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County's courts win some breathing room
While asbestos-related lawsuits swamp other jurisdictions, judge here keeps system clear

Monday, March 26, 2007
Chicago Tribune
by Ameet Sachdev

Cook County courts have a reputation as an unfavorable forum to defend civil suits involving companies, a "judicial hellhole" in the words of one pro-business group.

But when it comes to handling asbestos injury cases, Cook County is viewed as a model of efficiency.

"You know what they say, `Justice delayed is justice denied,'." said Judge William Maddux, the genial 72-year-old who oversees all the county's asbestos suits. "Let's get justice."

So while Cook County, one the nation's largest state court systems, has about 716 active asbestos cases, more than 37,000 such cases were logjammed at the end of last year in Cuyahoga County in northern Ohio.

Now, courts across the country are enacting reforms to do what Cook County began decades ago: They are sidelining cases from the active caseload that do not involve people who are sick or show symptoms of diseases related to asbestos.

As a result, asbestos litigation, which the U.S. Supreme Court described 10 years ago as a crisis, has taken a turn.

"We're entering a new world on asbestos litigation nationally," said Mark Behrens, a defense lawyer who writes about asbestos-litigation trends. "We're not seeing junk cases filed in large numbers anymore."

For his part, Maddux has an aw-shucks attitude when others sing his praises about the way he manages the caseload.

Every other Tuesday, as he has done since he took over the asbestos docket about five years ago from retired Judge Dean Trafelet, Maddux sits in his courtroom on the 20th floor of the Daley Center and presides over the handful of asbestos cases slated for trial.

Starting at 11 a.m., he listens to lawyers argue for more time to interview witnesses or gather evidence, or in some rare instances ask for a change of judge. The set-aside hour is what's known in legal jargon as a "motion call."

Last week the judge was running late. Wearing white shirts and dark suits, about a dozen lawyers congregated near the entrance of his courtroom, speaking in hushed tones. Some took out their BlackBerries to check e-mail. As the minutes ticked by, several entered the courtroom and lined up against the wood-paneled outer walls. Others took seats on the hard, wooden benches, reading court documents that they would soon hand the judge.

By the time Maddux's clerk announced the first asbestos case, it was nearly 11:40 a.m. The announcement sparked a rush to the front of the courtroom where the judge sat. More than 60 lawyers were looking up at him. One female attorney remarked that the courtroom "seems extra crowded."

Maddux intently listened as a defense lawyer made a request for more time to obtain employment and medical records from the employer of the plaintiff, a man who has mesothelioma, a cancer caused by asbestos.

The employer had not been cooperative, and the defense lawyer asked to delay the trial, set to begin April 3. The plaintiff's attorney argued that his client had lost 40 pounds and may not survive to attend the trial if it is postponed.

One year to prepare

Maddux denied the request for a continuance and told the defense lawyer to subpoena the employer, ordering it to bring the records to the trial or be held in contempt.

His denial is illustrative of how Maddux keeps the asbestos cases on track. His goal is to give both sides about a year to prepare for trial, though most cases are settled before they reach that stage. It is an ambitious schedule, considering some complaints run 300 pages and have more than 50 defendants.

"What you try to do is give a person a day in court while they are still with us," Maddux said in an interview after the motion call.

He follows case-management guidelines that Cook County put in place in 1990s. The guidelines were aimed at preventing the court from being overwhelmed with thousands of claims from people who had been exposed to asbestos, but who had not contracted cancer or other life-threatening illnesses.

These so-called unimpaired claims--described by defense lawyers as "junk" cases--have delayed justice in numerous other jurisdictions and created a litigation mess rife with unscrupulous lawyers and doctors.

But Cook County's system has created some friction.

Lawyers on both sides complain that the case-management rules treat every asbestos case the same, despite the individual circumstances. Sometimes the pressure to quickly move cases through the system shortchanges people.

"The court rides hard on everybody to get those cases through the system," said Robert Riley, a defense lawyer at the Chicago law firm of Schiff Hardin, who has been involved in asbestos litigation for more than 20 years. "If you're denied the opportunity to develop a case more fully in the name of an overarching case-management system, it can be frustrating,"

Maddux said he can sense when the trial schedule has become too cumbersome in a particular case, and he will grant a delay. But he does so sparingly.

"I've cracked the whip enough that they don't expect to get anywhere with their arguments for delay," he said.

Maddux runs a disciplined courtroom, but he doesn't take himself too seriously. He likes to make small talk with the lawyers, especially those who regularly appear in his court, and keeps things lighthearted. In court on Tuesday he asked a plaintiff's attorney whether he had attended a St. Patrick's Day luncheon.

"The cabbage was raw again," Maddux cracked. "There's nothing worse than raw cabbage."

Peers approve

There's also nothing worse than a giant asbestos case backlog, and judges in other jurisdictions have taken notice of how Maddux manages cases.

"I like the way he approaches the cases," said Judge Harry Hanna of the Cuyahoga County Common Pleas Court in Ohio, who oversees the asbestos docket. "I think you've got a good one."

Cook County has earned kudos for starting an "inactive" docket for unimpaired claims in 1991, long before other judges recognized a problem with claims from people who were not sick. The registry, which has about 1,400 cases, is a parking lot for such claims. If the plaintiff gets sick later, the case is transferred to the active docket.

The Cook County registry pre-empted lawyers from filing massive numbers of cases for healthy people. In other cities the unimpaired cases have overwhelmed the court system, clogging dockets and reducing compensation to those truly ill.

Through the 1990s and into the new century, asbestos cases became a dire threat as companies faced tens of thousands of new cases every year. In 2001 alone, an estimated 90,000 new claims were filed.

The surge was blamed on healthy people bringing claims, lawyers said. They filed claims because they might have been exposed to asbestos and were afraid that if they waited until they got severely ill, they might not have the right to sue.

Mesothelioma can take years to develop. A more common ailment is lung damage consistent with asbestosis, or asbestos-related lung disease.

But some of these claims were medically unfounded, drummed up by plaintiffs' lawyers and doctors who operated mobile X-ray vans to screen thousands of workers.

More than 730,000 people had filed injury claims starting in the early 1970s through 2002, according to a 2005 study by the Rand Institute for Civil Justice in Santa Monica, Calif.

The suits hit thousands of companies, some that made asbestos or used it heavily in their products, such as shipbuilders. But the vast majority of defendants are companies who used small amounts of asbestos in their products, or whose workplaces contained asbestos in insulation or other building materials because of its fire-retardant properties.

Dozens of those companies filed for bankruptcy between 2000 and 2004, including Chicago-based USG Corp. in 2001. At the time the maker of wallboard faced more than 150,000 lawsuits filed by workers claiming they were exposed to asbestos in a joint compound found in the company's products. USG said it was getting bled by claims from people who did not work for the company and who had no symptoms of asbestos-related diseases.

As estimates for the cost of resolving the claims rose to as high as $200 billion, Congress in 2003 proposed setting up a $108 billion private trust fund that would administer asbestos claims. Companies facing asbestos claims would contribute to the fund based on a sliding scale of liability and prior payments. But none of the interested parties could reach an agreement, and the bill died.

Now the need for such a federal fund is waning as other state courts are following Cook County's example.

They are increasingly suspending suits filed by people who have not demonstrated asbestos-related impairment, giving priority to the sick. Ohio, Florida and some other states have enacted laws in the last three years that basically legislate what Cook County did through court reforms.



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