Updated with link and opening comments in bold
Click here to read James Stengel’s great paper, described below: Litigating in the Field of Dreams: Asbestos Cases in Madison County, Illinois.
Jim’s paper is a " must read" for any lawyer or expert interested in the actual working of the mass tort system. The paper is especially valuable for highlighting the pervasive power of one outlier jurisdiction when its judges choose to operate outside existing legal rules. For a strikingly similar example of the problem of extreme outlier jurisdictions and judges who went out of control, consider the awful results which have flowed from the Delaware bankruptcy courts creating their own field of dreams for Wall Street and Delaware businesses and lawyers. For the short story, see this prior post, but the much better course is to invest the time to read Professor Lynn LoPucki’s 2005 book: Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts.
Now that I’ve seen the full paper, I want to note that Jim’s full article explicitly notes that the reality of Madison County going out of control was aided and abetted by "short-sighted" thinking on the defense side. That’s a subject I covered below when I’d not yet seen the entire paper, and so could write only as to press excerpts.
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Madison County courts are back in the news in litigation industry media as the national forum of choice for processing mesothelioma cancer claims. The numbers make it plain that Madison County is indeed the national claims processing venue of choice for mesothelioma claims.
Why is Madison County so popular ? The first answer is: trial dates. 400 or 500 hundred every year. Enough trial dates to resolve 1/6 to 1/4 of the national number of mesothelioma claims brought each year.
A second answer as to why Madison County is so busy is that many defendants and insurers fail to actively oust claims that have absolutely no basis for venue in Illinois, much less Madison County. The implicit message ? The defendants and/or their insurers are, apparently, at least roughly satisfied with Madison County as a nation forum for processing mesothelioma claims.
The numbers ? According to this article quoting Madison County’s Chief Judge, Ann Callis, the numbers are as follows. Note especially the abundance of 520 trial dates. Trial dates are the key factor in causing cases to resolve.
"Last year there were 814 asbestos cases filed in Madison County. In 2008, there were 639; in 2007 there were 455 and in 2006 there were 325. In 2003, cases peaked at 953.
The number of asbestos trial slots have also have been increasing. In 2009, there were 424 trial slots scheduled; in 2010, 490; and in 2011, there are 520 scheduled.
Callis said that as of Oct. 27, there have been 650 asbestos cases filed year to date in Madison County.
"This number is a significant trend downward from last year," she said.
Callis pointed out that there are approximately 100,000 cases filed in Madison County per year. A defense view of these numbers? One view was presented at a US Chamber of Commerce gathering. The view was articulated by an excellent and experienced corporate-side trial lawyer, Jim Stengel of Orrick. His paper is titled: "Litigating in the Field of Dreams: Asbestos Cases in Madison County, Ill." Jim’s presentation was covered here by media indirectly owned in part by the Chamber of Commerce. Some key quotes are as follows:
"They [the numbers] speak volumes as to how tort litigation is conducted these days," Stengel said.
At the beginning of the century, a series of jury awards helped Madison County become a favorite target for plaintiffs lawyers, Stengel said. In 2000, a single plaintiff was awarded $34.1 million, and a husband and wife were awarded $16 million in 2001.
Two years later, a single plaintiff who alleged he was exposed to asbestos while working in Indiana was awarded $250 million, including $200 million in punitives.
"Judges in Madison County are elected, and the plaintiffs’ trial bar was a reliable source of contributions for favored trial judges," Stengel wrote.
"There was obvious economic interest on the part of the plaintiffs bar which would derive a substantial benefit from locating this litigation in Madison County."
Even defense attorneys benefited from the increased amount of lawsuits, which provided a steady stream of work, Stengel says.
The Madison County Circuit Court adopted procedures to process asbestos claims faster than other jurisdictions, and the court presides over one-sixth of the mesothelioma deaths in America.
Stengel says the number of lawsuits being filed is increasing after a dip in the middle of the decade. There were 424 trial slots scheduled for 2009, 490 scheduled in 2010 and 520 scheduled for next year.
Out-of-state law firms can collect clients, then pass them on to local counsel and earn a referral fee or participate in a fee-splitting agreement, Stengel said. He called it a "hybrid structure as to who harvests these claims."
"After a false dawn in the mid-2000s, the county has continued along the path of a magnet or clearinghouse jurisdiction, adopting and maintaining procedural, and in some cases substantive, rules which attract large numbers of cases to the jurisdiction to the benefit of select local plaintiffs counsel and to the detriment of fairness and the due process right of defendants forced to litigate there," Stengel wrote.
Mr. Stengel’s comments are right on the money in terms of the modern litigation industry practices regarding how claims are harvested and how fees are shared between plaintiff’s firms. The quotes, however, miss my point. That point is that some insurers and defendants are complicit in allowing Madison County to take on the role it holds today. Why are they complicit ? They failed to push back fast enough or effectively enough when Madison County started attracting many mesothelioma claims.
Why did insurers and defendants fail to push back quickly or effectively? Three big causes are lack of a big picture view, lack of a long term view, and wishful thinking (" we are only a peripheral defendant – someone else will take care of that problem"). Other causes include laziness and aversion to creative thinking and risk taking. Defendants and insurers also were driven by short term budget constraints, and fears that "rocking the boat" would cause of short term reprisals from plaintiff’s firms, which can and have targeted particular defendants when they caused too many waves. (The answer for defendants of course was to be ready for being targeted, to stay the course, and to win, but all of that takes ample amounts of money, creativity, and courage). All of the factors are still at work today as new generations of asbestos defendants and insurers move into becoming players.
The overall result ? There was enough time and money to create and use the the field of dreams.
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