As the number of new asbestos lawsuits declined nationally, activity in Illinois’ three hotbeds for asbestos litigation showed few signs of ebbing in 2017, even though the distribution of filing activity has shifted slightly.
Recently, Washington, D.C.-based consulting group KCIC released an analysis of U.S. asbestos exposure case filings, showing in 2017 total new asbestos exposure-related lawsuits dropped another 7.5 percent compared to 2016, continuing a trend first observed in 2016. That year, asbestos filings dropped about 10 percent nationwide.
All told, in the past three years, asbestos-related lawsuits have dropped by nearly 17 percent nationwide, from 5,336 in 2015 to 4,450 last year.
Mark Behrens
However, in the three Illinois county court systems accounting for nearly all of the state’s asbestos filings and one-third of all filings in the U.S., asbestos litigation continued on with little abatement.
In Cook County, asbestos filings declined by about 12 percent in 2017 compared to 2015. In all, Cook County courts received 164 new asbestos lawsuits last year, vs. 187 in 2015, KCIC reported. However, when compared to 2016, asbestos filings actually climbed about 15 percent, up from 143 new lawsuits a year earlier.
Madison County’s courts continued to serve as the state’s and the nation’s asbestos litigation capitol, with the courts there taking in 1,128 asbestos exposure lawsuits in 2017. That figure was down slightly from 2016, when 1,303 new lawsuits were initiated, but the 2017 numbers were down a bit from the 1,191 filed two years earlier.
However, any statewide decline from the slight ebbing of activity in Cook and Madison counties was largely erased by a surge of new asbestos litigation in Madison County’s neighbor, St. Clair County, which logged 207 new lawsuits in 2017, an increase of 200 percent from the 69 lawsuits filed in 2016.
In 2015, St. Clair County received 109 new asbestos-related lawsuits.
Across the country, asbestos exposure litigation also remained heavily concentrated in these three and seven other “Top 10” legal jurisdictions, including Baltimore, Md., New York City, Philadelphia, St. Louis, Wayne County, Mich., New Castle, Del., and Kanawha, W.V., according to the KCIC report.
Collectively, Cook, Madison and St. Clair counties and seven jurisdictions outside Illinois accounted for 3,228 new asbestos filings in 2017, or nearly 73 percent of the total filed nationwide, KCIC reported.
“The concentration of asbestos filings in only a few jurisdictions is an ongoing occurrent,” the KCIC report said. “Asbestos plaintiffs reside in all 50 states, yet over 50 percent of total filings are filed in only five jurisdictions. These jurisdictional hubs are targets for ‘litigation tourism.’”
The report noted, in Illinois, plaintiffs residing outside Illinois accounted for at least 60 percent of all asbestos lawsuits filed in 2017.
| Top Locales 2017 | 2015 | 2016 | 2017 | Change '16-'17 |
| Madison County | 1,191 | 1,303 | 1,128 | -13.4% |
| Baltimore, Md. | 694 | 548 | 495 | -9.7% |
| New York City | 401 | 369 | 346 | -6.2% |
| Philadelphia | 233 | 247 | 263 | 6.5% |
| St. Clair County | 109 | 69 | 207 | 200% |
| St. Louis | 236 | 315 | 188 | -40.3% |
| Wayne Co., Mich. | 312 | 190 | 185 | -2.6% |
| Cook County | 187 | 143 | 164 | 14.7% |
| New Castle, Del. | 132 | 144 | 130 | -9.7% |
| Kanawha, W.V. | 94 | 98 | 122 | 24.5% |
| Subtotal Top 10 | 3,589 | 3,426 | 3,228 | -5.8% |
| Grand Total - ALL | 5,336 | 4,812 | 4,450 | -7.5% |
| Source: KCIC industry report "Asbestos Litigation: 2017 Year in Review" |
BMS EFFECT?
However, that may soon change, the report hinted.
In 2017, the U.S. Supreme Court issued a seminal ruling in the case of Bristol Myers Squibb v Superior Court of California, greatly restricting the ability of courts to exercise so-called personal jurisdiction over out-of-state defendants. This decision was then reinforced in the Prairie State when the Illinois Supreme Court relied on the Bristol Myers Squibb decision in declaring a Michigan insurance company couldn’t sue an Indiana-based warehouse company in Cook County court for losses sustained at the warehouse company’s facility in Will County, in the case docketed as Aspen American Insurance v. Interstate Warehousing.
While the full impact of these decisions are still being measured, KCIC said it has detected signs the shift in case law is leading plaintiffs to spread their litigation among a variety of jurisdictions, and more carefully select the defendants they name in their lawsuits.
To detect some of the changes beginning to occur, the report examined the behavior of some of the law firms responsible for outsized shares of asbestos litigation in Illinois and the nation.
The report noted three Illinois firms – Edwardsville-based Gori Julian & Associates, Alton-based Simmons Hanly Conroy, and Chicago-based Cooney & Conway – collectively accounted for more than 26 percent of all asbestos exposure lawsuits filed nationally last year. Of these, the Gori firm claimed 13.2 percent of all asbestos lawsuits in 2017, while Simmons logged 8.5 percent, and the Cooney firm grabbed 4.7 percent.
However, the KCIC report noted the Gori Julian firm, for instance, has, since 2015, begun to widen its geographical footprint, expanding litigation to seven new states, in addition to its traditional base of operations in Illinois and Missouri.
Further, since 2015, the Gori firm’s non-resident share of asbestos filings declined sharply in 2017, dropping to 60 percent, a six percentage point decline from 2016.
“… The effects of the (Illinois Supreme Court) ruling are not yet apparent, but the decrease of filings in 2017 could be a sign that plaintiff firms are moving their cases to states with a more favorable (or non-existent) personal jurisdiction legal environment,” KCIC said in their report.
Mark Behrens, a Washington attorney involved in asbestos litigation reform efforts, said that decreases in filings "do not necessarily reflect the whole picture with regard to the cost of the litigation if plaintiff firms demand higher values for the cases they file or if defense costs rise."
"That data is not available," he said. "Even with a slight decrease in filings the asbestos litigation is still extremely costly for employers and needs to be reformed."
Behrens also said the data could reflect the "beginning of a long, slow decline in filings that may go on for several decades."
"The decline also may reflect that the dominant plaintiff law firms are diversifying into other litigation such as opioids or that some of the less reliable or weaker claims are being pursued in the trust system. Tort reforms such as asbestos trust transparency laws and court rulings excluding some plaintiff experts also could be a factor."
BANKRUPTCY TRUST TRANSPARENCY REFORM
The report attempted to examine some of the impact of tort reform in other states, noting 13 states have enacted bankruptcy trust transparency reforms to help ensure claimants to asbestos liability trusts don’t “double-dip from both the courts and the trusts.
Its analysis focused on Ohio because it was one of the first states to pass BTT legislation in 2013, and because it was also the first state with a significant number of asbestos cases to do so.
The report found a significant decrease in filings of 45 percent between 2013 and 2014. By comparison, overall filings in the U.S. decreased less significantly at 19 percent during that period.
It also found that mesothelioma claims in Ohio dropped during the same period, by 36 percent, while the decrease of mesothelioma claims in the U.S. was only 2 percent.
"The disproportionate decrease in Ohio may not be completely due to BTT legislation; there could be other factors impacting that state’s filing rates," the report states. "However, from these findings, we can start to make some inferences about the effect that BTT legislation may have."
The report also found that since BTT legislation was passed in Ohio, there was a "clear increase" in the percentage of Ohio residents filings in state courts - rather than out of state claimants.
John Pastuovic, president of the Illinois Civil Justice League, suggests the Illinois General Assembly adopt similar BTT legislation.
"The Illinois legislature should look to Ohio as an example of a state that has passed necessary asbestos trust transparency legislation," he said.
"This type of legislation is critical in Madison County where one-third of all new asbestos cases were filed last year and St Clair County, which saw their asbestos docket grow. If changes are not made, plaintiffs' lawyers in Madison as well as St. Clair counties, will continue to exploit the disconnect that exists between the asbestos trust and personal injury lawsuit system."