Asbestos Litigation
August 16, 2023 11:38 AM Subscribe
My company is being pulled into an asbestos/mesothelioma lawsuit. The plaintiff and defense counsels, and the case is all taking place in Mason County, IL, which happens to hear more than a third of all asbestos/mesothelioma lawsuits in the country. None of us, plaintiffs or defense, live in Illinois, nor did any of this take place there. The way things are going I'm starting to feel like we're being pulled into a lawsuit grift mill.
We were referred to the Mason County attorneys by our local attorney, who we trust pretty well. Working with these new attorneys, we've demonstrated that there is no way possible we were connected with the products cited in the case. My company was not in the wholesale business at the time the products were sold; when we did enter the wholesale market, we didn't do any business in that state until well at least a decade after the contaminated products were manufactured and sold.
The attorneys don't seem to be interested in hearing any of this. We can't produce records to prove that we weren't in the wholesale business at the time and that we weren't conducting business in that state (because, how can you produce records of something you weren't doing?). Now they're talking about depositions and hiring industrial hygiene experts to testify at trial. We were one of two companies named in the suit, the other being our competitor who operates in the same state as the plaintiff.
We're pretty sure we should be dropped from this suit. But now I'm starting to think there is no incentive for our Mason County lawyers to do so. I imagine all these specialist civil suit lawyers, judges and expert witnesses all work closely together in Mason County. Our lawyer mentioned the judge hearing our case used to work at the same firm. I think he meant that to be reassuring, but to me it points to all sides knowing how to run the clock just right. I haven't yet heard back from our local lawyer on what he thinks of all this.
I feel terrible for people affected by asbestos and mesothelioma, but this really feels like a spaghetti-at-the-wall tactic by predatory lawyers. (The suit even names manufacturers that weren't in business at the time the products were made.) Am I being run through some billboard lawyer litigation racket? Are there other examples of this? YANML (dear god I have enough already) and I am not seeking legal advice, but what's the best way for navigating something like this?
We were referred to the Mason County attorneys by our local attorney, who we trust pretty well. Working with these new attorneys, we've demonstrated that there is no way possible we were connected with the products cited in the case. My company was not in the wholesale business at the time the products were sold; when we did enter the wholesale market, we didn't do any business in that state until well at least a decade after the contaminated products were manufactured and sold.
The attorneys don't seem to be interested in hearing any of this. We can't produce records to prove that we weren't in the wholesale business at the time and that we weren't conducting business in that state (because, how can you produce records of something you weren't doing?). Now they're talking about depositions and hiring industrial hygiene experts to testify at trial. We were one of two companies named in the suit, the other being our competitor who operates in the same state as the plaintiff.
We're pretty sure we should be dropped from this suit. But now I'm starting to think there is no incentive for our Mason County lawyers to do so. I imagine all these specialist civil suit lawyers, judges and expert witnesses all work closely together in Mason County. Our lawyer mentioned the judge hearing our case used to work at the same firm. I think he meant that to be reassuring, but to me it points to all sides knowing how to run the clock just right. I haven't yet heard back from our local lawyer on what he thinks of all this.
I feel terrible for people affected by asbestos and mesothelioma, but this really feels like a spaghetti-at-the-wall tactic by predatory lawyers. (The suit even names manufacturers that weren't in business at the time the products were made.) Am I being run through some billboard lawyer litigation racket? Are there other examples of this? YANML (dear god I have enough already) and I am not seeking legal advice, but what's the best way for navigating something like this?
is your question whether your lawyers might be making this take longer than it should to get dismissed?
I mean, possibly.
But the more likely scenario is simply that discovery is still ongoing. Discovery is the phase where everyone gets to ask to see the factual evidence that the other side has, and has to produce what is asked for. That's where you get to produce your sales reports that show you never did business in the state in question, etc. (And those reports will be probed, authenticated with depositions etc as part of discovery.) At the end of discovery, parties have the opportunity to make summary judgment motions, which are "based on the facts that everyone agrees are true, this case should be dismissed" motions. That date is set in advance. Maybe you just aren't there yet.
posted by fingersandtoes at 12:13 PM on August 16, 2023
I mean, possibly.
But the more likely scenario is simply that discovery is still ongoing. Discovery is the phase where everyone gets to ask to see the factual evidence that the other side has, and has to produce what is asked for. That's where you get to produce your sales reports that show you never did business in the state in question, etc. (And those reports will be probed, authenticated with depositions etc as part of discovery.) At the end of discovery, parties have the opportunity to make summary judgment motions, which are "based on the facts that everyone agrees are true, this case should be dismissed" motions. That date is set in advance. Maybe you just aren't there yet.
posted by fingersandtoes at 12:13 PM on August 16, 2023
Do you mean Madison County IL or is someone else stealing our Asbestos lawsuits? I'd trust your local lawyer. Over-naming on these suits is rampant. Your local defense lawyers should be well versed in dealing with it.
posted by cmm at 12:41 PM on August 16, 2023 [1 favorite]
posted by cmm at 12:41 PM on August 16, 2023 [1 favorite]
Now they're talking about depositions
Yes, they should be. How else would you let the court know that you weren't in the business at the time in question? The judge doesn't just magically know that, and even if he did, you'd probably want a little more documentation. Depositions are one of the tools available to document that. You can't produce records of what you weren't doing, but you can produce records of what you were doing and point out that those records don't include what the plaintiff says you were. Remember, the burden of proof in a civil trial is on the plaintiff. *They're* the ones who have to present evidence that their claim is based in fact. But again, the court has to hear what each side believes is fact before it can rule on what is actually true.
That being said, yes, it's absolutely a legal strategy to sue a boatload of people in the hopes that some of the defendants would rather just agree to a settlement than go through the process of a trial. Remember, in our legal system, the only rights you have are the rights you're willing to pay to defend in court.
I'm starting to think there is no incentive for our Mason County lawyers to do so
You mean aside from the threat of a malpractice claim? If it turns out that your attorneys are actually colluding with the opposing party, that's something the state bar association would be really interested in knowing. All that being said, there's nothing special about this one county. Any attorney who has passed the bar in the state of Illinois could work on this case. If you don't like your local attorneys, you can replace them with attorneys from Chicago or East St. Louis or Cairo or wherever. But then you'd get billed for travel costs as well.
posted by kevinbelt at 1:58 PM on August 16, 2023
Yes, they should be. How else would you let the court know that you weren't in the business at the time in question? The judge doesn't just magically know that, and even if he did, you'd probably want a little more documentation. Depositions are one of the tools available to document that. You can't produce records of what you weren't doing, but you can produce records of what you were doing and point out that those records don't include what the plaintiff says you were. Remember, the burden of proof in a civil trial is on the plaintiff. *They're* the ones who have to present evidence that their claim is based in fact. But again, the court has to hear what each side believes is fact before it can rule on what is actually true.
That being said, yes, it's absolutely a legal strategy to sue a boatload of people in the hopes that some of the defendants would rather just agree to a settlement than go through the process of a trial. Remember, in our legal system, the only rights you have are the rights you're willing to pay to defend in court.
I'm starting to think there is no incentive for our Mason County lawyers to do so
You mean aside from the threat of a malpractice claim? If it turns out that your attorneys are actually colluding with the opposing party, that's something the state bar association would be really interested in knowing. All that being said, there's nothing special about this one county. Any attorney who has passed the bar in the state of Illinois could work on this case. If you don't like your local attorneys, you can replace them with attorneys from Chicago or East St. Louis or Cairo or wherever. But then you'd get billed for travel costs as well.
posted by kevinbelt at 1:58 PM on August 16, 2023
our local attorney, who we trust pretty well.
And yet you're second-guessing them with this AskMe question? Assuming your first statement was correct, keep your trusted local attorney in the loop and rely on them to explain what's going on.
posted by JimN2TAW at 5:19 PM on August 16, 2023
And yet you're second-guessing them with this AskMe question? Assuming your first statement was correct, keep your trusted local attorney in the loop and rely on them to explain what's going on.
posted by JimN2TAW at 5:19 PM on August 16, 2023
Overnaming is normal in any civil suit. When I was in the bus charter business, one of my friends (with his own company, one bus owner-operator) was sued by a woman that was NEVER on his bus, for alleged injuries! And the circumstances are crazy. This woman left the bus, walked a couple feet, lost strength in her knee, in front of the casino, took a knee, and ended up cracking her patella, and she wants to sue the bus company a couple weeks later (and a trip to the ER), except she can't remember the company, so somehow her lawyer just randomly picked a bus company that went to that casino to sue, because the lawyer sent an investigator, and the investigator simply came to the casino, and wrote down the name of the first bus he saw, not understanding dozen companies serve that casino within 150 miles! It took my friend's insurance's lawyer over a year to get the suit dismissed. My friend's insurance rate went up so much he got out of the bus business altogether.
posted by kschang at 6:29 PM on August 16, 2023 [2 favorites]
posted by kschang at 6:29 PM on August 16, 2023 [2 favorites]
Best answer: I used to work defense on cases not unlike yours, in places not unlike Madison County, IL. I think you're right that it's a shakedown; in my experience, the defense team we were genuinely trying to represent and protect our clients. We did have incentives to get cases resolved as quickly as possible. Positive impact to our personal workload and/or stress levels. Current and future clients like effective counsel. Winning is nice, and so is being right. Ideally, not paying money to the firm that filed a thousand-paragraph complaint that we had to answer point by point, which we maybe take more personally than we should because that was hours of our life they wasted there. And so on.
IANAL, TINLA. Good luck. My one suggestion would be to have the local firm keep your usual attorney in the loop (cc'd on everything, or maybe included as counsel of record) to monitor.
posted by mersen at 6:38 PM on August 16, 2023
IANAL, TINLA. Good luck. My one suggestion would be to have the local firm keep your usual attorney in the loop (cc'd on everything, or maybe included as counsel of record) to monitor.
posted by mersen at 6:38 PM on August 16, 2023
Best answer: Disclaimer: I Am A Former Asbestos Defense Lawyer/IANYADL/TINLA
So, what you're experiencing is part of how a granola girl like me practiced defense in this area for several years with her soul perfectly in-tact.
Madison County is the model of what's called a "magnet jurisdiction," and it has profited enormously from creating that status. Plaintiffs' attorneys have also pursued (IMHO) increasingly tertiary and often completely uninvolved defendants as the companies most responsible for the majority of asbestosis, mesothelioma, and other asbestos-related injuries have gone bankrupt.
It is true that wherever you're sued in the US, as many noted above, you can't get dropped from the suit based on factual (as opposed to strictly legal) circumstances until a factual record is developed through discovery. But in other jurisdictions and contexts, it may be much easier for defense counsel to have a discussion with plaintiff's counsel about frontloading the discovery establishing your company's non-involvement and setting up an early summary judgment motion or other measure to seek a relatively early exit. Other places also put teeth behind the expectation that plaintiffs' counsel have done a modicum of pre-suit investigation into their basis for suing a particular defendant. Unfortunately, asbestos litigation in Madison County is so high-volume and entrenched that it is well-nigh impossible that the court will focus that much attention on the particularities of any one case until it's the eve of trial.
You should ask them directly, but I suspect that your lawyers are likely talking about experts because they know they must to defend your company, not because they want to rack up fees or otherwise feed the beast -- they have to be prepared to defend on all fronts if they cannot secure summary judgment in advance of the expert discovery deadlines, which the schedule applicable to your case may render impossible.
I strongly recommend that you highlight for your Madison County attorneys that the company is entirely new to asbestos claims and feeling adrift. Ask them to give you an overview of the process and recommendations for "creative" avenues for pursuing a fast-as-possible dismissal, plus a plan to minimize expense and energy if that doesn't work. You can assess based on that if you want to continue with them or find other local counsel (which you do need to have involved at some level in another state). Defense attorneys in this area are often working long hours for not-great rates and with not a ton of variety/intellectual excitement compared to other practice areas. You shouldn't *have* to flag this, but reminding them that this is your one and only case even if it's their 263rd active matter may go a long way.
Also, depending on how trial schedules are right now: expect a lot of inactive waiting time. It stinks when you want to get out and never think about Madison County again, but the upside is that you will not have the level of stress and activity that goes on at the outset throughout.
Good luck. Please feel free to message me if helpful (although I am at a long and happy remove from the litigation at this point).
posted by LadyInWaiting at 7:15 PM on August 16, 2023 [12 favorites]
So, what you're experiencing is part of how a granola girl like me practiced defense in this area for several years with her soul perfectly in-tact.
Madison County is the model of what's called a "magnet jurisdiction," and it has profited enormously from creating that status. Plaintiffs' attorneys have also pursued (IMHO) increasingly tertiary and often completely uninvolved defendants as the companies most responsible for the majority of asbestosis, mesothelioma, and other asbestos-related injuries have gone bankrupt.
It is true that wherever you're sued in the US, as many noted above, you can't get dropped from the suit based on factual (as opposed to strictly legal) circumstances until a factual record is developed through discovery. But in other jurisdictions and contexts, it may be much easier for defense counsel to have a discussion with plaintiff's counsel about frontloading the discovery establishing your company's non-involvement and setting up an early summary judgment motion or other measure to seek a relatively early exit. Other places also put teeth behind the expectation that plaintiffs' counsel have done a modicum of pre-suit investigation into their basis for suing a particular defendant. Unfortunately, asbestos litigation in Madison County is so high-volume and entrenched that it is well-nigh impossible that the court will focus that much attention on the particularities of any one case until it's the eve of trial.
You should ask them directly, but I suspect that your lawyers are likely talking about experts because they know they must to defend your company, not because they want to rack up fees or otherwise feed the beast -- they have to be prepared to defend on all fronts if they cannot secure summary judgment in advance of the expert discovery deadlines, which the schedule applicable to your case may render impossible.
I strongly recommend that you highlight for your Madison County attorneys that the company is entirely new to asbestos claims and feeling adrift. Ask them to give you an overview of the process and recommendations for "creative" avenues for pursuing a fast-as-possible dismissal, plus a plan to minimize expense and energy if that doesn't work. You can assess based on that if you want to continue with them or find other local counsel (which you do need to have involved at some level in another state). Defense attorneys in this area are often working long hours for not-great rates and with not a ton of variety/intellectual excitement compared to other practice areas. You shouldn't *have* to flag this, but reminding them that this is your one and only case even if it's their 263rd active matter may go a long way.
Also, depending on how trial schedules are right now: expect a lot of inactive waiting time. It stinks when you want to get out and never think about Madison County again, but the upside is that you will not have the level of stress and activity that goes on at the outset throughout.
Good luck. Please feel free to message me if helpful (although I am at a long and happy remove from the litigation at this point).
posted by LadyInWaiting at 7:15 PM on August 16, 2023 [12 favorites]
Best answer: The best answer is to retain expert asbestos defense attorneys where your company is located. They will figure out how to retain Illinois-licensed attorneys to allow them to appear.
(That should have been your company's attorney's recommendation.)
Second, this is no doubt happening in Madison County, not Mason County.
Third, see the information here: https://asbestoscasetracker.com/?s=madison+county
(That web site has 0 hits for Mason County, BTW.)
Make sure your insurance company is notified, right away. Even so, this will be costly. Buckle up.
posted by yclipse at 4:03 AM on August 17, 2023
(That should have been your company's attorney's recommendation.)
Second, this is no doubt happening in Madison County, not Mason County.
Third, see the information here: https://asbestoscasetracker.com/?s=madison+county
(That web site has 0 hits for Mason County, BTW.)
Make sure your insurance company is notified, right away. Even so, this will be costly. Buckle up.
posted by yclipse at 4:03 AM on August 17, 2023
Asbestos Casetracker search results for Madison County
posted by virago at 4:58 AM on August 17, 2023
posted by virago at 4:58 AM on August 17, 2023
Response by poster: Thanks for all the great responses, this is super helpful! This whole thing blew up while I was out of the country and without reliable mobile coverage, so I probably missed a few of the calls where the basics were explained. After running our family business for more than a dozen years now, the closest I've been to a lawsuit is jury duty. I had a chance to speak with my local lawyer last night and got a bit better perspective. We're currently past discovery and my company was specifically named in a deposition, likely because we are a prominent name in a very niche industry. So we are preparing our depositions (and affidavits?) to demonstrate how improbable it is that we were involved during the timeframe in question.
I also have a bit more confidence in my Madison County (not Mason!) attorneys. My local lawyer explained why he chose this firm and how having people there is important (like many of the comments here suggest as well). He also pointed out that it's not really in their interest to drag things out, because they too probably have a backlog of cases they need to get through, but they also need to be thorough, which includes things like expert witnesses (even if the idea sounds ridiculous to me).
Perhaps I should've framed this question as what questions should I ask my lawyers. I'm going to try to get them on the phone again to walk through things a little more thoroughly so I can grock everything. I'm also wondering whether I should put together a company timeline during the period in question (early to mid 70s) to see if that's something that would be helpful.
posted by slogger at 8:09 AM on August 17, 2023 [1 favorite]
I also have a bit more confidence in my Madison County (not Mason!) attorneys. My local lawyer explained why he chose this firm and how having people there is important (like many of the comments here suggest as well). He also pointed out that it's not really in their interest to drag things out, because they too probably have a backlog of cases they need to get through, but they also need to be thorough, which includes things like expert witnesses (even if the idea sounds ridiculous to me).
Perhaps I should've framed this question as what questions should I ask my lawyers. I'm going to try to get them on the phone again to walk through things a little more thoroughly so I can grock everything. I'm also wondering whether I should put together a company timeline during the period in question (early to mid 70s) to see if that's something that would be helpful.
posted by slogger at 8:09 AM on August 17, 2023 [1 favorite]
Best answer: someone mentioned this already but usually asbestos llitigation defense is handled by an insurance defense firm. That is, when you are sued for something like this, you report this suit to your own business insurance; they have a law firm on retainer that handles it for you, it is part of what you pay business insurance for. It is routine. I'm not sure if you already did that.
posted by fingersandtoes at 8:30 AM on August 17, 2023
posted by fingersandtoes at 8:30 AM on August 17, 2023
ditto @fingersandtoes, this is EXACTLY why you bought business liability insurance.
posted by kschang at 4:30 PM on August 17, 2023
posted by kschang at 4:30 PM on August 17, 2023
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If you haven't demonstrated it to the satisfaction of the judge on motion practice (or the jury at trial), then you haven't demonstrated it for the purposes of the law. It sounds like you are raising factual issues (i.e, their complaint says you sold xyz product in the appropriate time range or otherwise plausibly alleges that your company was somehow liable) which generally can only be resolved at or later than summary judgment. Discovery (gathering information from the other side) precedes any motion for summary judgment. If there is discovery, then there will almost certainly be depositions. So that's where you are.
Your Mason County lawyers should be able to explain this process to you. Have you actually asked them to sit down with you and set out how this will go, and the point at which you can hope to exit? You shouldn't need to ask, mind you, but if you're not currently satisfied, they should be able to tell you.
posted by praemunire at 11:52 AM on August 16, 2023 [6 favorites]