IL Supreme Court removes asbestos case from judge accused of abusing authority in pursuing sanctions

By Jonathan Bilyk | Sep 18, 2017

The Illinois Supreme Court has removed a Cook County judge from an asbestos personal injury case, granting a request from lawyers who had asked the court to step in and block a "rogue" judge from continuing his sanctions proceedings amid a bench investigation of a situation the judge said resembled an improper “grand bargain” between plaintiffs’ lawyers and those for a company named as a defendant in the case.

On Sept. 6, the state high court ordered the judges overseeing the county circuit court to transfer the case from Circuit Judge Daniel Lynch. The transfer was carried out Sept. 12, according to Cook County court records.

The brief Supreme Court order did not explain why the case was transferred. However, it said Justice Robert Thomas “took no part” in the decision.

On Sept. 19, the case was refiled in the Cook County Circuit Court's Law Division and assigned to Circuit Judge Larry Axelrood.

The decision came about a month and a half after Supreme Court Justice Mary Jane Theis slapped an emergency stay on proceedings in the case docketed in Cook County Circuit Court as Roxanne Richards, et al., v. Dana Companies LLC, et al.

That stay had been handed down on July 19, the same day attorney Nicholas Vogelzang, formerly of the Chicago law firm of Connelly & Vogelzang, asked the state high court to exercise supervisory authority and remove Judge Lynch from presiding in the Richards case, alleging Lynch had engaged in “a gross abuse of his judicial authority that has been indiscriminately wielded against all parties, their lawyers and their respective law firms who are now ensnared in a judicially-driven quest to impose a draconian and unprecedented series of sanctions.”

The Richards case had been pending in court since 2014, when the family of plaintiff Bertha Winford, who later died, filed suit in Cook County court against an array of defendant companies, alleging they should bear responsibility for Winford’s mesothelioma lung cancer, which allegedly was caused by exposure to asbestos.

The common accusation, which lies at the core of many thousands of similar asbestos exposure cases filed regularly in Cook and Madison counties and elsewhere around the country, was leveled by Winford’s family against many of the same defendants named in many other asbestos cases, including such companies as Ford, the Dana Companies, Honeywell, Georgia Pacific and Chicago-based John Crane Inc. (JCI).

The Winford family, which included Winford’s daughter, Roxanne Richards, was represented in the lawsuit by Vogelzang and his firm.

The case went to trial in 2015, but was eventually settled confidentially. Judge Lynch signed off on that settlement deal.

However, in November 2015, before the settlement was finalized, attorneys for Ford and others  asked the court to order sanctions against JCI and attorneys from the firm of O’Connell, Tivin, Miller & Burns, which had represented JCI, and the Vogelzang firm. Ford and others alleged “gamesmanship” on the part of JCI’s attorneys and those for the plaintiffs, essentially alleging JCI had agreed to be installed as a “straw man Illinois defendant.” They said that strategy would allow the plaintiffs to keep the case in Cook County court, which was considered a more favorable judicial forum when compared to federal court, and would ultimately allow JCI to avoid paying any damages in the case.

JCI denied the accusations, calling the sanctions request “unprecedented.”

Ford and others would later withdraw their sanctions petitions, but in March 2016, Lynch then acted “sua sponte” – meaning without a request from either party – to retain jurisdiction of the case and essentially launch his own investigation of the claims.

In July 2017, Lynch filed a 270-page document he called a “ruling as preliminary findings on sanctions.”

In that document, he asserted authority under Illinois Supreme Court rules and “the court’s inherent power” to conduct the inquiry and impose sanctions against a number of litigants and attorneys involved in the case, which he said could now also include Ford, Genuine Parts Company, Honeywell and other defendants, and their lawyers.

Lynch said he intended to take action to address what he called a “pattern” of behavior involving counsel for both the plaintiffs and JCI in the Richards case, and others, in which the Vogelzang firm would name JCI as a defendant in asbestos exposure cases, but would never “pursue” them in court to obtain either a settlement or damages at trial.

The judge said the pattern was evident in the Richards case and in all of the more than 50 other asbestos liability cases the Vogelzang firm had filed in Cook County court since 2009.

“At this point the testimony is not convincing,” Lynch wrote. “Left unexplained, naming, not pursuing, remaining, and eventual dismissal appears to be the similar pattern between C&V and JCI …

“JCI’s repeated joinders followed by repeated dismissals without a whisper of abuse of process, are consistent with a grander scheme. At this time, it is the only logical and full explanation evident for that which makes no litigation sense and no sense otherwise.”

Judge Lynch had proposed an array of sanctions, which could have included forcing the parties to reveal the Richards settlement; vacating the settlement and entering a default judgment against JCI, compelling JCI to stand trial for damages; ordering JCI to “draft and implement a Cook County asbestos litigation policy … which ensures its regular, consistent and active monitoring of its Cook County asbestos litigation cases,” including semiannual appearances before the presiding judge of the Cook County Circuit Court Law Division to ensure compliance, until 2020; compelling OTMB to pay the Winford family’s costs to pursue JCI; compelling the Vogelzang firm to pay the Winford family 30 percent of its fees from the case; and ordering the other co-defendants named as additional respondents to the case to pay 20 percent of their attorney fees from the case.

 In response to the ruling, Vogelzang, through his attorneys with the firms of Taft, Stettinius & Hollister and Goldberg, Weisman and Cairo, petitioned the Supreme Court to intervene to stop the judge from continuing to act against “the ‘intra-judicial’ fraud mosaic he (Lynch) has created.”

Vogelzang asserted the state high court must bar Lynch from continuing in the case to stop a “dangerous and unprecedented abuse of his judicial office” producing “an endless treadmill of hearings in which (Lynch) became investigator, advocate and jurist in the same proceeding in which he made it clear that any effort to dislodge his fixed notions of how the case should end is a futile gesture that offends sensibilities of the court.”

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Organizations in this Story

Goldberg Weisman Cairo Illinois Supreme Court John Crane Inc. Law Office of Nicholas J. Vogelzang O'Connell Tivin Miller & Burns LLC Taft, Stettinius & Hollister LLP

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