2013 asbestos filings on pace with last year at 793 year to date

With nearly six months down and six to go, it appears that Madison County is on track to at least match last year’s record-breaking number of asbestos filings.

Figures provided by Circuit Clerk Mark Von Nida show that 793 asbestos suits had been filed as of earlier this week. If the next six months bring the same number of suits, the total for 2013 would beat last year’s total of 1,563 by about two dozen.

The number of asbestos filings in Madison County has been at a relatively steady rise since 2006, with the exception of a slight dip in 2010.

Records show that 325 asbestos suits were filed in 2006, a substantial decrease from the 953 asbestos filings in 2003.  That number jumped to 455 in 2007, 639 in 2008, 814 in 2009, 752 in 2010 and 953 in 2011.

Not only did 2012 mark a record-breaking year for asbestos filings in Madison County, but it also included a change to the docket and mirrored a national trend in asbestos litigation.

In March 2012, Associate Judge Clarence Harrison, who presides over the asbestos docket, eliminated the long-time practice of setting asbestos trial in advance.

Some defense attorneys expressed concerns that the change would open up the door to more filings, but Harrison, as well as other attorneys, said it was a procedural switch that would simply make scheduling dockets more consistent in size and help make things work more smoothly.

While the true effects of abolishing the advanced trial setting are difficult to gauge, last year’s asbestos filings did show that a few new players had entered the game as a result of some out-of-state firms setting up shop in Madison County and others consolidating or splitting up.

In addition, a breakdown of last year’s asbestos filings showed that Madison County mirrored a nationwide, emerging trend of an increase in the number of lung cancer-related asbestos suits as opposed to traditional mesothelioma claims.

Based on the first six months of 2013, a few area asbestos attorneys said it appears that trend will continue.

Brian Huelsmann, a defense attorney with HeplerBroom in Edwardsville, said his firm’s record of asbestos filings show 790 suits, three less than the figures provided by Von Nida.

Out of the 790 asbestos suits his firm has tracked so far this year, Huelsmann said that 461 were mesothelioma-related and 329 were lung cancer related.

“It’s consistent with what I saw last year,” he said. “It is a trend we anticipate is going to continue” based on the decreasing number of mesothelioma diagnoses.

Raymond Fournie, a defense attorney at Armstrong Teasdale in St. Louis, agreed. He said the spike in lung cancer asbestos suits began in 2012 and is a trend he anticipates “we will continue to see for some time into the future.”

Both Fournie and Huelsmann said while it may not be a trend yet, they have noticed at least a handful of asbestos suits being removed to federal court under the federal officer provision.

This provision allows defendants to remove suits if they can prove they acted under the direction of a federal officer, raise a colorable federal defense to the claims and show a causal nexus between the claims and acts performed.

Harrison said he didn’t have the specific breakdown of lung cancer v. mesothelioma asbestos suits or know exactly how many suits have been removed under the federal officer provision, but said he “people have pretty well adapted” to last year’s docket change.

“I’m more concerned this year with getting out the old cases that are pending,” he said. “You always want to go ahead and close out the older cases … for the courts, that’s the issue and we’ve been working on it.”

In regards to the federal officer removal provision, Fournie said the 7^th Circuit Court of Appeals in its 2012 ruling in Henry Ruppel v. CBS Corporation gave federal courts “clear direction” that this provision can allow for the removal of suits in certain situations.

While he has seen several more asbestos suits removed based on this provision, Fournie said he “doesn’t expect a whole ton of cases to be removed, but think there will definitely be more” than last year.

Fournie said “federal court is a good place to be” and that so far, the Ruppel ruling has simply given defense attorneys “one more jurisdiction to deal with.”

Huelsmann said the Ruppel decision marks “kind of a big change,” but that the full outcome is yet to be known as these cases continue to work their way through the federal court system.

In one of these cases, a federal judge earlier this month denied the plaintiffs’ motion to remand its asbestos suit back to state court after the defendant had removed it to federal court under the federal officer provision.

In this case – Walter and Ruby Leggett v. United Technologies Corp., U.S. District Judge Patrick Murphy denied the plaintiff’s remand request, saying he was “satisfied that defendant provided adequate support for federal officer removal.”

“It’s been another busy year,” Huelsmann said of the asbestos docket so far this year. “With six months more to go, we are on pace with last year.”