Defense attorneys want more changes to asbestos docket; Harrison says it's a 'work in progress'

By Bethany Krajelis | Jul 26, 2012





When attorneys for more than three dozen asbestos defendant companies asked Madison County Associate Clarence Harris to eliminate the advanced setting of asbestos trial weeks earlier this year, they included a few other recommendations in their request.

In their opposition to the since-overturned order setting the 2013 asbestos docket, these defense attorneys suggested limiting the number of asbestos trials next year to 250 and the number of cases per docket to 10.

They also recommended a 12-month preparation period between the setting of a trial and the approval of a plaintiff's motion to set a case for trial and pushed for these settings to be based on the oldest case filed with priority to Illinois plaintiffs, as well as a scheduling order that would provide "a meaningful opportunity" to make non conveniens forum challenges.

And now, about four months after Harrison put an end to the advanced trial setting practice, some of the attorneys for these asbestos defendant companies said they are more than pleased with Harrison's decision, but would like him to take another look at some of their other suggestions.

"I think with respect to all of the defendants that signed on to these proposals, we are all in agreement that the other aspects of the request are critical to managing the overall docket," said Lisa LaConte, a partner at Heyl, Royster, Voelker & Allen in Edwardsville.

"We would really like to see those additional issues considered."

LaConte and her colleague, Kent Plotner, are two of a handful of attorneys who threw their support behind the proposed trial calendar included in the previously filed motion opposing former asbestos Judge Barbara Crowder's preliminary order that set the 2013 asbestos docket.

Besides LaConte's firm, attorneys at Armstrong Teasdale; Schlafly & Davis, Foley & Mansfield; and Segal, McCambridge, Singer & Mahoney signed on to the motion on behalf of dozens of asbestos defendant companies.

These attorneys argued that the court's trial reservation system was no longer being used for its original purpose of resolving local asbestos suits. In response to defense arguments made over forum at a March hearing that was held on the matter, plaintiffs' attorneys told Harrison that the trial reservation system was working fine.

Elizabeth Heller, an attorney at Goldenberg Heller Antognoli & Rowland, said at the March hearing that, "The sky is not falling.
Cases without merit are getting dismissed or sent elsewhere."

Heller, as well as a few other plaintiffs' attorneys, did not immediately return messages seeking comment.

LaConte said some of the other aspects of the defendant's motion, such as proposals to limit the number of trials per year and to better address forum issues, could help "make sure Madison County isn't such a magnet for out-of-state cases to be filed here."

The defense motion that laid out the recommendations earlier this year stated that, "Without reform, Madison County will unfortunately continue as the destination for asbestos cases rising from coast to coast."

In addition to the since-approved request to abolish the advanced setting of asbestos trial weeks, the defense motion contended that its proposed trial calendar could "help restore order and fairness to Madison County asbestos litigation."

"Limiting the number of cases on a given trial calendar for the year would obviously alleviate some of the problems," Plotner of Heyl, Royster said. "But we also need to continue to look at these cases from a perspective of whether there is an Illinois connection and a Madison County connection."

In regards to forum and venue issues, Plotner said that based on his observation, it appears more of these motions have been presented to the court in the past two months.

He attributes that to Harrison's order this past spring, which along with eliminating the advanced trial setting practice, noted that he would consider forum and venue issues on a case-by-case basis when requested.

Harrison agreed with Plotner's observation. He said he's heard arguments in at least half of dozens motions over forum in the past 30 days.

"It happens on a case-by-case basis," Harrison said. "It's something that needs to be addressed by a motion. It's not something I can do in an order that addresses all of the cases."

Raymond Fournie, an attorney at Armstrong Teasdale in St. Louis who signed the previously filed motion, said Thursday that he believes many of the proposals included in the defense motion, such as limiting the number of trials per year, could be resolved "if we were able to effectively address the forum issue."

"The number of cases filed would probably take care of itself if the cases that don't belong in Illinois weren't filed here," he said.
Fournie, however, acknowledged the difficulty in addressing the issue.

Coming up with an effective and constitutional solution to forum challenges, he said, is "a very difficult thing for the court and even the parties to do" since they are made on a case-by-case basis
Nevertheless, Fournie said it's important and contends that "a lot of the other things would fall by the waste side if the forum issue could be addressed."

Saying that issues over venue and forum have long been discussed in Madison County given its reputation as a go-to destination for asbestos lawsuits, Plotner said there is a case currently before the Illinois Supreme Court that "could give us more insight as to where we are going to go with this issue."

The case Plotner is referring to is Walter Fennell v. Illinois Central Railroad Co., which came to the state high court on appeal following a split decision from Fifth District Appellate Court. The Supreme Court agreed to hear the case, which originated in St. Clair County, but has not yet set a date for oral arguments.

"If a mandate comes from the Supreme Court, then perhaps, that will give some more teeth to the proposals we've made," Plotner said.

Both Plotner and Fournie said they would also like to see a 12-month period between when a case is set for trial and the approval of a plaintiff's motion for a case to be set for trial. Right now, Plotner said, this time frame generally falls between six to nine months.

Providing a 12-month period, Plotner said, would allow defense attorneys more time to prepare. Fournie acknowledged that certain circumstances wouldn't always make their proposed time frame possible.

In regards to the defense motion's proposal dealing with the 12-month period and limiting the number of asbestos trials per year to 250, Harrison said he believes he has addressed the issues in "the practical way trials take place rather than the numerical way."

"The effort I have been trying to make since the order is to limit the number of firms that are set on any given trial week," he said. "The goal is to have no more than two firms on any given trial week. That way the defendants only have one or two plaintiffs' law firms to deal with in their preparation."

Like many of the attorneys who handle Madison County asbestos litigation, Harrison said it's still too early to see how his order will play out. He said "the system is not perfect" and that "we're constantly looking at things" in an effort to make the process more efficient.

For instance, Harrison said that he's been working to implement a program to address the amount of paperwork getting filed in the cases he hears. He said several attorneys brought the idea to him.

"We want to reduce some of the paperwork so attorneys don't have to duplicate documents and file 200 pages when they really need to just file three," Harrison said. "There is stuff we are working on all the time. I consider all of the dockets a work in progress."

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Armstrong Teasdale Heyl Royster Illinois Supreme Court

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