Appellate Court calls asbestos attorney's bluff

By The Madison County Record | Aug 21, 2011

In poker, the cards speak for themselves. In other words, a hand is what it is – regardless of what the player may think it is.

This is obvious when a player overstates the value of his hand. If he gets confused and says he has a flush, but it's really a straight, the hand is counted as a straight.

It's less obvious when a player unintentionally understates the value of his hand. If he says he has a straight, but puts down a flush, a flush it is.

Our court system operates somewhat differently. As a rule, judges and jurors are not allowed to take note of facts not entered into evidence, even if they are aware of them and they happen to be pertinent.

This doesn't mean, however, that judges and jurors are not allowed to think for themselves.

Asbestos-conspiracy attorney James Wylder apparently thinks it does.

Wylder is upset that judges for the Fourth District Appellate Court reversed a lower court decision awarding nearly $700,000 to his client -- and overruled two Fourth District precedents that had sustained Wylder's asbestos-conspiracy theories.

Key to the case was testimony that the companies conspired to hide a 1943 report concerning tumors in laboratory mice. The appellate court concluded that the companies suppressed the report because it lacked controls and thus was inconclusive.

Wylder complains that the justices defended the alleged conspirators, Honeywell and Pneumo-Abex, better than the companies defended themselves.

"The (appellate court) majority's effort to overturn the verdict of the jury by raising arguments neither presented nor preserved by the defendants is contrary to principles of appellate review," he argued in a petition for reconsideration of the decision.

Wylder's wishes notwithstanding, judges should be expected to value dubious evidence.

While it's easy to sympathize with someone who accepts defeat gracefully, James Wylder seems a sore loser. It's never a good idea to start counting your winnings before the hand is played out.

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