wanda Howell vs. Edwardsville Healthcare for a case management conference Nov. 23.

Attorney Thomas Hildebrand, representing Howell, moved Nov. 9 for a substitute judge. Hildebrand did not attach a proposed substitution order.

Weber received three substitution motions from plaintiffs Nov. 14, with proposed orders. He signed all three on the 17th.

Two more motions arrived on the 17th, and another on the 18th. Weber sent Hildebrand a letter on the 18th, requesting a proposed order. Two motions arrived on the 21st.

Weber apparently determined to stem the tide. He set a hearing on one substitution Dec. 13, and a hearing on another Dec. 16.

Hildebrand's proposed order arrived on the 22nd. Another motion arrived on the 23rd. On the 28th, Weber received six substitution motions.

On the 29th, he signed three substitution orders.

Two motions arrived the last day of November, and two on the first of December. For one of the motions he set a Dec. 12 hearing.

On the 2nd, Weber cancelled a hearing he had set on substitution, and he signed the case away. He signed seven other substitution orders that day.

The following week, he received four motions. He did not sign any. He continued to set some substitution motions for hearings.

On Dec. 12, Weber held a hearing on a substitution motion in a negligence claim of Patty Merideth and Patsy Garland vs. Jason Porter. "The Court having considered the matter carefully," he wrote, "hereby grants plaintiff's motion."

He cancelled three hearings on the 12th. That day and the next, he signed 10 cases away.

After that, Weber granted motions as they arrived, with two exceptions.

Tami Stalcup, mother of the late Justin Michael Stalcup, moved for substitution Dec. 21 in her claim that drug store owner Michael Cleary caused her son's death.

According to a suit that attorney Hugh Talbert filed for Tami Stalcup, Justin died from ingesting drugs that came from the Medicine Shoppe, which Cleary owned.

The suit also names Jodi Sandbach as a defendant, for allegedly selling or giving him the drugs.

Cleary's attorney, Jim Mendillo, objected to substitution Jan. 5. He argued that Stalcup had already used her free substitution.

According to the case file, Stalcup moved Moran for substitution Jan. 28, 2005. Moran granted it, and Ferguson assigned the case to Kardis.

Weber referred Stalcup's motion to Ferguson, who assigned Byron to hear it. Byron set a hearing Feb. 10.

On Jan. 13, Weber found a way to keep a case – or at least half a case. In a proposed class action with a husband and wife as plaintiffs, Weber granted substitution for the wife but not for the husband.

Julie Meyer and David Meyer had sued HomEq Servicing last year, charging that it cheated borrowers through improper use of credit reports.

Ferguson at first assigned the case to Moran, but in December Moran disqualified himself from cases involving the attorney for the Meyers, Stephen Tillery.

Ferguson assigned the case to Weber, who set a Jan. 13 hearing on all pending motions.

One motion concerned the admissibility of evidence about what defense attorney Deborah Hawkins referred to as "Mr. Meyer's reckless homicide conviction."

Hawkins argued that the conviction was relevant to his ability to represent a class of plaintiffs. She argued that his conviction bore on his credibility.

Two days before the scheduled hearing, Julie Meyer moved for substitution.

Weber granted the motion Jan. 13, but only as to Julie Meyer. Weber declared that David Meyer's case would remain before him.

Weber set a Feb. 17 hearing on all pending motions in David Meyer's case.

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