Trial date tango. It’s a dance unique to litigation. It’s also a unique dance because it takes at least three to dance – a judge, a plaintiff’s firm and a defense firm. For asbestos cases, there’s a mosh pit of dancers because so many defendants are named in most cases. And at least one defendant (John Crane) dances so often that most say it’s dirty dancing, but that’s a story for another day.
For plaintiff’s lawyers, the trial date dance is about certainty and market power – they want pretty much all the dances they can obtain, and sooner is usually (but not always) better than later. For defendants, less is usually more, but some trial dates are inevitable, so it’s about balancing. Trial dates stop defense expenses, and for the vast majority of insurance companies, it’s only about the total spend.
Trial date tango is an important annual ritual in the Circuit Court of Madison County. It’s important because the Madison County court is the venue for over 1/3 of all mesothelioma cases filed each year in the entire US. If one assumes that’s about 600 cases per year at $ 1.5 million each to settle, then the Madison County litigation industry is an over $1 billion operation located in Edwardsville, Illinois, a town of about 25,000 people. The industry value also may well be higher, depending on what one assumes about average settlement values.
Why is Madison County so busy? That’s a story that dates back for decades, and is too much for this post. But, one of the keys today is the certainty produced by the predictable outcome of the annual trial date tango. Even though cases should settle earlier, they usually don’t, for many reasons, and so trial dates are the catalysts to resolving cases. Madison County’s "asbestos judges" understand that reality. Each year they slot hundreds of trial dates, and allocate the trial dates between the plaintiff’s firms. With dozens of trial dates in hand, the Madison County plaintiff’s firms then use the trial dates as part of their pitch to obtain cases from other plaintiff’s firms around the country. For the most part, the residence of the plaintiff simply does not matter in Madison County (although that could change one of these days.)
Madison County’s annual trial date ritual was performed this week as about sixty lawyers showed up to talk with Judge Crowder about trial dates for 2013 (2012 is already set with 28 trial weeks with 19 cases per trial setting). The Madison County Record has the story here by Steve Korris and Christina Stueve, told mainly from the defense perspective that is inherent because the Record is owned by the US Chamber of Commerce. That said, it’s great that the public domain includes more information rather than less.
Note a few things about this year’s dance. The big dogs in the plaintiff’s bar sat quietly. Some new plaintiff’s firms asked to join the dance. Some plaintiff’s firms want to bring new dates – 40 or so lung cancer cases, on top of mesothelioma cases. Only a few defendants had anything to say, and only one was willing to buck conventional wisdom, thus illustrating once again the power of the herd mentality in mass tort litigation. Some defendants opposed giving trial dates to new plaintiff’s firms. Now all wait to hear from Judge Crowder about the dance card specifics, but the dance inevitably will go on, in a big way.
Some key quotes from the article are set out below:
"EDWARDSVILLE – In America’s asbestos court, where procedure and reality seem to run in opposite directions, lawyers debated politely for 45 minutes on Wednesday about how many hundred trials to schedule for the year after next.
No one at the hearing before Circuit Judge Barbara Crowder expected more than a trial or two to actually occur in 2013, but only one lawyer proposed not to pretend.
Union Carbide lawyer Kent Plotner, of Heyl Royster, told Crowder she should set cases for trial as needed without pre-slotting.
He said Crowder could determine where to slot them when they come in.
"When a case comes in and the merits of the case stand alone, your honor can set that case," Plotner said.
He said it didn’t make sense to have slots for cases that don’t exist.
In 2010, there were 752 asbestos cases filed in Madison County. This year’s figures are on pace to exceed last year’s total.
Defendants have argued that Madison County’s advance calendar setting encourages plaintiff lawyers to go out and market the asbestos docket.
And they claim that during any given trial week (there are 28 this year) – where 19 individual cases are set for trial – defendants don’t know on Monday morning of that trial week which plaintiff among 19 will go to trial.
After Plotner spoke, no defense lawyer seconded his motion.
Crowder took under advisement a proposal from plaintiffs to set 27 trial weeks with 19 trials a week, a total of 513 for the year 2013.
The firm that files the most Madison County asbestos cases, Simmons of Alton, has requested 10 trial dockets for 2013. In 2011 and 2012, the firm was assigned nine settings.
And the second most prodigious asbestos firm, Gori and Julian of Edwardsville, has requested seven trial dockets for 2013, up from six the firm was assigned in 2011 and 2012.
*** Crowder is full time asbestos
Chief Judge Ann Callis appointed Crowder as Madison County’s first full time asbestos judge last year, transferring all her pending cases to other judges.
Crowder succeeded retired Circuit Judge Daniel Stack, who managed the asbestos docket for five years while presiding over other civil suits.
While Crowder said she does not know how many cases she currently presides over, the ones that are moving are ones with more serious claims.
"The only cases on this docket are people with a terminal diagnosis," she said. "They’re dying or already dead."
At the hearing
For Crowder’s hearing on the 2013 trial calendar, about 60 lawyers showed up.
After Plotner pitched his plan, defense lawyer Brenda Baum of Hepler Broom said the plaintiff proposal sets up many conflicts among plaintiff firms.
She said five firms asked for slots on June 17, 2013, for instance. And, two to four firms asked for slots on other days, she said.
The total shouldn’t exceed 475 slots, with no more than two firms on any date, she said.
Baum proposed a minimum number of filings for a firm to qualify for the docket.
Defense attorney Ray Fournie, of Armstrong Teasdale, said multiple firms on one docket made it hard to anticipate the time and effort of preparation.
He said that with one firm, defendants can negotiate properly.
He said the number of firms with standing on Madison County’s docket went from eight to 10 since last year.
He said there was a potential increase in the number of firms with no connection to Madison County. He also said Crowder can’t prevent outside firms from filing.
He said he recognized the predicament their constitutional right creates.
Most plaintiff lawyers in the room kept quiet.
No one from the Simmons or Gori firms spoke.
Five commented briefly, one so softly that people 10 feet away couldn’t hear.
Only Elzabeth Heller, of Mark Goldenberg’s firm in Edwardsville, scored points on the plaintiff side.
She said defendants changed their theme from, "If you build it they will come," to, "Madison County, the last open jurisdiction."
"The sky is not falling," she said. "The system is working."
She said cases without merit are being dismissed or transferred.
She said the Goldenberg firm filed 86 cases this year, 59 of them mesothelioma cases. Her firm will file in excess of 100 before the end of the year, she said.
"We represent more than 3,000 Madison County residents with non-malignant cases on the deferred docket," Heller said.
She said they track those cases to see if clients develop lung cancer.
"We have a backlog of 40 ready to be set," she said.
Crowder said she would get an order out quickly.
After the hearing, Fournie said a trial docket with 513 slots was a challenge for the court and more so for defendants.
"We are here all the time," he said.
"Trying to juggle that without a huge financial drain on our clients is tricky," he said.
He said he represents General Electric, Hercules, Chicago Bridge and Iron, and others.
He said a central forum simplifies litigation because, "A lot of people worked at a lot of different places."
He said he didn’t know how many asbestos suits he currently defends.
"If there are 500 slots, one of my clients is going to be in 490 of them," Fournie said."