Madison - St. Clair Record

Sunday, December 15, 2019

Stobbs to consider case law before ruling on motions to dismiss asbestos cases for want of prosecution

By Heather Isringhausen Gvillo | Aug 11, 2016

Asbestos 07

Madison County Associate Judge Stephen Stobbs must decide whether to dismiss dozens of asbestos cases that are not ready for trial scheduled in October -  some of which were originally filed by Associate Judge Donald Flack before he became judge.

Stobbs heard arguments on motions to dismiss for want of prosecution on Aug. 10.

Union Carbide recently filed the motions in 46 cases set on the court's Oct. 3 trial docket.

Before becoming judge in May 2012, Flack had filed 30 of the 46. The Napoli firm currently represents the claimants in all of them.

Union Carbide counsel Charles Anderson said 44 of the 46 cases have been resolved, leaving "Foster" and "Hinkle" claims. Union Carbide was dismissed from most of the cases it sought dismissal for want of prosecution. Other defendants remain as parties to the litigation.

At the hearing, Anderson said dismissal was proper because no depositions have been taken or scheduled and no fact witnesses have been provided in the cases which were primarily filed in the early part of 2012.

“I thought four years on these cases was enough to do something on the cases,” he said. “It’s time to dismiss.”

“It’s time to dispose of the case for everybody. We shouldn’t have to bear the expense,” he added.

Stobbs questioned if Napoli attorney Eric Jackstadt had a written response to the motions to dismiss. Jackstadt said he didn’t because he “objected to the ambush filing.”

Jackstadt added that the “defendants can cite no case” as an example where dismissal for want of prosecution is the appropriate resolution for this situation.

Anderson responded by saying that plaintiff's counsel wanted time to address the motions, but “he still doesn’t have an answer.”

Jackstadt argued at the hearing that dismissal for want of prosecution is an “unnatural, unprecedented short circuiting” approach to the issue of unprepared cases.

“It’s just a waste of time at this point,” he said.

Jackstadt added that the cases were set in January for trial in August, “which is impossible” to have ready in time.

He explained that the Napoli firm filed a “large amount” of cases in 2012 and 2013, “which created a bubble, but those cases are being worked through the system.”

Madison County saw a record-breaking year for asbestos case filings in 2013 with 1,678 total. The Napoli firm dominated the docket with 525-plus cases that year, most of which were lung cancer cases.

The Napoli firm filed just 18 cases in 2015, down from previous years. The lower case filings could be attributed to the firm’s breakup when New York-based Napoli Bern split last year.The firm has an office in Glen Carbon.

Anderson questioned if the cases at issue were set under the firm’s "cleanup" time after the breakup.

Jackstadt also argued that every one of the cases wee set for trial on Oct. 3 and questioned why they were arguing dismissal motions and several summary judgment motions on the pre-trial motion docket for Aug. 15.

Anderson wrote in his motion that, “Plaintiffs’ counsel has ignored multiple deadlines and requirements in the standing order, despite having four years to prosecute the case.”

“None of the above captioned cases are even remotely ready for trial on October 3," he wrote.

He wrote that plaintiffs had not tendered any product identification or exposure witnesses for deposition.

“In fact, plaintiffs’ counsel has not even disclosed a fact witness list in 42 of the above captioned cases,” he wrote.

He wrote that 26 plaintiffs had not answered standard asbestos interrogatories or standard asbestos requests for production.

He wrote that 24 plaintiffs had not disclosed case specific experts.

Bob Perica of Wood River entered appearances in all 30 of Flack’s suits, but withdrew in all of them on Feb. 21, 2014, at which time the Napoli Shkolnik firm entered appearances for all 30 plaintiffs.

Some of the plaintiffs are Illinoisans, but none are from Madison County. All claimants' illnesses are lung cancer-related.

Napoli hasn’t pursued the suits, however, and Union Carbide has moved to dismiss them for want of prosecution.

Ultimately, Stobbs determined that he had enough information on the matter and said he wanted to take a look at the case law regarding the arguments. He suggested that summary judgment may be a more appropriate way to resolve the issues.

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Organizations in this Story

Napoli Shkolnik PLLCUnion Carbide Corporation