Plaintiffs' attorneys emboldened post election

By Steve Gonzalez | Jan 25, 2007

Ed Murnane

Judge Callis

Judge Cueto

Signs that Madison and St. Clair county courts are being patronized by plaintiffs' lawyers with renewed energy since November's Democratic election sweep are popping up in new asbestos, class action and FELA filings.

Out of state plaintiffs, out of state lawyers and a revival of the near extinct class action lawsuit are emerging in both counties.

But the leader of the Illinois Civil Justice League (ICJL) says he's not worried yet.

"The conduct of attorneys is separate from the conduct of judges," Ed Murnane, ICJL president said. "There is nothing that prohibits them from filing (lawsuits). The real test is how they are dealt with by Madison and St. Clair County judges."

Murnane said he hasn't seen anything that suggests judges in Madison and St. Clair counties aren't serious about fixing problems in their courts.

Last month Madison and St. Clair counties crawled further out of the American Tort Reform Association's "judicial hellhole," receiving recognition for turning away cases that don't belong. Since ATRA created the annual ranking of the nation's so-called worst venues, Madison County has appeared on the list.

The reputation was earned in part due to studies by the ICJL and ATRA, examining class action suits and asbestos litigation, showing that Madison and St. Clair County courts have been skewed in favor of plaintiffs and against business and medical communities.

"I'd be real encouraged if judges send a clear message that legitimate law suits are welcome in the proper venue, but they're not open for lawsuit abuse," Murnane said.

Stumping for retention in the November 2006 general election, Madison and St. Clair County judicial candidates pledged to clean up the courts that had earned so much negative attention.

In particular, Chief Judge Ann Callis acknowledged problems existed and acted by instituting several court reforms during campaign season, such as limits on out-of-state lawyers, cases filed under seal and subsitution of judge motions.

Callis said before the election, "...judges in the civil division have taken a strong stand by rejecting cases that don't belong here.

"We also have instituted a local judicial rule limiting the ability of class action lawyers to object repeatedly to judges, effectively 'shopping' for a preferred judge."

Prior to the election, then chief Judge Jan Fiss also acknowledged problems in the courts and vowed to find solutions.

Many forecast the legal reform movement ushered in under President Bush's administration, will be swept out in the Democratically-controlled congress in part due to the stance being taken by the nation's leading trial lawyer organization. Formerly known as the Association for Trial Lawyers of America (ATLA), last year the group shed "trial lawyers" from its name, changing to American Association for Justice.

Murnane said trial lawyers are "chaffed a bit" by the challenges business organizations have set up. Groups like ICJL, ATRA and the U.S. Chamber of Commerce have spent considerable resources to raise awareness about lawsuit abuse.

"Trial lawyers made it clear they're going to become very aggressive," Murnane said. "Things are not good for them."

Several factors in Madison and St. Clair County Circuit Courts suggest that plaintiffs' attorneys are as bold as ever since the recent Democratic sweep.

FELA fury
In recent years, hundreds of lawsuits against railroads have rolled in to Madison and St. Clair Counties, often by out-of-town or out-of-state claimants, by way of the Federal Employers' Liability Act.

Plaintiffs in a pack of recent FELA asbestos lawsuits were unaware of the claims being made on their behalf in St. Clair County Circuit Court.

Last week three suits were filed against Consolidated Rail Corp. (Conrail) and American Premier Underwriters by retired Mount Carmel, Ill. railroad workers Forrest G. Webb, Loren C. Gerrish and William P. Hawf.

Belleville attorney William P. Gavin is the lead attorney listed on the complaints and Virginia-based firms Glasser & Glasser and Moody, Strople, Kloeppel, Basilone & Higginbotham are listed as co-counsel.

It's not the first time the law firms have joined forces to sue railroads. On at least one other occasion, the team sued Conrail in St. Clair County on behalf of another Mount Carmel retired railroad worker, James Gaetz in November 2006.

Contacted by phone, Webb, 89, said he was put in touch with Glasser & Glasser of Norfolk, Va. through people from the railroad approximately four-to-five years ago.

Webb, who worked from 1939 until 1942, and again from 1945 until 1982 as a fireman and engineer, was seen first by doctors in Olney, Ill. and later sent to a screening in Washington, Ind. where he was diagnosed with emphysema.

Mount Carmel, population around 8,000, is the county seat of Wabash County located on the western bank of the Wabash River bordering Indiana.

When asked if he was ill, Webb replied, "No, I'm not sick. I cough a little."

He recently received a $90 check from Glasser & Glasser. All totaled, Webb said he has received a little over $8,000, including compensation from the Johns Manville asbestos settlement.

The Federal Employers Liability Act was passed by congress to protect and compensate railroaders injured on the job. Unlike state worker's compensation law, FELA requires the injured railroader to prove that the railroad was "legally negligent," at least in part, in causing the injury.

Gerrish, 79, is another plaintiff unaware that a lawsuit was filed on his behalf Jan. 17 in St. Clair County. Employed as a brakeman and conductor from 1952 until 1985, his lawsuit --and the others-- claims exposure to "asbestos dust or fibers, silica dust and/or coal dust caused (plaintiff) to contract asbestos-caused diseases and/or injuries."

Gerrish said he was "tested a couple of times" including once in Olney, Ill. He, too, said he was put in touch with Glasser & Glasser through contacts in the railroad.

He said he has received approximately four checks that were $400 or less each.

When asked if he was sick, Gerrish answered, "Not that I know of."

A third Mount Carmel plaintiff, William P. Hawf, could not be reached by phone.

Class action
A class action drought that began after President George Bush signed the Class Action Fairness Act into law in February 2005, may have come to an end. Since November's general election, the spigot has gradually opened with three new class actions in Madison and St. Clair Counties.

Prior to the election, only one had been filed since November 2005. Only four were filed in both Madison and St. Clair Counties in nearly two years -- after CAFA and before the election.

The three newer cases include two in Madison County and one in St. Clair County.

State Farm
National class action reform shifted lawsuits seeking more than $5 million out of state courts and into federal court. But in the days before CAFA, more than 40 class action lawsuits were filed in Madison County against insurance companies over so-called "silent PPOs."

State Farm is the latest target of two Illinois chiropractors alleging the company lowered payments by claiming preferred provider organization (PPO) agreements, but without actually performing any of the associated obligations to those agreements. (See related story).

Frank Bemis, one of the chiropractor plaintiff's, is part of at least six other class action lawsuits against insurance companies in Madison County.

On Dec. 29, 2006, Belleville attorney Christopher Cueto filed a class action suit against AT&T in St. Clair County alleging the company charged "hidden fees" for connecting local calls from its directory assistance service.

Linda Cassin, of Belleville, claims the phone company charged 12 cents per minute for phone calls to local toll numbers when those calls had been connected by a directory assistance operator.

The suit claims the extra charge is not included in the $1.25 fee charged to obtain a number from directory assistance.

Cueto is the brother of St. Clair County Circuit Judge Lloyd Cueto, who was elected, with some controversy, to another six-year term in November and the brother of convicted felon and St. Clair County powerbroker Amiel Cueto. Judge Cueto, who ran for election rather than retention to avoid having to gain at least 60 percent of the vote, presides over major civil litigation.

Christopher Cueto is currently feuding with class action attorney Stephen Tillery over a competing class action lawsuit each of them has brought against GlaxoSmithKline. Tillery and his co-counsel obtained a $63.8 million settlement in a suit over the anti-psychotic drug Paxil in Madison County last October, which effectively shut down a similar suit Cueto has pending in St. Clair County.

Also on Dec. 29, an Edwardsville man filed a class action suit against Terminix and The ServiceMaster Company in Madison County Circuit Court claiming the defendants failed to provide termite services as required by statute.

Plaintiff Milton Gerstenecker claims the defendants violated the Illinois Consumer Fraud and Deceptive Practices Act by concealing that they failed to provide proper termite services.

He is represented by Elizabeth Heller and W. Stan Faulkner of the Goldenberg firm in Edwardsville, Christian Hartley of Charleston S.C. and Tom Campbell of Birmingham, Ala.

Gerstenecker claims that Terminix was uniformly obligated to provide services to protect homes from termite infestation through assuring the effective application and maintenance of chemical barriers in the soil under and around the foundation of his property.


While asbestos cases are on the decline in Madison County -- once the nation's busiest asbestos clearinghouse -- out-of-state plaintiffs are still utilizing Madison County Circuit Judge Daniel Stack's hefty asbestos docket to collect settlements ranging from $3,000 to $3 million.

SimmonsCooper of East Alton is leading the charge of bringing such claims. Since the election the firm has filed more than 40 suits on behalf of residents from Florida, Delaware, Utah, New Mexico, Oregon, Iowa, Indiana, Missouri, Wyoming and Connecticut.

Less than a month into the new year, the firm has already filed at least 12 suits from non-residents.

But SimmonsCooper is not alone in its gusto. The Goldenberg firm of Edwardsville, Korein Tillery and the O'Brien law firm of St. Louis have also filed suits for people outside of the state.

A vast majority of the suits being filed now are brought by plaintiffs who were exposed to asbestos second-hand -- from a family member's clothing, instead of exposure while working with or around asbestos.

While this is certainly not a new theory, the cases are on the rise.

Over half of the 40 suits filed by SimmonsCooper post-election are suits filed by plaintiffs claiming second hand exposure.

While the complexion of Madison County's asbestos docket changes, one consistent mark is that all of the plaintiffs name defendant John Crane -- a mechanical seal manufacturer with offices in Chicago -- as the reason for filing their suits in Illinois. However, John Crane is almost always dismissed from the suits without having to pay any damages.

During a Madison County asbestos trial in 2005, defense attorney for General Electric, John Fitzpatrick, stated that plaintiff attorney David Greenstone made a "sweetheart deal" with John Crane by not presenting any evidence or listing any witnesses against John Crane.

"(This is) an improper use of the court and it borders on fraud," said Fitzpatrick of Leclair Ryan in Richmond, Va.

After a 2003 asbestos trial that found in favor of plaintiff in Whittington v. U.S. Steel, defense attorney Ed Matushek called John Crane a plaintiff's "foil."

Ann Knef contributed to this report.

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American Association for Justice Madison County Circuit Court

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