Stack and Crowder begin asbestos docket transition

By Amelia Flood | May 13, 2010

Stack The changing of the Madison County asbestos guard is under way.



The changing of the Madison County asbestos guard is under way.

In just over two months, Madison County Circuit Judge Barbara Crowder will take the reins of one of the country's busiest asbestos dockets from retiring Madison County Circuit Judge Daniel Stack.

While Crowder is set to become the Third Judicial Circuit's asbestos judge after July 30, neither she nor Stack said in recent interviews that they foresee any radical changes in how the circuit handles its asbestos caseload.

"It's a work in progress," Stack said. "And I'm confident that by the time July 30 rolls around, she will be familiar with it all."

As the next months play out, both Crowder and Stack said more cases will be shifted to Crowder until the transition is complete. She is currently assigned several smaller batches of asbestos cases including those filed by the Edwardsville firm of Michael Bilbrey.

The two judges are discussing potential updates to bring the 2004 standing order signed by Stack to govern the asbestos docket in line with current case law developments and trim unneeded language. Both Stack and Crowder said that the handing off of the docket is in its initial stages.

Crowder has heard the asbestos motion docket several times since it was announced earlier this year that she would helm it.

Crowder oversaw her first mesothelioma trial in March.

b>The state of Madison County asbestos

Madison County is known for the size of its asbestos docket, attracting claims from all over the country.

This year, at least 200 asbestos cases have already been filed in Madison County.

Last year, 814 asbestos cases found their ways to the county's courts.

Madison County's filings peaked in 2003 when 953 cases were filed.
After several years of declining filings, the numbers are again on the upswing.

According to Stack, that is due to the increasing number of cases centered on so-called "take home" exposures and new medical research linking several new diseases to asbestos.

"The dose makes the poison," Stack said.

He explained that many of the cases he is seeing now relate to the relatives of those who were primarily exposed to the fibers and who may have breathed them in or absorbed them without ever being at their source.

Many of these cases now come from outside Madison County as well.
Stack said that all indications are that asbestos filings will peak and peter out by 2040, citing experts he's heard speak at conferences.

Meanwhile, Madison County's asbestos docket has added more trial dates for 2011 to handle the increases.

Retiring asbestos judge reflects

When Stack took over the asbestos docket six years ago, it meant a lot of running stairs. Stack handled criminal cases on the courthouse's second floor together with the Third Circuit's Drug Court.

"I used to have to run from the second floor to the third floor and from the third floor to the second floor," he said of his docket juggling early on.

At the time Stack took over as asbestos judge, Madison County had a backlogged docket.

Madison County Circuit Judge Nicholas Byron, who is now retired, had presided over the docket for more than 17 years.

Stack has since dealt with the backlog of cases and says he sees things now running smoothly, thanks in part to the familiarity plaintiff and defense lawyers have with the system.

"The attorneys get along with one another," Stack said. "They've been working together with one another or against one another for years. And they get the job done."

However, while Madison County may be a popular asbestos location, it does not deserve its reputation as a plaintiff's county either, Stack said.

He said he recalled a single plaintiff's verdict at an asbestos trial on his watch.

The verdict in 2010's first asbestos trial went to defendant Ford Motor Company in March.

Stack said he was most proud of changing the way forum non conveniens motions were argued on the docket. According to Stack, those motions were generally heard the week before trial before he took over the docket. He amended the standing order governing the docket to speed up those hearings while allowing for discovery.

"Of course you want some discovery time," he explained. "But you also want to be done soon enough that you don't have to tell some poor dying plaintiff, 'You have to start all over somewhere else.' Defendants were routinely filing as an affirmative defense that it was forum non conveniens. That's not an affirmative defense."

Stack also cited improvements in the docket's structure and procedure as well as its assignment to a single judge as reasons the county has been attractive to asbestos parties.

"It's difficult to find consistency in rulings when your cases are assigned to 26 judges," he said.

Transition time for new asbestos judge

It's not every day that an expert witness offers to show jurors a vial of a potentially lethal substance.

But that's what happened during Crowder's first asbestos trial in March.

While Crowder declined to have the vial of asbestos passed around, it was just one of the unknowns she has encountered as she has begun steeping herself in asbestos law.

"I'm getting exposed to all the motions," Crowder said of the transition. "He's (Stack) finalizing what he's doing and I'm starting up, so it's a good transition. We work well together."

Crowder has presided over dockets including small claims, domestic cases, and most recently a major civil docket.

While the size of the asbestos docket may give her pause, she said she is eager to take over.

"The real difference for me taking over the docket is that I will get to immerse myself in that area of law," Crowder said. "I have a lot of confidence. The judicial system works well. My job is to make sure things don't fall of that process. I have never had an assignment I didn't enjoy and I don't see how this is any different."

In order to prepare for her new role, Crowder took a seminar on scientific evidence in complex litigation held by the National Judicial College.

She's also been studying up on asbestos case law.

"I sincerely hope that after I've read these cases a few times, I'll get the hang of it," Crowder said.

Meanwhile, Stack is planning his next career move.

Stack said he's had several possibilities crop up for his next move.

However, some have been from law firms who are currently arguing cases before him.

That is one reason, he said, that the transition is taking place July 30.

"I can't talk to them while I'm hearing their cases," Stack said. "I need to be able to negogiate before I retire."

Stack has indicated in the past that he has considered going into arbitration or similar work after he leaves the bench.

While Stack navigates his future, he and Crowder both said that he will help her manage her civil case load while she gets a handle on asbestos cases.

Stack is still set to retire in early December as he has stated previously.

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