Madison County Circuit Judge Daniel Stack has begun picking a jury for the county's first asbestos trial in more than a year.
Once the trial begins, Chester Black of Joplin, Mo. will try to prove he was exposed to and inhaled, ingested or otherwise absorbed large amounts of asbestos fibers emanating from products he was working with or around. If the case actually goes to trial, it is expected to last nearly two weeks.
Black, represented by Randy Gori of The Goldenberg firm in Edwardsville, filed suit earlier this year, seeking compensatory and punitive damages in excess of $400,000.
He was diagnosed with mesothelioma in May 2006.
Jeff Hebrank of Edwardsville, represents the defendant, Georgia-Pacific, which was granted defense verdicts in the last two Madison County trials they were involved in.
Asbestos cases rarely go to trial. In Madison County they have normally settled out of court for millions of dollars.
"The defendants knew of or should have known that the asbestos fibers contained in their products had a toxic, poisonous, and highly deleterious effect upon the health of people inhaling, ingesting, or otherwise absorbing them," Black's complaint states.
Black alleges the defendants are guilty of willful and wanton misconduct. He claims he has had to undergo costly medical treatment and that he suffers great physical pain and mental anguish as a result of his asbestos exposure.
He alleges that Georgia-Pacific and John Crane included asbestos in their products even when adequate substitutes were available and failed to provide any or adequate instructions concerning the safe methods of working with and around asbestos.
Black also claims he was exposed to asbestos during non-occupational work projects including home and automotive repairs, maintenance and remodeling.
Since Stack took over the asbestos docket in 2004, three asbestos cases filed by out-of-the-area plaintiffs have made it to trial in his courtroom.
She claimed she was exposed to asbestos while washing her husband's work clothes between 1966 and 1970.
O'Connell, of Burbank, Ill., claimed Bondex International and Georgia-Pacific were negligent for injuries she received from asbestos fibers that became airborne while she shook out her husband's work clothes.
The jury rejected that claim in five-and-a-half hours.
On May 19, 2005, after deliberating nearly nine hours over two days, Madison County jurors found in favor of Willard King and awarded him and his wife a relatively paltry sum of $500,000.
Georgia-Pacific was found not be at fault in the case.
That amount was reduced to almost nothing because the Kings had received settlements prior to taking on the defendants and those amounts reduced the verdict.
Gudmundson, of Cook County, Ill., alleged that the General Electric asbestos-insulated steam turbines in the Bausell caused her husband's mesothelioma.
However, it took a Madison County jury less than 20 minutes to rule in favor of defendant General Electric in an eight-day asbestos trial which was almost cut short by the presiding judge for its "weak" evidence.
Prior to those trials, Madison County jurors awarded millions of dollars to sick plaintiffs suffering from mesothelioma.
One defense lawyer who asked not to be identified said, "My clients do not want to settle some of these cases anymore like the old days when large verdicts almost tied their hands and forced them to settle even though we know our products didn't cause the illness.
"...It seems like juries demand good solid evidence now due to television shows like CSI, and not general studies and evidence that says asbestos in general is bad," he said.
Three trials held in Madison County between 2000 and 2003 resulted in verdicts of $16 million, $34 million and a whopping $250 million.
In April 2003, a Madison County jury ordered US Steel to pay Roby Whittington of Indiana $250 million for his asbestos-related illness. The award was reduced for much less following the trial.
In Black's case, and all asbestos cases in Madison County, John Crane is also involved in the trial, but it is doubtful any evidence will be presented against the company.
In the past, John Crane has been accused of being a "plaintiff's foil."
U.S. Steel attorney Edward Matushek said he noticed something strange in the Whittington trial. In jury selection, attorneys for two other defendants conferred with attorneys for the plaintiff.
"I had never seen that occur in voir dire before in my entire career," said Matushek, of Matushek, Niles & Sinars, in a June 9, 2005 interview with Record reporter Steve Korris.
"In my opinion," Matushek said, "the preemptory challenges used by those co-defendants (Whittington v. U.S. Steel) helped the plaintiff by striking jurors who appeared favorable to the defense.
"The court's allocation of six challenges per side became, in effect, 10-to-two in favor of the plaintiff."
Ed Burns, of O'Connell & Associates in Elgin, has been the lead defense attorney for John Crane during trials and motion hearings.
Over the years, he has vigorously opposed transfer of venue cases out of Madison County, stating his client does significant business in the county. Leaving, he has said, would "hurt" his clients' business because it would appear as if John Crane had something to hide.
In the Gudmundson trial, John Crane was granted a directed verdict after the plaintiff's case rested.
That caused the main defendant to ask Stack for a mistrial.
"(This is) an improper use of the court and it borders on fraud," said GE attorney John Fitzpatrick of Leclair Ryan in Richmond Virginia.
Crane filed its motion for the directed verdict after plaintiff's attorney David Greenstone rested his case.
Fitzpatrick claimed that Greenstone made a deal with John Crane not to present any evidence against John Crane.
He argued that no evidence was entered against John Crane nor were any witnesses listed. Fitzpatrick called the practice "highly suspect."
Greenstone told Stack that to accuse someone of fraud in open court is a "slanderous allegation."
Not presenting evidence against Crane is "between me and my client," Greenstone added.