The Illinois Supreme Court, acting in response to a request from lawyers who claim they and others have been targeted by a “rogue” Cook County judge, has stepped in to slap a hold on potential sanctions proceedings against lawyers and litigants on both sides of an asbestos personal injury case, blocking the judge, for now, from continuing his bench investigation of what he said resembled an improper “grand bargain” between plaintiffs’ lawyers and those for defendant gasket maker John Crane Inc.
On July 19, Illinois Supreme Court Justice Mary Jane Theis imposed an emergency stay on proceedings in the case docketed in Cook County Circuit Court as Roxanne Richards, e. al., v. Dana Companies LLC, et al. According to the short order, the stay would remain “pending disposition of motion for a supervisory order.”
The order came the same day attorney Nicholas Vogelzang, formerly of the Chicago law firm of Connelly & Vogelzang, asked the state high court to exercise supervisory authority and remove Cook County Judge Daniel Lynch from presiding in the Richards case, alleging Lynch had engaged in “a gross abuse of his judicial authority that has been indiscriminately wielded against all parties, their lawyers and their respective law firms who are now ensnared in a judicially-driven quest to impose a draconian and unprecedented series of sanctions.”
The Richards case first landed before Judge Lynch in 2014, when the family of Bertha Winford, who has since died, filed suit in Cook County court against an array of defendant companies, alleging Winford had contracted a form of lung cancer known as mesothelioma from working around products containing asbestos.
The common accusation, which lies at the core of many thousands of similar asbestos exposure cases filed regularly in various jurisdictions, but in Illinois, primarily in Cook County and Madison County, was leveled by Winford’s family against many of the same defendants as in many of those other asbestos cases, including such companies as Ford, Dana Companies, Honeywell, Georgia Pacific and Chicago-based John Crane (JCI).
The Winford family, which included Winford’s daughter, Roxanne Richards, was represented in the lawsuit by the Connelly & Vogelzang firm.
The case went to trial in 2015, but was eventually dismissed as part of a confidential settlement approved by Lynch.
Before the settlement was finalized, in November 2015, attorneys for Ford and others filed motions, asking the court to order sanctions against their co-defendants JCI, attorneys with the firm of O’Connell, Tivin, Miller & Burns, who had represented JCI, and Connelly & Vogelzang.
In those filings, Ford and others alleged “gamesmanship” on the part of JCI’s attorneys and those for plaintiffs, alleging the C&V lawyers installed Crane as a “straw man Illinois defendant” to prevent the case from being removed to federal court and needlessly lengthening the proceedings.
They said OTMB used various tactics during the proceedings as part of a long-running cooperation between them and the Vogelzang lawyers to prevent the case from being dismissed, with an eye toward ultimately allowing Crane to avoid paying damages.
JCI denied the allegations, and said the sanctions request was “unprecedented.”
Ford and the others would later withdraw their petition for sanctions, but in March 2016, Lynch then acted “sua sponte” – meaning without a request from either party – to retain jurisdiction of the case and essentially launch his own investigation of the claims, over the objections of attorneys for JCI, the Vogelzang firm and other litigants.
The case went essentially silent for nearly a year, until July 17, when Judge Lynch purportedly stunned litigants with a 270-page filing he called a “ruling as preliminary findings on sanctions.”
In that filing, the judge claimed he had authority under five Illinois Supreme Court rules and “the court’s inherent power” to conduct the inquiry independent of any motion by any party, and to impose sanctions against a number of litigants and attorneys involved in the case. In the filing, the judge threatened to expand the list of sanctionable parties to include not only JCI and the OTMB and Vogelzang firms, but also the lawyers representing Dana Companies, Ford Motor, Genuine Parts Company, Honeywell International and Pneumo-Abex LLC.
The judge also said he intended to make Richards herself a “fiduciary of the court,” as a representative of the Winford estate.
Lynch said he was moving in response to what he called a “pattern” of behavior involving counsel for both the plaintiffs and JCI in the Richards case, and others, in which the Vogelzang firm would name JCI as a defendant in asbestos exposure cases, but would never “pursue” them in court in any significant way to obtain either a settlement or damages award at trial.
In the Richards case, for instance, the judge noted the Vogelzang firm had proceeded to trial with JCI still listed as a defendant, yet admitted they intended to not push a connection between Winford’s mesothelioma and exposure to JCI products at any of the places she had worked. Rather, the judge noted, the plaintiffs intended to primarily pursue other defendants who made "brake products" containing asbestos, by which Winford was allegedly exposed to the carcinogen. That admission prompted the judge to initially order JCI dismissed from the litigation shortly after the trial had commenced in 2015.
The judge, however, said such a pattern had occurred in more than 50 such asbestos cases – all of the asbestos liability cases the Vogelzang firm had filed since 2009. In his filing, the judge returned repeatedly to the Vogelzang’s firm futile litigation record against JCI, and the lack of any protest from JCI over being repeatedly sued to no effect.
“At this point the testimony is not convincing,” Lynch wrote. “Left unexplained, naming, not pursuing, remaining, and eventual dismissal appears to be the similar pattern between C&V and JCI …
“JCI’s repeated joinders followed by repeated dismissals without a whisper of abuse of process, are consistent with a grander scheme. At this time, it is the only logical and full explanation evident for that which makes no litigation sense and no sense otherwise.”
In his filing, the judge proposed a number of sanctions against several parties, including: threatening to force the parties to reveal the Richards settlement; threatening to vacate the settlement and entering a default judgment against JCI in the Winford case, compelling JCI to stand trial for damages; ordering JCI to “draft and implement a Cook County asbestos litigation policy … which ensures its regular, consistent and active monitoring of its Cook County asbestos litigation cases,” including semiannual appearances before the presiding judge of the Cook County Circuit Court Law Division to ensure compliance, until 2020; compelling OTMB to pay the Winford family’s costs to pursue JCI; compelling the Vogelzang firm to pay the Winford family 30 percent of its fees from the case; and ordering the other co-defendants named as additional respondents to the case to pay 20 percent of their attorney fees from the case.
The judge proposed any sanctions assessed by the court in a possible final order would “be applied to court funding or programs.”
In response to the judge’s “preliminary ruling,” Vogelzang, through his attorneys with the firms of Goldberg, Weisman & Cairo, and Taft, Stettinius & Hollister LLP, filed for an emergency stay, and asked the Illinois Supreme Court to take charge and remove Lynch from the case.
In his filing, Vogelzang alleged Lynch’s proceedings in the case had “devolved into a formless inquisition with no distinguishable end.”
Vogelzang asserted the state high court must bar Lynch from continuing in the case to stop a “dangerous and unprecedented abuse of his judicial office” producing “an endless treadmill of hearings in which (Lynch) became investigator, advocate and jurist in the same proceeding in which he made it clear that any effort to dislodge his fixed notions of how the case should end is a futile gesture that offends sensibilities of the court.”
In the filing, Vogelzang further asserted Lynch, whose suspicion had been aroused, moved to “coach” and “goad” attorneys for other defendants in the Richards case to turn on JCI and move for sanctions.
“Before any evidence was taken, (Lynch) had been the only person in the courtroom to make the allegations that served as the catalyst for the rapid-fire sanctions motion practice to follow,” Vogelzang wrote.
In his filing, Vogelzang further argued Judge Lynch’s proposed sanctions against all sides would “achieve the goal of further embroiling the parties and their attorneys in protracted litigation which pits them against each other by senselessly creating conflict positions as part of a sanctions ‘remedy.”
“Lost in Respondent Judge's cynical calculation are the rights of a family whose loved one died in a case that was settled 18 months ago by the Respondent Judge,” Vogelzang’s attorneys wrote in their motion to the state Supreme Court. “Astonishingly, the July 10, 2017 order contemplates ‘considering’ an order whereby the family of Bertha Winford will be forced back into court at their expense to prosecute a damages claim that was already dismissed by Respondent Judge in a settlement conference brokered by the Respondent Judge.”
And the Vogelzang filing further urged the Illinois Supreme Court to intervene to protect the integrity and reputation of other judges in Cook and Madison counties, and elsewhere, who Vogelzang’s attorneys argued also had been smeared by Lynch’s accusations as “unwitting” participants in the alleged scheme.
“… The barbs that come from the Respondent Judge (Lynch) with such ease do not appear to be limited to litigants and lawyers and the innuendo that flows from the ‘intra-judicial’ fraud mosaic he has created unfairly maligns others judges by suggesting their tacit approbation of misconduct on their watch,” the filing said. “This fundamental falsity of this premise must be corrected.”