Illinois Business Journal - Is Madison County the 'judicial hellhole' that tort reformers claim?

EDWARDSVILLE - When advocates of tort reform delivered their Madison County Manifesto a year ago, they touched off a controversy that swept through the medical malpractice insurance crisis this year - one that is now playing itself out in the campaign for a seat on the Illinois Supreme Court.

The American Tort Reform Association later published its "Bringing Justice to Judicial Hellholes 2003" report that targeted Madison County, Ill. as the No. 1 "judicial hellhole" in the country.

This designation was based upon a poll of ATRA members and others in the business community, according to Sherman Joyce, president of ATRA.

"The system is one sided," he said. "The system has produced outrageous results and defendants, who when they find themselves being subject to the judicial process in Madison County, go in thinking they are not going to get a fair shake."

Madison County also made the list in ATRA's first such report in 2002. That report did not rank the "hellholes."

Local trial attorneys Stephen Tillery and Randall Bono said the designation of Madison County as a legal hotbed emanates from a source far more focused than the 300 members of ATRA: the tobacco industry.

"Madison County was never on the radar until Steve Tillery had the cojones to take on the tobacco industry in the little county of Madison," Bono said.

"All of a sudden, Madison County became a judicial hellhole," he said. "The statistics didn't change, the rulings didn't change, the judges didn't change. Nothing changed, except one thing. And that is that three cases were headed for trial, one of them against the biggest gorilla in the tobacco industry. And that's Altria Group (Inc.), owners of Philip Morris (USA)."

In 2003, Tillery won a $10.1 billion judgment in a Madison County court in a class action suit against Philip Morris over its deceptive marketing of light cigarettes.

Madison County civil case records reflect a nearly 40 percent increase in the number of "L" cases filed over the past 10 years. These are defined as civil cases involving claims in excess of $50,000 and include class actions, medical malpractice and asbestos. Over the past 10 years, the number of "L" cases has grown from 1,518 to 2,103.

The ATRA report cited several reasons why business defendants don't feel they get fair treatment by the local judiciary.

"The locally elected judges of the Circuit Court of Madison County," the report reads, "receive at least three-quarters of their campaign funding from the lawyers who appear before them to represent plaintiffs in personal injury, class action or medical malpractice cases." ATRA officials said this type of contribution pattern is grounds for suspicion.

Tillery disagreed. The class action plaintiff's attorney said that 36 out of 50 U.S. states elect their judges rather than appoint them, and that fundraising is part of the election process.

"To make that charge," said Tillery, "is like indicting a yellow dog because it's a yellow dog. There's nothing untoward about the contribution history of any of these judges receiving monies in their campaigns. In many instances, it is probably more contributions from the defense side than the plaintiff's side."

Another reason cited in the ATRA report for the "hellhole" designation is that Madison County judges "are infamous for their willingness to take cases from across the country, with little or no connection."

According to the report, the Illinois Supreme Court had ordered the Madison County Circuit Court to transfer 14 cases to more appropriate venues between 1995 and 2002 and, in addition, ordered the 5th District Appellate Court to reconsider vacating its denial of defendants' forum non conveniens motions 10 times during the same time period.

Forum non conveniens (Latin for inconvenient forum) is employed when the court chosen by the plaintiff is inconvenient for witnesses or poses an undue hardship on the defendants, who must petition the court for an order transferring the case to a more convenient court.

But Bono takes exception to ATRA's claim that "the courthouse is open for business."

"I haven't argued a motion to remove one of our cases from our county in at least two years. I think it's closer to three," he said. "What does that tell you? That in reality, the defendants don't want to leave - or don't think they can win - because of the law."

According to the Madison County Circuit Court Clerk's records regarding venue changes, there were no more than six cases which were granted a change of venue in the past five years, and none so far in 2004.

The ATRA report also quotes a local publication in claiming that Madison County is a "class action paradise."

According to the report, Madison County saw a 2,050 percent increase in class action lawsuits between 1998 and 2001. It says, "Plaintiffs' lawyers know how easy it is to certify a nationwide class in Madison County, persuade the court to apply favorable law and then extract a court-approved settlement that compensates the lawyers far in excess of the victims, who often receive no more than a 'coupon recovery.'"

It highlights a lawsuit against AT&T and Lucent Technologies in which 44 lawyers from four law firms who worked on the case split $80 million in legal fees and $4 million in expenses. The plaintiffs received between $15 and $80 each.

Tillery represented the plaintiffs in that case. He said class action lawsuits are the only way to keep corporations from "committing petty larceny on a grand scale."

When a company has millions of customers, Tillery said, it doesn't have to take much from each one to generate a huge windfall, and states' attorneys general have been ineffective at dealing with consumer fraud.

"The cost of consumer fraud is class action payments," he said. "The answer is not to use the consumer as the resolution for red ink. Don't do it. Then all the lawsuits go away."

ATRA's report dubs Madison County Circuit Court as "Asbestos Central" because of the large number of asbestos illness cases. According to ATRA, Madison County tries more mesothelioma cases than New York City does. ATRA cites former U.S. Attorney Griffin Bell in claiming that "judges accept cases from throughout the state and place them on extraordinarily expedited schedules that do not provide defendants with adequate time to prepare for trial."

Bono said there is good reason for the large number of asbestos cases that the Madison County Circuit Court handles. Illinois is one of the top states in the country in terms of being home to a vast number of companies that produced products containing asbestos. Madison County, according to Bono, ranks 25th out of all the counties in the U.S. in terms of mesothelioma deaths per capita. Furthermore, he said, Madison County has the swiftest-moving asbestos docket.

"There are only two counties in the state that have a standing docket to deal with asbestos cases," said Bono, "Madison County and Cook County. It takes between nine to 12 months to get a case to trial in Cook County and we're generally about six months (in Madison County)."

Time is of the essence in these cases, he said; the average life expectancy for mesothelioma victims, upon diagnosis, is just one year.

ATRA found one more key reason for elevating Madison County to No. 1 on its chart.

When ATRA, the U.S. Chamber of Commerce's Institute for Legal Reform, the Illinois Civil Justice League and the Illinois Chamber of Commerce held their joint press conference on the steps of the Madison County Courthouse in Edwardsville last year, they were subpoenaed just hours later by the The Lakin Law Firm of Wood River.

"The law firm didn't like the fact that we came in and spoke our minds," said Joyce. "We got subpoenaed in a case that we clearly had nothing to do with. We had no role or evidence to offer, but they (personal injury attorneys) wanted to clearly send a message to us and to anyone else who has the temerity to speak out."