LOS ANGELES -- Both sides of the Madison County bench, not to mention the bench as well, gathered in California this week for a conference of who's who of asbestos professionals.
Among those presenting during the conference were plaintiff attorneys Randy Gori and Perry Browder, defense attorney Kirk Hartley and Madison County Circuit Court Judge Daniel Stack.
The conference focused on the emerging trends in asbestos litigation, a massive aspect of civil law that has evolved over nearly four decades, from a handful of trailblazing cases in the 1970s to hundreds of thousands filed each year in the late 1990s.
Though overall the number of cases slowed in the early part of this decade, the asbestos cases are on the rise again, even going global.
Stack joined a roundtable discussion with fellow judges from Philadelphia, San Francisco and New York to discuss the challenges of navigating through the enormous volume of asbestos cases. The judges offered practical suggestions from their own courts, each of which has an active asbestos docket.
Stack's docket, which had declined in his first couple of years on the bench, has risen dramatically in the past year. Asbestos cases in Madison County hit a high of 863 in 2003 and a low of 266 cases in 2006. In 2008, more than 600 cases were filed.
"The asbestos dockets all over the country are on the rise," Stack said in late 2008. "Wherever there is a docket the case numbers are going up."
That rise in cases was the primary focus of the judges' roundtable discussion, offering practical advice to the attorneys who routinely come before them.
"They had some very specific questions for us," Stack said after the conference. "They knew they couldn't ask us substantive law questions, so our panel was focused on being very practical, what kind of things we can do to accommodate the large number of cases with this docket."
Stack said this particular conference was unique in that both sides of the bar were well represented, both in attendance and those presenting. Many of the specific topics discussed were addressed by both plaintiff and defense attorneys, including those who regularly oppose each other in court.
"I was very impressed with it because it has both sides of the bar represented," Stack said. "Sometimes they had rather heated discussion, and you could expect that, but it was a wonderful communication, a good thing for a judge to listen to."
But Stack said being a judge also limited his participation.
"I don't participate in the entire conference. A lot of it I don't need to hear, or think it's appropriate to hear," he said.
Stack was most interested in learning form the other judges how different things are in other asbestos dockets around the country. Though he didn't get much time to talk about how Madison County's docket works, he came away even more pleased with his local court.
"We have everything done by one judge, we have a standing order so everyone knows how to operate, everybody sort of knows what's going on," Stack said. "Both sides of the bar here work very well together with any problems... There's no question it's more efficient. Judges long before me set it up. We've made adjustments over time, but it works. All those things help."
Stack said consistency is the key.
"That's one of the advantages of our system because everybody has a feel what I'm going to do," he said.
Randy Gori presents
Randy Gori, whose firm Gori, Julian & Associates has poured cases back into Madison County the past year, spoke on the emerging trend of lawsuits on behalf of independent contractors who are exposed to asbestos.
Gori's presentation was part of a series on premise liability cases, which focus on people who've been exposed because of their proximity to a property that had heavy asbestos use, including industrial plants in West Virginia, naval shipyards in Virginia, or oil refineries in Texas.
Gori stressed the cases are valid despite the objections of defendants who say they didn't employee the contractors, what Gori described as the "it wasn't me!" defense.
"You have to ask what kind of control they exerted on the plaintiffs while they were on the property," he said.
Control, he explained, is as simple as a chain-of-command that may start with security guards allowing access to a site, clear up to directions for where a contractor can work, have access and conduct his or her business, or the protocols and procedures approved by the president of the company.
"I think all of this bears strongly on the issue of control," he said.
Defense point of view
As would be expected the defense attorney presenting on these topics had a different view of premise liability lawsuits. Scott Masterson, an Atlanta-based defense attorney admitted trying a premise liability case in plaintiff-friendly courts like West Virginia, California and Illinois can be "a big challenge," he said. "But, I think they are defensible."
The defense, Masterson said, had to be even more thorough than the plaintiffs, learning everything they can about the property, the amount of exposure possible, the steps the company took to regulating and protecting people from that exposure and the types of jobs people did that exposed them to asbestos.
"It's not the possibility, it's the probability, of contracting the disease," that is central to a case, Masterson said.
Chicago defense attorney Kirk Hartley, of Butler, Rubin, Saltarelli & Boyd, presented on the rise of asbestos litigation around the world.
"Asbestos fiber use outside the U.S. far exceeded use in North America and continued for many years at high numbers," he said.
While asbestos use in the United States had nearly run its course by the 1970s, it continues in other parts of the globe, particularly in Russia, China and India.
Ironically, Hartley said, that as European nations begin to feel the pressure of asbestos litigation, including the rise of potential class action lawsuits, the courts are seeking ways to avoid "the American result," he said.
Madison County plaintiff attorney Perry Browder of SimmonsCooper, one of the country's largest asbestos firms, spoke about the evolution of asbestos cases in industrial settings.