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COMBUSTIBLE CLAIMS
Trial Lawyers, Inc. burns through
the courts with asbestos litigation.
Randy Randy Bono
In October 2004, Madison County judge Daniel Stack handed down
an unusual ruling in the case of one Paul Palmer, Sr., a Louisiana resident
who was suing 87 different companies for causing his mesothelioma, a fatal cancer
that usually results in multimillion-dollar awards in asbestos lawsuits.[112]
Stunning Palmer’s lawyers, Judge Stack, in his first case since being placed
in charge of the county’s asbestos docket, granted the defendant’s
request for a change of venue—a decision almost never seen in asbestos
cases in Madison County. In a terse reproof, Stack served notice that, since
Palmer had lived and worked in Louisiana all his life, and since he resided
15 minutes from the Baton Rouge courthouse but 700 miles from Madison County,
he had better take his complaint elsewhere. Later that day, Judge Stack dismissed
two more asbestos suits filed by out-of-state plaintiffs.[113]
 Stack’s venue decisions sent tremors through the U.S. tort
bar, which for years had relied on Madison County courts to help it bully billions
of dollars out of corporations in asbestos cases. Indeed, in the past ten years,
trial lawyers have filed an astounding 5,150 asbestos cases in Madison County,
as many as 75 percent of them filed by plaintiffs who had never before set foot
in the county.[114] In 2003 alone, lawyers brought 953
suits there, more than double the number brought a year earlier, including one-fourth
of all mesothelioma litigation in the country.[115]
Judge Stack’s no-nonsense take on forum shopping ended
years of kowtowing to the asbestos bar—most notably by his immediate predecessor,
Judge Nicholas Byron. Byron once explained his refusal to grant a venue change
in a case that had no connection to Madison County by saying that he was “concerned
not only with the citizens of Illinois” but for “all Americans.”[116]
Until Judge Stack’s recent stands, jurists regularly denied defendants’
requests for venue changes and rejected their motions for summary judgment,
even when plaintiffs’ attorneys neglected to file the required written
responses.[117]
In 2003, mesothelioma suits in
Madison County accounted
for almost one-fourth of all such
litigation in the country.
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Madison County’s Asbestos Kingpin
No lawyer profited from Madison County’s historical disregard
for the law as handsomely as Randy Bono, who has amassed an estimated $400 million
in asbestos-case fees.[118] Bono single-handedly built
the Madison County asbestos bar when he filed an estimated 1,500 cases in 1986;
the year before, there had been only one case filed.[119]
After a stint as a Madison County trial judge from 1995 to 2000,
Bono returned to practicing law, teaming up with aggressive young gun John Simmons
to form a firm that quickly became an asbestos juggernaut. Just how dominant
are these attorneys? In 2003, 457 mesothelioma lawsuits were filed in Madison
County, an incredible one-quarter of the entire U.S. total. Bono and Simmons’s
firm was responsible for 375 of them.[120] Bono’s
homespun style belies his status as a top legal shark; he regularly shows up
for court in hiking boots and wrinkled khakis, hamming it up for the spectators.[121]
He does much of his real work, however, in backroom deals outside court, where
he puts the screws to defense lawyers, deciding “who pays and which defendants
get let off the hook.”[122]
That defense lawyers would capitulate to Bono makes sense when
you look at the awards he has consistently won in trials before plaintiff-friendly
judges and hometown juries. Take Whittington v. U.S.
Steel, a 2003 case that produced a whopping $250 million verdict, the largest-ever
for a single asbestos plaintiff.[123] Judge Byron denied
the defendant’s request for a venue change, even though the late plaintiff,
Roby Whittington, was an Indiana resident who was exposed toasbestos at an Indiana
steel mill.[124] In order to get venue in Madison County,
the plaintiffs added a local defendant company, John Crane Inc., but made no
allegations against it.[125] Defense attorneys accused
John Crane’s lawyers of making a “sweetheart deal” to stay out
of Bono’s crosshairs: John Crane’s attorneys actively opposed U.S.
Steel’s request for a venue change, challenged jurors who appeared to favor
the defense, and were observed privately conferring with plaintiffs’ counsel.[126]
Needless to say, John Crane got away without paying a cent.[127]
Procedural Rules Rig the Game
A crucial component in Bono’s success in asbestos litigation
has been Madison County’s “rocket docket,” which has historically
taken cases from discovery to trial in a matter of months, with multiple cases
scheduled for the same day.[128] Such time frames impose
a heavy burden on defense attorneys who may be working on hundreds of cases
around the country, notwithstanding Bono’s blithe assertion that “six
months is oodles of time for a defense attorney to prepare for trial.”[138]
Academic studies have shown that consolidated case schedules and similar procedural
gimmicks inevitably lead to higher average verdicts in asbestos cases[139]—a
problem compounded in courtrooms like Madison County’s, where plaintiffs’
attorneys always seem to know which case is scheduled for trial on a given day,
while defense attorneys are left to guess about which case to prepare. Trial
Lawyers, Inc. is thus playing the asbestos game with a stacked deck: the attorneys
attack scores of defendants with thousands of claims, and each defendant must
rapidly prepare cases it knows it may not win, whether it caused each plaintiff
’s alleged ailment or not.
FABRICATED FILINGS
There’s a dirty secret in asbestos litigation:
80 to 90 percent of all asbestos claimants aren’t injured.[129]
The sheer volume of claims, which peaked at some 110,000 nationwide
in 2003, has made it difficult for judges to give each case the scrutiny
it deserves, so even jurisdictions more conscientious than Judge Byron’s
Madison County have been forced to consolidate mass claims and push
defendants to settle.[130]
 How did Trial Lawyers, Inc. manage to choke the courts
with so many claims? Simple: it hired unscrupulous physicians to mass-produce
phony diagnoses. One such doctor has diagnosed more than 88,000 patients
with asbestos-related conditions since the early 1990s, doing as many
as 150 screenings a day.[131] That’s one
diagnosis every four minutes for ten straight hours. Needless to say,
a remarkably high percentage of patients so screened wound up as plaintiffs
in asbestos cases.
In a telling 2004 study, Johns Hopkins radiologists
took a sample of X-rays in which Trial Lawyers, Inc.’s handpicked
examiners had identified lung abnormalities in 95.9 percent of 492
cases. The Hopkins researchers hired independent readers to examine
the same X-rays without knowing their origins; these readers found
abnormalities in only 4.5 percent of the same cases.[132]
Last year, after decades of abuse, Trial Lawyers,
Inc.’s asbestos division finally found a judge who wouldn’t
look the other way. When U.S. District Judge Janis Graham Jack—a
Clinton appointee and former nurse—began looking at asbestosis
and silicosis filings in her Texas court, she found massive fraud,
including a majority of plaintiffs who had claimed to suffer both
silicosis and asbestosis, a
very rare medical phenomenon.[133] While Judge
Jack’s investigations have led to dramatically fewer asbestos
filings nationwide, the drop-off has been slower in Madison County—and
Cook County’s filings are on the rise.[134]
The trial bar’s fraudulent asbestos machine particularly
hurts those who have genuinely been harmed by asbestos exposure, including
the 4,000 mesothelioma cases diagnosed each year.[135]
As lawyers shamelessly combine these valid cases with bogus claims,
the truly injured get inadequate settlements to cover their medical
bills, while the uninjured get money they don’t deserve—and
their lawyers get a huge windfall.[136] Trial
lawyers’ abusive tactics long ago bankrupted the companies most
closely linked to asbestos manufacture—but this particular business
line has been so lucrative historically that they have been loath
to give it up: the 8,000 corporations they now target have tenuous
links at best to plaintiffs’ purported asbestos exposure.[137]
It’s fitting, in a perverse way: businesses whose products never
caused mesothelioma are compensating people who don’t actually
have it.
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Moreover, Illinois law heavily favors asbestos plaintiffs, especially
the state’s unique and prejudicial Lipke rule, which prevents a
defendant from introducing evidence that other companies might be responsible
for a claimant’s illness and thus keeps jurors from being aware of major
holes in Trial Lawyers, Inc.’s stories of causation.[140]
This rule spelled certain defeat for Union Carbide in 2003 when one plaintiff—a
cigarette-smoking housepainter who had worked with many other asbestos-containing
products—alleged that his mesothelioma was caused by an interior-finishing
product containing Union
Carbide asbestos. Union Carbide settled the case out of court for $4 million.[141]
Today, with so many big companies bankrupted by asbestos payouts, Lipke
works as a bludgeon against thousands of small contractors, engineers, and maintenance
companies who are being swept into litigation despite tangential connections
to asbestos.
Two Steps Forward, One Step Back
When Judge Stack took over Madison County’s asbestos cases
in 2004, he not only cracked down on forum shopping; he also established a new
deferred docket for asbestos plaintiffs who weren’t actually sick. Filings
promptly declined by over 50 percent, as trial lawyers shopped for more welcoming
venues, including upstate Cook County and even faraway Delaware.[142]
Although these trends seem to be continuing, the local tort bar is working hard
to replace its foreclosed out-of-state opportunities. Last September, tort lawyers
from St. Louis filed 153 asbestosis and silicosis lawsuits in Madison County,
naming a total of 136 defendants, on behalf of former Illinois state workers
who had allegedly been exposed to asbestos in their workplaces.[143]
 Despite its recent improvements, Madison County still ranks
as the nation’s most litigious venue for asbestos claims, with 389 asbestos
case filings last year.[144] Moreover, viewed in the context
of nationwide trends, Madison County’s improvement is unremarkable. Its
59 percent drop in asbestos filings since 2003 compares with an 82 percent nationwide
drop over the same time period in claims filed against the former Johns-Manville
Corporation, which manages one of the largest and longest-running asbestos-settlement
trusts.[145]
And Madison County’s new efforts to curb forum shopping
have unfortunately failed to fix the asbestos-litigation problem for Illinois
as a whole. Many of the displaced claims have simply found their way into alternative
Illinois courtrooms—particularly in Cook County, where asbestos filings
grew 40 percent in 2004.[146] Illinois needs to adopt reforms
at a statewide level—to keep out-of-state claimants from filing suits,
to prevent judges from consolidating claims and denying defendants due process
with “rocket dockets,” and to allow jurors to hear defendants’
evidence on causation. Otherwise, Trial Lawyers, Inc. will keep filing suits
in the state’s most permissive counties—and driving out Illinois jobs
in the process.
<<previous section | next section>>
112. See Nicholas, supra note 45.
113. See id.
114. See id.; Paul Hampel, Huge Jury Awards Provide Incentive to Settle
Cases, St.Louis Post-Dispatch, Sept. 18, 2004, at A10.
115. See William Tucker, Lawsuit Lollapalooza, Am. Enterprise,
April-May 2005, available at http://www.taemag.com/issues/articleID.18470/article_detail.asp.
116. Paul Hampel, Speedy Court Docket Leaves Justice in Dust, Critics Say,
St. Louis Post-Dispatch, Sept. 19, 2004, at A01.
117. See Illinois Civil Justice Lleague, Asbestos Litigation In Madison
County, available at http://www.icjl.org/images/contentpdfs/040400_Asbestos-FactSheet.pdf
(last visited October 5, 2006).
118. See Paul Hampel, Madison County: Where Asbestos Rules, St.
Louis Post-Dispatch, Sept. 18, 2004, at A01.
119. See Paul Hampel, Bono’s Firm Opened Floodgate to Asbestos
Lawsuits Here, St. Louis Post-Dispatch, Sept. 18, 2004, at A01.
120. See Hampel, supra note 118.
121. See id.
122. Id.
123. Paul D. Boynton, $250 Asbestos Verdict Awarded Against U.S. Steel,
Law. Wkly. USA, 2004, available at http://www.lawyersweeklyusa.com/usa/2topten2003.cfm.
124. See id.
125. Steve Korris, Defendant John Crane Was Plaintiff Foil, Says Attorney,
Madison CountyRec., June 20, 2005.
126. Id.
127. See id.
128. See Hampel, supra note 116.
129. See Facts & Figures about asbestos Litigation: Highlights From
the New RAND Study (Manhattan Institute Center for Legal Policy and U.S. Chamber
of Commerce Institute for Legal Reform 2003), available at http://www.instituteforlegalreform.org/resources/012303.pdf
(showing that only 3% of new asbestos claims were for mesothelioma and almost
90% were nonmalignant); Stephen J. Carroll et al., AsbestosLitigation,
71 & tab. 4.1 (Rand Inst. for Civ. Just., 2005), available at http://www.rand.org/pubs/monographs/2005/RAND_MG162.pdf.
130. See Lester Brickman, Asbestos Litigation, transcript of comments
to the Manhattan Institute, Mar. 10, 2004, available at http://www.manhattan-institute.org/html/clp03-10-04.htm
(“[A]pproximately 110,000
new asbestos claims were filed in 2003 – the most ever in one year.”).
131. See Davies, supra note 3; Jonathan D. Glater, Reading
X-Rays In Asbestos Suits Enriched Doctor, N.Y. Times, Nov. 29, 2005, at
A1.
132. See Joseph N. Gitlin et al., Comparison of “B” Readers’
Interpretations of Chest Radiographs for Asbestos Related Changes, 11 Acad.
Radiol. 243 (2004).
133. See Trial Lawyers Inc. Update no.1: Silicosis (Aug. 2005), available
at http://www.triallawyersinc.com/updates/tli_update_0805.html.
134. See Davies, supra note 3; American Tort Reform Foundation,
supra note 20, at 16, 25.
135. See Carroll eT al., supra note 129, at 71 & tab. 4.1.
136. See Susan Warren, Competing Claims: As Asbestos Mess Spreads,
Sickest See Payouts Shrink, Wall St. J., Apr. 25, 2002, at A1.
137. See Carroll et al., supra note 129, at 79; Brickman, supra
note 130.
138. Hampel, supra note 116.
139. See, e.g., Michelle J. White, Asbestos Litigation: Procedural
Innovations and Forum Shopping, 35 J. Legal Stud. 365 (2005); Michelle J.
White, Asbestos Litigation: The Problem of Forum Shopping and Procedural
Innovations, and Potential Solutions, transcript of comments to the Manhattan
Institute, Sept. 14, 2005, available at http://econ.ucsd.edu/~miwhite/Manh-Inst-talk.pdf.
140. Paul Hampel, “Lipke Rule” Is Unfair to Defendants, Many Argue,
St. Louis Post-Dispatch, Sept. 19, 2004.
141. Steve Korris, Lipke Rule Prevents Asbestos Defense from Presenting Best,
Madison County Rec., June 23, 2005.
142. Allen Adomite, Illinois Civil Justice League, Watch Out Delaware: We’re
Chasing Them Out of Illinois (July 18, 2005), available at http://www.legalreforminthenews.com/Op-Ed/Op_Ed-ICJL-SimmonsCooper.html.
143. Steve Gonzalez, 153 Asbestos and Silicosis Suits Filed in Madison County,
Madison County Rec., Sept. 27, 2005.
144. Steve Gonzalez, Asbestos Cases Continue to Drop in Madison County,
Madison County Rec., July 7, 2006.
145. See Davies, supra note 3. See also Manville Personal
Injury Settlement Trust fourth-quarter filings with the court, available
at http://www.mantrust.org/FILINGS/4thQtr05.pdf,
http://www.mantrust.org/FILINGS/Q4_04/4thQtr04.pdf
(last visited Oct. 5, 2006).
146. See American Tort Reform Foundation, supra note 20, at 16.
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