EDWARDSVILLE – In America's asbestos court, where procedure and reality seem to run in opposite directions, lawyers debated politely for 45 minutes on Wednesday about how many hundred trials to schedule for the year after next.
No one at the hearing before Circuit Judge Barbara Crowder expected more than a trial or two to actually occur in 2013, but only one lawyer proposed not to pretend.
Union Carbide lawyer Kent Plotner, of Heyl Royster, told Crowder she should set cases for trial as needed without pre-slotting.
He said Crowder could determine where to slot them when they come in.
"When a case comes in and the merits of the case stand alone, your honor can set that case," Plotner said.
He said it didn't make sense to have slots for cases that don't exist.
Madison County hosts the busiest asbestos docket of any state court in the nation. Of the hundreds of cases filed here each year, most of the claims are from out of state residents, and most of the claims are filed on behalf of plaintiffs suffering from the most serious asbestos-related disease, mesothelioma.
Close to 3,000 mesothelioma diagnoses are made in the United States each year and close to 500 mesothelioma claims are filed in Madison County each year.
In 2010, there were 752 asbestos cases filed in Madison County. This year's figures are on pace to exceed last year's total.
Defendants have argued that Madison County's advance calendar setting encourages plaintiff lawyers to go out and market the asbestos docket.
And they claim that during any given trial week (there are 28 this year) - where 19 individual cases are set for trial - defendants don't know on Monday morning of that trial week which plaintiff among 19 will go to trial.
After Plotner spoke, no defense lawyer seconded his motion.
Crowder took under advisement a proposal from plaintiffs to set 27 trial weeks with 19 trials a week, a total of 513 for the year 2013.
The firm that files the most Madison County asbestos cases, Simmons of Alton, has requested 10 trial dockets for 2013. In 2011 and 2012, the firm was assigned nine settings.
And the second most prodigious asbestos firm, Gori and Julian of Edwardsville, has requested seven trial dockets for 2013, up from six the firm was assigned in 2011 and 2012.
Normally, the court's annual hearing is held in March to set the following year's trial docket.
Crowder's bailiff Rod Schmidt said about the earlier setting, "We like to be progressive."
Crowder is full time asbestos
Chief Judge Ann Callis appointed Crowder as Madison County's first full time asbestos judge last year, transferring all her pending cases to other judges.
Crowder succeeded retired Circuit Judge Daniel Stack, who managed the asbestos docket for five years while presiding over other civil suits.
While Crowder said she does not know how many cases she currently presides over, the ones that are moving are ones with more serious claims.
"The only cases on this docket are people with a terminal diagnosis," she said. "They're dying or already dead."
She said she is trying to dispose of case dated 2009 and older, including ones from 2005.
"One thing I do is try - dismiss or settle," she said. "It's not doing any good to have old cases sitting around. It's a 'get your ducks in a row' and get cases done."
At the hearing
For Crowder's hearing on the 2013 trial calendar, about 60 lawyers showed up.
After Plotner pitched his plan, defense lawyer Brenda Baum of Hepler Broom said the plaintiff proposal sets up many conflicts among plaintiff firms.
She said five firms asked for slots on June 17, 2013, for instance. And, two to four firms asked for slots on other days, she said.
The total shouldn't exceed 475 slots, with no more than two firms on any date, she said.
Baum proposed a minimum number of filings for a firm to qualify for the docket.
Defense attorney Ray Fournie, of Armstrong Teasdale, said multiple firms on one docket made it hard to anticipate the time and effort of preparation.
He said that with one firm, defendants can negotiate properly.
He said the number of firms with standing on Madison County's docket went from eight to 10 since last year.
He said there was a potential increase in the number of firms with no connection to Madison County. He also said Crowder can't prevent outside firms from filing.
He said he recognized the predicament their constitutional right creates.
Most plaintiff lawyers in the room kept quiet.
No one from the Simmons or Gori firms spoke.
Five commented briefly, one so softly that people 10 feet away couldn't hear.
Only Elzabeth Heller, of Mark Goldenberg's firm in Edwardsville, scored points on the plaintiff side.
She said defendants changed their theme from, "If you build it they will come," to, "Madison County, the last open jurisdiction."
"The sky is not falling," she said. "The system is working."
She said cases without merit are being dismissed or transferred.
She said the Goldenberg firm filed 86 cases this year, 59 of them mesothelioma cases. Her firm will file in excess of 100 before the end of the year, she said.
"We represent more than 3,000 Madison County residents with non-malignant cases on the deferred docket," Heller said.
She said they track those cases to see if clients develop lung cancer.
"We have a backlog of 40 ready to be set," she said.
Crowder said she would get an order out quickly.
After the hearing, Fournie said a trial docket with 513 slots was a challenge for the court and more so for defendants.
"We are here all the time," he said.
"Trying to juggle that without a huge financial drain on our clients is tricky," he said.
He said he represents General Electric, Hercules, Chicago Bridge and Iron, and others.
He said a central forum simplifies litigation because, "A lot of people worked at a lot of different places."
He said he didn't know how many asbestos suits he currently defends.
"If there are 500 slots, one of my clients is going to be in 490 of them," Fournie said.