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McLean County, Illinois

McLean County, Illinois

Last year’s Judicial Hellholes report for the first time placed central Illinois’ McLean County on the “Watch List.” Those who have watched McLean’s civil justice system work over the past year are not pleased with what they have seen. By and large, however, the jurisdiction’s problems stem from a single type of case – a McLean County phenomenon in which lawyers do not present evidence that their clients worked for any of the employers named in the lawsuit, or that their clients were exposed to asbestos from any of the named defendants’ products. Every case is allowed to go to trial and any case resulting in a plaintiffs’ verdict ultimately gets reversed. Between the legal expenses and the potential for massive punitive damages verdicts, however, those defending such cases have a strong incentive to settle.

In fact, just after last year’s report was published, a McLean County trial before Circuit Judge Scott Drazewski resulted in a near $90 million verdict for Charles Gillenwater, who worked as a pipefitter in the 1970s and later developed mesothelioma. The award included $9.6 million in compensatory damages and $80 million in punitive damages. It is believed to be the second highest verdict of all time for a single mesothelioma plaintiff.

Lawyers in such cases claim that companies or their predecessors engaged in “parallel conduct” and conspired to suppress the dangers of asbestos decades ago – a charge defendants deny. This strategy lets lawyers circumvent the need to show a connection between their client’s injury and the defendant’s products, and gives them a deep-pocket employer to sue when the companies that may actually be responsible for a plaintiff’s exposure have already declared bankruptcy under the weight of lawsuits. In such cases McLean judges take a let-it-all-in approach to expert testimony of questionable relevance and reliability. One local lawyer, James Wylder, has won a string of such trials, culminating in the $90 million award.

But why even bother with trials? In April 2011, Judge Paul Lawrence barred Honeywell from presenting a defense, directed a verdict for the plaintiff, and had the jury deliberate only on damages. Stripping away Honeywell’s defenses was an action Judge Lawrence said he did not undertake “lightly,” but that it nonetheless was “the appropriate thing to do.” His reason? Citing his age and need to remain with family, an elderly Honeywell consultant living in New Jersey was not prepared to travel again to central Illinois to offer the same testimony for the 23rd time, as plaintiffs’ lawyers have sought to relitigate the same basic facts in order to wear down the defense.

The Fourth District Appellate Court has repeatedly reversed these multimillion-dollar verdicts, and this year found a lack of evidence of a conspiracy. For instance, plaintiffs have desperately relied on defendants’ mutual membership in a trade association, a board member shared by two defendants, one defendant’s assistance of another in drafting a position paper on the dangers of asbestos, and an allegation that the defendant companies suppressed results of a study on eight or nine mice that lacked scientific significance. Nevertheless, trial courts continue to allow these cases to go to the jury.

The situation has led legal observers to exclaim “Move over, Madison County” and note that “McLean County seems to be descending deeper and deeper into Hellhole status.” An eye-popping award, application of what has been described in this report as the “civil death penalty,” junk science, and allowing plaintiffs to recover with no direct link to the companies they sue place McLean County tentatively in the ranks of Judicial Hellholes for 2011/2012. Perhaps trial and appellate judges, whose souls have thus far appeared tortured over the question of whether these costly asbestos conspiracy lawsuits have any legitimacy, can finally come to a reasoned conclusion and pull McLean County away from the temptations of frivolous litigation and back toward the judicial mainstream.

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