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Donation controversy focuses attention on Madison County asbestos litigation

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Donation controversy focuses attention on Madison County asbestos litigation
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Barbara Crowder
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Judge Barbara Crowder controversy timeline

Sept. 29 • Crowder opens requests for 2013 asbestos case trial dates

Nov. 4 • Deadline for plaintiff firms to submit written requests

Nov. 6 • Judicial campaign retention committees can begin fundraising

Nov. 30 • Crowder hears oral comments about 2013 calendar

Dec. 1 • Crowder issues preliminary order assigning trial dates

Dec. 1 • Crowder's husband signs campaign fundraising paperwork

Dec. 5 • Campaign officially receives $5,000 from each of four lawyers

Dec. 6 • Campaign officially receives $1,000 from each of 10 lawyers

Dec. 12 • Chief judge orders Crowder off asbestos cases

Dec. 14 • Crowder denies wrongdoing, says campaign will return money

EDWARDSVILLE • The slots at the Madison County Courthouse can lead to big-dollar payouts that rival anything at a casino.

These so-called slots aren't machines with flashing lights but hundreds of entries on a docket, a legal word for a court schedule. They reserve trial dates for asbestos damage cases that may not even have been filed yet.

In theory, a court date can be waiting for someone who hasn't filed suit or hasn't even learned he's sick.

A political fundraising controversy last month led to the replacement of the judge in charge of the docket. It also drew attention to a unique asbestos litigation fast-track process that is lauded for rushing millions of dollars into the pockets of the dying but criticized for rushing millions into the pockets of their lawyers.

Ordinarily, someone claiming damages files a lawsuit in his name, and the case is put on a civil trial docket as the first step on the road to trial. Often, both sides eventually agree to a financial settlement rather than risk the uncertainties of a verdict.

But Madison County attracts so many asbestos-related cases that years ago its courts devised a special process to manage them. Law firms with that specialty are assigned blocks of trial dates in their own name, and lawsuits are filled in as they're filed.

Proponents say it's efficient. Opponents say it's unfairly efficient, providing plaintiffs' firms with a hammer to force defendants — invariably asbestos manufacturers or businesses that used the product — into acquiescence on what effectively is a judicial assembly line.

The issue smoldered for years among legal and business interests. But it burst into full flame after Circuit Judge Barbara Crowder's retention election campaign fund accepted $30,000 in contributions from plaintiffs' firm lawyers in December, just days after she allotted the slots for 2013.

She denied any connection, calling the order "one of those straightforward, innocuous things every judge does" that falls within long-established standards.

But the timing looked bad enough that Chief Judge Ann Callis moved her off asbestos cases last month, County Board Chairman Alan Dunstan called for an investigation and Crowder returned the money.

THE NATION'S VENUE

Madison County is a logical asbestos lawsuit hub. Its heavy industries used the material for fireproofing for many years — before doctors determined that if inhaled, its fibers can cause deadly lung complications. The area's heavily unionized residents filled juries perceived as worker-friendly. The local legal community already developed a specialty in personal injury law by pursuing cases for rail and barge workers injured around the country, a cottage industry that drew its own controversy a generation ago.

In the 1980s, Madison County saw hundreds of asbestos cases filed by workers exposed to the material at workplaces including Granite City Steel, Laclede Steel Co. in Alton, the Shell Oil refinery in Roxana, the Amoco refinery in Wood River and the Clark refinery in Hartford.

By 2011, 953 asbestos cases were filed, tying the county's record high in 2003, when a Post-Dispatch review found that at least $1 billion in claims were resolved there. Almost all were settled before trial. And almost all involved plaintiffs who were not from Madison County, suing defendants that did some kind of business there.

Dan Stack, a retired judge who handed the asbestos duties over to Crowder in 2010, said the dedicated docket was created more than 25 years ago so one judge could specialize in the complicated litigation and ease its burden on the courts. The slot reservation system was added as an improvement, he noted.

Critics such as Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform, say the setup allows law firms to "harvest" clients from throughout the country and "extort" high-dollar settlements in a fast-paced environment that cripples a defendant's ability to prepare for trial.

Asbestos cases have spawned defense specialty firms as well, but they have been hesitant to criticize or praise the system, privately citing a fear of retribution from judges or the corporations they defend. Several declined to comment for this story.

Rickard noted that defense firms profit from the system as well.

She said Madison County's asbestos docket appears to be the only one of its kind in the nation.

John Leubsdorf, a Rutgers University law professor who specializes in ethics, said, "It doesn't make much sense" to build a system on law firms rather than plaintiffs. "It reminds me of back in the 18th century, when judges used to hear cases from lawyers in the order of (the lawyer's) seniority." That way, he said, "The senior lawyers would end up getting all of the cases."

He added, "Obviously, we don't do that anymore."

Last year, a group of corporations contested the reservation system in court, complaining that the trial slots exceeded local demand.

"This oversupply of trial dates attracts out-of-state plaintiffs who have the incentive to forum shop, file with a local plaintiffs' firm with empty future trial slots, and guarantee themselves a trial date within 8, 9, or 10 months of filing," said a motion, signed by law firms representing corporations, including Ford, General Electric and CBS.

Crowder kept the system in place.

SERVING DYING PLAINTIFFS

Most Madison County asbestos cases involve mesothelioma, a deadly cancer that can form after even a minimal exposure. All of Illinois had 137 mesothelioma diagnoses in 2007, the most recent year with statistics available. In 2010, court papers show, 506 mesothelioma-related cases filled in the reserved slots in Madison County.

Stack, the retired judge, noted, "These cases are going to be filed somewhere." He said it's easier for corporations to defend themselves in one common venue than in courts scattered across the nation.

He said the reserved slots cut through bureaucracy to rush relief to injured workers who are often in their last days.

"These plaintiffs are dying, and it allows them to get into court quickly," he explained. "If they get the money six months before they die, it gives them peace of mind and resolution that their family will be okay."

Michael Angelides, of the Alton-based plaintiffs' firm Simmons Browder Gianaris Angelides & Barnerd, called the system "the best in the country," getting cases to the trial stage in six to 12 months . He said most of his own cases are on file with real plaintiffs before the slots are given. "I can't speak for anyone else," he added.

The firm's website says it has recovered more than $4 billion in claims, although it's unclear how much was in Madison County.

The other firms represented in the donations were Goldenberg Heller Antognoli & Rowland, and Gori Julian & Associates, which both have offices in Edwardsville.

A 93-page standing court order controls operation of the asbestos docket. The judge schedules 28 trial weeks a year with 19 slots per week. At the beginning of the trial week, a judge can consolidate some of the cases based on various factors, including commonality of work site, trade union and disease. Most cases are settled, so trials are rare.

"It's like an army budgeting its supply," Stack said. "You look at past performance. You know certain firms have more business than others. Without this, it leaves the defendant without any anticipation of what is to come in the following year."

He noted that with this efficiency, "one-fourth of all asbestos cases filed in the U.S. get resolved in Madison County every year."

Rickard claims that most defendants don't know which of those 19 cases will actually go to trial until the start of the week, putting them at a disadvantage.

When big asbestos cases have gone to trial, results went to both extremes. In 2003, a jury awarded a then-U.S. record $250 million to an Indiana man who had sued U.S. Steel. But when Ford Motor Company made a rare move and contested an asbestos claim at trial in 2010, it won.

CONTRIBUTIONS TO THE JUDGE

Crowder, who was elected circuit judge in 2006, quietly handled family court matters for years before being assigned to replace the departing Stack.

She is up for a retention vote in the Nov. 6 election, needing approval of 60 percent to keep her job.

Under an Illinois Supreme Court rule, her campaign was allowed to begin fundraising Nov. 6. Crowder preliminarily assigned the asbestos docket earlier than in previous years. On Dec. 1, she preliminarily assigned about 500, mostly to three large firms.

That also was the day her husband, lawyer Lawrence Taliana, signed paperwork as campaign chairman to organize her political committee. It received donations of $5,000 each from four of those firms' lawyers on Dec. 5, and donations of $1,000 each from 10 others the next day.

One contributing lawyer told a reporter that Taliana solicited the money and specified the $10,000 per firm that was received. The donation became public on routine financial disclosure forms and lit a firestorm in the courthouse.

Callis, the chief judge, quickly reassigned Crowder, citing concerns for "the public trust in a fair and unbiased judiciary." Others, including Dunstan, the county board chairman, demanded a probe. The state Judicial Inquiry Board, which operates in secret, is presumed to be investigating.

Last week, state Reps. Dwight Kay, R-Glen Carbon, and Paul Evans, R-O'Fallon, introduced legislation that would require judges to recuse themselves if an attorney in a case has contributed more than $500 over five years and if the other side files an objection.

Callis referred all questions about the reservation system to judges directly involved in it.

Judge Clarence W. Harrison, whom Callis named to take over the docket, said he is still trying to understand its nuances, and plans a hearing in March to review Crowder's order and take comments.

Illinois judges are barred from personally soliciting contributions, but their committees can. A Supreme Court rule says judges 'shall encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate."

Crowder removed her husband as campaign manager and returned the money.

In an interview for this story, Crowder would not say specifically what and when she knew of the donations. "Clearly I heard about it later," she said.

She insisted she did nothing wrong, and that the donations, which are legal, had no impact on her judicial performance. "When you walk into a courtroom, you're a judge and you do it fairly," Crowder said.

She also said she had sought input from lawyers on both sides and that, "In my personal opinion, nobody got exactly what they wanted."

The U.S. Chamber of Commerce seized on the incident to characterize the system as "a type of asbestos lawsuit futures market of immense value to those plaintiffs' firms who have been assigned court slots." The chamber said, "It is this compromised system that is the root of the cash-for-trials scandal which caused Judge Crowder's reassignment."

Ex-judge Stack acknowledged that the circumstances don't look good, but steadfastly defended the system.

"The dates aren't sold," Stack insisted. "Never have been. This recent ignorant act by Judge Crowder and her husband m—ade it look horrible. But that's not what they were doing. I don't believe that."

It remains unclear how long the supply of asbestos plaintiffs — and the special docket here — will last. Much of its use has been banned in the U.S. since the 1970s. But symptoms may not set in for 30 to 50 years after exposure, according to the National Institutes of Health.

Lawyers may someday have to look abroad for business. A 2011 study said Asia now accounts for 64 percent of the world's asbestos use.

Follow reporter Nick Pistor on Twitter at www.twitter.com/nickpistor

Copyright 2012 stltoday.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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