From the St. Louis Post-Dispatch

Speedy court docket leaves justice in dust, critics say
By Paul Hampel
Of the Post-Dispatch
©2004, St. Louis Post-Dispatch
09/19/2004

Lawyer Randall Bono, left, talking with Circuit Judge Nicholas G. Byron during an asbestos docket in February at the Madison County Courthouse in Edwardsville.
(Huy Richard Mach/P-D)Lawyers have labeled Madison County's asbestos court a "rocket docket" for the speed at which business is done.
The man with his hand on the throttle for the past 10 years has been Circuit Judge Nicholas G. Byron.
In the last five years, his courtroom has risen to the top tier of asbestos litigation venues nationwide - particularly the lucrative suits involving deadly mesothelioma.
But many of the businesses and insurance companies that end up paying out millions in damages say justice is not part of the equation in Madison County.
They say questions of venue, jurisdiction and liability fly out the window as trial dates are quickly set in a court system run by Democratic judges whose campaigns are financed by contributions from Democratic plaintiff lawyers.
Most of the judges are former plaintiff lawyers, partners of plaintiff lawyers or related to them.
Those elements, defense attorneys contend, give plaintiff attorneys a home-field advantage in Madison County on virtually every motion in asbestos cases.
Last year, tort-reform groups tagged the county the nation's No. 1 "judicial hellhole" for business defendants and cited as exhibit No. 1 Byron's decision to award $10.1 billion in damages in a class-action suit against Philip Morris USA.
Byron, a Democrat, is a former Edwardsville alderman and two-term state's attorney. He declined to be interviewed for this series. Shortly after the newspaper's last request, he announced without explanation that he was stepping down from the asbestos docket, effective July 23.
But Byron has not been shy about making his views known inside his courtroom.
At a docket hearing on June 20, 2003, he laid out his role in asbestos litigation in response to a request from a Pennsylvania defendant who wanted a case moved because it had no connection to Madison County.
"You know, as a result of certain events that have occurred, and most of them concern me, since first of this year, I have come to certain revelations," Byron said.
"And the one revelation that has struck me - I want this on the record - is that, first of all, I am not a Madison County judge. I get retained here, but I am a state of Illinois judge. I am concerned not only with the citizens of Illinois, I am concerned with all Americans.
"You know what? I am going to expand - in defiance of all of these attacks - I am going to expand the concept that all courts in the United States are for all citizens in the United States, with certain reasonable exceptions.

"I don't consider yours reasonable. Motion denied."

Last year, 953 asbestos cases - 457 of them for mesothelioma - were filed in Madison County. More than 300 mesothelioma claims were set for trial last year, more than in New York or Chicago.
Plaintiff attorneys say the speed of the court serves those mesothelioma victims. They generally die within a few years after the disease develops; they would be dead before most courts got to their cases.
But defense attorneys say the court's pace - with trials often set only six months after a suit is filed, often setting dozens of trials for a particular week - makes it impossible for defense attorneys to prepare for any of them, and weakens the defense position in settling them.
"We have to prepare for dozens of cases from around the country and we don't know which case (the plaintiff lawyer) is going to call," said a defense attorney who asked to remain anonymous. "But Randy Bono can focus on one case like a laser."
Bono, of SimmonsCooper, Madison County's leading firm in filing mesothelioma suits, defended the setting of multiple trials for the same week.
"When it comes to asbestos, the judge sets 24 cases a week anticipating that the vast majority will get settled," he said. "It's not unusual for a court to set a lot of cases for trial. I did it when I was judge."
Besides, he added, "Six months is oodles of time for a defense attorney to prepare for trial."
Bono has been both a circuit and associate circuit judge in Madison County. Only six weeks after leaving the bench in 2000, Bono was co-counsel with the Chicago firm of Cooney & Conway in one of the rare asbestos trials in the county. It resulted in a then state record $34 million verdict for his client, who suffered from mesothelioma.
Connections between judges and plaintiff attorneys are not unusual in Madison County. At least a dozen judges, associate judges and appellate judges from Madison County worked as plaintiff lawyers before moving to the bench or have relatives, including sons and daughters, that do.

Suit filed by a judge

Illinois Supreme Court Justice Philip J. Rarick filed an asbestos claim of his own in 1986, while he was chief circuit judge in Madison County. The suit, filed in St. Clair County Circuit Court by the Texas firm of Baron and Budd, alleged that the judge contracted asbestosis while working part time at Granite City Steel between 1958 and 1962 to help pay for college.
Rarick's award was $30,182 after attorney's fees and other expenses, said Supreme Court spokesman Joe Tybor.
"The asbestos suit was filed in St. Clair County to avoid any appearance of a conflict," according to a statement from Tybor.
Court officials say Rarick did not handle asbestos cases while a Madison County judge. Tybor's statement said Rarick recused himself from asbestos cases while serving as a 5th District appellate judge.
Tybor's statement said Rarick's illness has not progressed. He is retiring from the court this year.
Charges of manipulation

Critics of the Madison County courts say plaintiff lawyers were able to manipulate Byron to their own purposes. Others, including some defense attorneys, suggested he believed he was doing good by giving asbestos victims their day in court before they die.
Morris Chapman, 85, the patriarch of Madison County's plaintiff attorneys, sees both sides.
"Nick Byron is a Democratic and liberal judge who accommodated these asbestos suits because he thought he was helping the little guy," Chapman said. "But really, he's just getting led around by Bono, so that his inclination to assist the public without gain for himself, well, that got out of hand when he was convinced to let so many national cases in here that didn't belong in Madison County. And now it's caused problems for every lawyer in the county."
Those who take the less charitable view of Byron refer to the political donations he gets from lawyers. Since Jan. 1, 2002, Byron has received $76,150 in political donations, most of it from plaintiff lawyers.
Are judges fearful?

Some involved in the court system say it is fear, not money, that is the biggest influence on Madison County judges.
The hammer, they say, is a watershed event almost 25 years ago known then and now as "the vendetta."
In 1980, a small group of prominent plaintiff attorneys proved they could oust judges they did not like. They did that to circuit Judges Victor Mosele and John DeLaurenti, both now deceased.
Mosele got crossways with a plaintiff attorney after that lawyer's firm lost three personal-injury trials in Mosele's courtroom over 10 weeks in 1978.
DeLaurenti, who died last month, said in an interview in April that he had been targeted because he had been Mosele's ally and because he had not been "terribly cooperative with the power group of trial lawyers."
The lawyers, including Tom Lakin and Chapman, pooled more than $30,000 to finance a last-minute advertising blitz that cast Mosele and DeLaurenti as weak, ineffective judges whose rulings endangered the public.
One of the strongest ads accused Mosele of freeing armed robbers, sex offenders and a murderer.
The ad read:
"Defeat Victor Mosele on his Record.
Charge: Indecent Liberties with a Child. Punishment: 2 years' probation.
Charge: Deviate Sexual Assault. Punishment: 1 year weekends in jail.
Charge: Murder and Manslaughter. Punishment: 30 months' probation plus $2,000 fine."
Court records showed that in most cases where Mosele was cast as lenient, probation had been granted after charges were reduced by the state's attorney or through plea bargaining.
Judges need 60 percent of the vote every six years at retention. Mosele got 54 percent, DeLaurenti got 59 percent. (DeLaurenti won his job back in an election in 1982.)
Several court insiders say "the vendetta" sent a message that still resonates: If judges anger the wealthy lawyers, it can cost the judges a job that pays $149,638 a year and up to 85 percent of that in retirement, leaving the judges with the embarrassment that goes with being thrown off the bench.
"The major plaintiffs lawyers have an inordinate amount of money," said one source who did not want to be identified. "And if judges don't show some helpful attitude on cases, then come retention time, they are screwed.
"This is the guts of this thing."
A second legal source described "the vendetta" as an ongoing menace: "What (the trial lawyers) did was tell every judge in Madison County that they could be beat, and the judges have been scared ever since. They have never recovered from it."
Undue influence?

Bono was widely rumored to be planning a move to oust the chief judge, Edward C. Ferguson, in his retention election in 2002.
Bono declined to comment on the matter.
In an interview, Ferguson said that he had heard that Bono was preparing to run negative ads against him.
Ferguson refused to comment on a possible motive. He hinted, though, that he had a counterattack prepared.
"There was a way I would have had to defend myself, but it would not have been pleasant for anybody," Ferguson said.
No ads ever ran, and Ferguson won retention.
Ferguson said he had decided before the election that it would be his last. He added, however, that if he had been inclined to seek another term, potential menace from Bono's camp would have made him think twice.
"I had active opposition from that person (Bono), even though I don't handle asbestos cases or civil cases," said Ferguson, sitting at his courthouse desk behind a replica of President Harry Truman's "The Buck Stops Here" plaque.
Trial lawyers don't exert undue influence over the court, Ferguson said. Of the money they contribute to judicial campaigns, Ferguson said, lawyers give only because they want cases administered fairly by experienced judges.
"Whether (plaintiff lawyers) think they're getting something extra in return, I can't say," Ferguson said.

Reporter Paul Hampel
E-mail: paulh@post-dispatch.com
Phone: 618-659-3639