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7th Circuit

Tuesday, Oct. 5, 2004, started out like any other day in Illinois' Madison County Circuit Court. Paul Palmer, a Louisiana man, was suing 87 companies--among them Viacom, Ford and BP--for allegedly causing his mesothelioma, a cancer related to asbestos exposure.

Palmer lived and worked in Louisiana his entire life. His residence was only 15 miles from the Baton Rouge courthouse. His asbestos exposure occurred in Texas and Louisiana, and his doctors were based in Baton Rouge. The only real connection the case had to Madison County was that it was filed there.

But Palmer's suit isn't unique. Plaintiffs filed 953 asbestos cases in Madison County in 2003, about 75 percent of which were from out of state. Most of those plaintiffs walked away with hefty settlements.

Palmer's attorneys, from the Edwardsville, Ill.-based firm Wise & Julian, had every reason to think this case would go the same way. Judge Nicholas Byron regularly refused to rule on defendants' motions to dismiss on jurisdictional grounds. But what Palmer's attorneys didn't bank on was that Judge Daniel Stack was taking over the county's bloated asbestos docket, and he wasn't quite so welcoming to so-called "litigation tourists."

In his first ruling as chief asbestos judge, Stack, who was promoted from his position as an associate judge, ordered Palmer to take his case to a more appropriate jurisdiction, noting that the Illinois Supreme Court "does not condone forum shopping," and criticizing the Madison County asbestos docket as a "cash cow" for taxpayers that compromises the administration of justice.

That same day, Stack dismissed two other suits from out-of-state asbestos plaintiffs. Tort reform advocates are hailing the decisions as a glimmer of hope for civil defendants in a jurisdiction former U.S. Attorney General Griffin Bell called "a stain on our system."

The Influence Game

It's not difficult to see why plaintiffs such as Palmer have flocked to the small rural county for so long. Judge Byron, the jurist responsible for last year's $10 billion verdict against Philip Morris, has a reputation for being particularly generous to asbestos plaintiffs. In 2003, for example, he awarded a Gary, Ind., steelworker with mesothelioma $250 million, including $200 million in punitive damages.

During his tenure on the asbestos docket, Byron scheduled 20 or more asbestos cases for trial every week, a huge majority of which were settled out of court. Most defendants were rightfully afraid to go to trial there. Of the four cases that made it to a verdict between 1999 and 2003, three resulted in judgments of more than $15 million.

Numbers like those have led the American Tort Reform Association (ATRA) to name the county the nation's number one "judicial hellhole" in 2003 and 2004.

"The problems in Madison County are not just with Byron; they're systemic," says Mark Behrens, co-counsel for ATRA. "The forum has a long history of unfair treatment for civil defendants."

A major cause of the problem is the political power the plaintiffs' bar wields in downstate Illinois. The St. Louis Post-Dispatch recently published a series of articles that revealed what many already suspected--the plaintiffs' lawyers that practice in Byron's court are also the major contributors to his campaigns. The stories suggested that there might be a connection between the level of giving and the results in his courtroom.

Outside observers agree that political contributions play some part in the court's leanings.

"I wouldn't suggest that the judges are doing anything illegal," says Ed Murnane, president of the Illinois Civil Justice League. "I'm just suggesting that they have a very cozy relationship with the plaintiffs' bar and tend to rule very much in favor of plaintiffs."

Byron's resignation came days before the Post-Dispatch's series. Some speculate the increasing media scrutiny of his relationship with the plaintiffs' bar prompted him to step down from the high-profile asbestos docket, although he will still hear other civil cases.

Stack's first three rulings are promising signs of much-needed reform in the way the county handles out-of-state plaintiffs. Still, no one's convinced that Judge Stack is the answer to all the county's problems.

"Three cases dismissed is helpful, but the real question is whether that's just window dressing or evidence of a real change in judicial philosophy," Behrens says. "You have to put it in the context of the hundreds of cases still pending."

Out With The Old

Fortunately, Judge Stack's appointment isn't the only sign of change. Even more important may be the results of the hotly contested race for the 5th District justice of the Illinois Supreme Court. That race pitted Judge Gordon Maag, an appellate judge substantially funded by the personal-injury bar, against Lloyd Karmeier, who was backed by business groups and the medical community.

Business interests mobilized against Magg, who not only lost his run for the Supreme Court seat, but also lost his retention vote, which means he loses his seat on the appellate court as well.

That election was of substantial significance to Madison County. Not only is the 5th District judge responsible for filling any vacancies in the county's circuit court and in the intermediate appellate court, but also is responsible for hearing any emergency appeals for "extraordinary relief" from Madison County. For example, if a circuit judge refuses to rule on a defendant's motion to dismiss a class action, the defendant can file an emergency appeal to the Illinois Supreme Court, on which the

5th District judge rules.

"If courts refuse to rule on motions to dismiss cases brought by out-of-state plaintiffs, the defendants will now have a chance to have their emergency appeal heard by a more fair judge," Behrens says. "In the past, defendants were often forced into settlement because they couldn't afford to litigate these cases and had no recourse in the higher courts."

Advocates for reform hope Judge Karmeier's election will have a tempering effect on the trial courts, both in terms of getting more moderate judges appointed, and making judges in the lower courts aware that if they don't follow the law, they will be overturned.

"What happened in the election is going to be a wake up call to the entire judiciary down there that the voters are tired of seeing their court system used and abused by judges for the enrichment of plaintiff's attorneys," Murnane says. "Karmeier is not beholden to plaintiffs' lawyers, and we think he'll rule more fairly.

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