Whether non-settling defendants in Madison County asbestos cases are entitled to know set-offs prior to trial is subject to interpretation - with plaintiff and defense bars trading barbs that their opponents want to "game" the system.
Illinois Trial Lawyers Association President Jerry Latherow said that defendants in Madison County asbestos cases are not deprived of their right to show comparative fault in accordance with the Illinois Joint Tortfeasors Contribution Act. He said that defendants get settlement monies from other defendants if there is a verdict against them.
Latherow responded to comments made by former Madison County Circuit Judge Don Weber (and current candidate for state representative) who would like to amend the tortfeasor contribution statute so that regardless of local rules or interpretations, a defendant has the right to show comparative fault before trial.
Weber said recently that local asbestos rules effectively deprive defendants that right as outlined in the Illinois Joint Tortfeasors Contribution Act.
Weber is seeking the Republican nomination for state representative in the newly redrawn 108th House District that includes part of the Metro-East. He served as circuit judge, by appointment, from November 2005 through the end of 2006, after Circuit Judge George Moran, Jr. resigned. Weber ran for the circuit seat in 2006, but lost the election to Dave Hylla.
Latherow disagreed with Weber's assessment.
"I just see this as an attempt to try to make political hay out of the issue," Latherow said.
Latherow said that defense counsels are trying to manipulate the system. For example, he said, "If the defense in a million dollar case knows in advance that there was a prior award of $700,000, they will they argue to the jury in their case that an amount that is $700,000 is reasonable."
"In such cases the jury will say they are being fair," he added. "Then after the case is settled the defendant will get a credit for the $700,000 in the prior case. The defense counsel's client in the tort case will have to pay nothing – which is exactly what the defendant wants."
A frequent critic of the Madison County asbestos docket, Mark Behrens of the law firm of Shook, Hardy & Bacon in Washington D.C., has a different opinion. He believes that plaintiffs' attorneys are those who "are gaming the system."
"Defense counsels at trial want to be able to put on the full story of the plaintiff's exposure history either for the purpose of showing someone else was entirely at fault for the plaintiff's harm or for the jury to make a fair evaluation of the limits of the defendant's culpability," he said.
Behrens provided an example of a defendant company that makes brakes shoes. The plaintiff had a job as an insulator, yet on one occasion changed his own brakes. The brake shoe company's attorney wants the evidence of all the exposure of the plaintiff so the jury can determine if the one time task of changing the brake shoes was responsible for the injury.
The defense counsel wants the jury to have a full picture of the plaintiff's history, Behrens said.
Another "set-off" issue currently being debated is whether information about plaintiffs who file claims with asbestos trusts established by bankrupt companies should be available to companies being sued in the tort system.
Behrens said plaintiffs' attorneys also "game" the system by delaying the filing of claim forms with bankruptcy trusts until after a civil lawsuit has gone to jury.
But companies being sued in court would like to know the limit of the exposure by the plaintiff to their product, he said.
"The (bankruptcy trust) claim form is one tool to get that evidence," Behrens said. "The plaintiff's counsel has evidence as to what products the plaintiff have been exposed. But the plaintiff's counsel does not want to share this information with the jury."
Behrens pointed out that plaintiff firms advertise how quick and easy it is to file asbestos claims, yet balk at sharing.
"The distribution procedures were set up by trial lawyers. They did not make difficult," Behrens said. "Yet this is what the plaintiff's attorneys say when requested to file the claim in advance of the trial."
Behrens said that two states have legislation pending that would provide a mechanism for asbestos trust claim forms to be filed before a case goes to trial. The jury would be able to make an informed decision about a defendant's liability if these bills become law, he said.
Ohio has a bill pending - H.B. 380, that passed out of the House in January. The bill was heard by the Ohio Senate Judiciary Committee on March 13. Behrens testified before the committee about the proposed legislation.
Oklahoma has a similar bill, which recently passed its Senate by a 28-10 vote.