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Madison County : Where asbestos rules
By Paul Hampel
Copyright 2004, St. Louis Post-Dispatch
09/18/2004
Madison County 's king of asbestos litigation pushed his way through the crowded courtroom and propped an elbow on the judge's bench.
Randall Bono had arrived for the hearing in wrinkled khakis, a baggy sweater and hiking shoes, in contrast to the pressed suits of the 80 other lawyers who had gathered before Judge Nicholas G. Byron. They were there to engage in the nitty-gritty of asbestos litigation: motions to change lawyers, to order depositions, to set trial dates.
This biweekly hearing is a key element of a system in Madison County that, over the past 20 years, has quietly transferred billions of dollars from businesses and insurance companies to asbestos plaintiffs and their lawyers.
Asbestos-related claims worth at least $1 billion when resolved were filed last year in Madison County, according to estimates based on interviews with plaintiff and defense attorneys, insurance companies and national experts on asbestos litigation.
If the system were a corporation and the $1 billion were revenue, the company would rank among the top 25 in St. Louis, just ahead of the Argosy Gaming Co.
How has Madison County, population 261,689, become a national center for lucrative asbestos litigation? The Post-Dispatch examined the system and found:
* A one-party court system dominated by Democratic judges whose campaigns are financed by contributions from Democratic plaintiff lawyers.
* A county where judges are often related to — or at the least used to work beside — the plaintiff lawyers appearing before them.
* A history of anti-corporate sentiment that produces sympathetic — and generous — juries.
* A history of intimidation that makes some judges wary of crossing the powerful plaintiff bar.
No one works this system better than Randall Bono — asbestos plaintiff lawyer, former Madison County judge, writer of $100,000 campaign checks, powerful Democrat.
Bono, 52, was in on the beginning of the asbestos litigation boom in Madison County in the mid-1980s. He now rides its crest.
He and SimmonsCooper, of East Alton, have earned hundreds of millions of dollars for their clients, and for themselves, since the firm was formed in 2000. It has risen to the top of the legal profession in filing suits over mesothelioma, a deadly form of cancer caused only by exposure to asbestos.
At the hearing last December, Bono's demeanor, like his attire, reflected his comfort level in Byron's courtroom. With elbow on Byron's bench, Bono rested his cheek in the palm of his hand and jawed with the defense attorneys.
"They've already blown their deadlines!" he snapped. Later, he said with an edge: "Judge, all of those motions we oppose."
Bono found an outlet for his dry wit when Byron paused to commend a defense attorney on being made partner in her firm.
Bono chimed in with mock solemnity: "Judge, let me point out that asbestos litigation has made more partners in defense firms than any other type."
The lawyers laughed.
Later, his business done, Bono smiled and scanned the room. "Anybody else here want a piece of me?" he deadpanned.
Big settlements
The rise of Bono's influence and wealth has paralleled the rise of asbestos litigation. While class-action settlements and complaints about medical malpractice insurance have dominated court-related news here and around the nation, asbestos litigation is the big-ticket item in Madison County.
Class-action settlements are often touted at dollar amounts that bear only slight resemblance to what is eventually paid out, and big medical malpractice awards, though well-publicized, are relatively rare.
But asbestos pays off huge in Madison County — regularly returning settlements of $2 million to $3 million for asbestos-caused cancer and settlements of five and six figures for asbestos-related breathing problems. And it has been paying off regularly, month after month, year after year.
A RAND Corp. study estimates that 730,000 asbestos suits have been filed and $70 billion has been transferred from defendant corporations and insurance companies to victims and their lawyers since the litigation began in the 1970s.
Madison County's share of that $70 billion can be only estimated, because settlements are usually secret and the few cases that do result in jury verdicts are often resolved for a fraction of the verdict.
Even conservative estimates peg the payouts in the multibillion-dollar range, making the county a recognized center for such litigation, along with courts in Texas, Mississippi, Ohio, West Virginia and New York.
Not all asbestos cases are equal. The most lucrative, by far, are suits filed by victims of mesothelioma.
John Simmons, a partner at Simmons-Cooper, said recently that about 1,500 mesothelioma suits were filed annually in the United States. Last year, Madison County had 457 such suits. Simmons-Cooper filed 375 of them.
In an interview, Bono provided some scale to his firm's practice. Since 2000, Bono said, he has settled about 600 mesothelioma cases for "between $2 million and $3 million" each.
That is a minimum of $1.2 billion in settlements in that period. And defense attorneys and insurance executives contend that Bono's numbers are low; they suggest that the Simmons firm collects in the neighborhood of $4 million for each claim.
Plaintiff firms commonly take one-third to 40 percent of the award, plus expenses. The Rand study found nationally that of all the money paid out for asbestos injury, less than half goes to the victims. The rest, the study said, goes to "transaction" costs: fees for lawyers on both sides, expert witnesses and other litigation costs.
Anti-corporate history
Why is Madison County such a magnet for asbestos litigation?
For the same reason it draws all types of civil suits.
Madison County has been famous for decades as a good place to sue corporations. Plaintiff lawyers have brought their claims to Madison County because the county's juries have awarded damages to plaintiffs at far higher amounts than juries in, say, Clayton or Peoria.
If it seemed that those jurors held a grudge against big businesses, one longtime county court veteran suggested that has been precisely the case. He is Morris B. Chapman, the dean of Madison County trial lawyers.
The white-haired Chapman is a sharp, practicing lawyer at 85. He made his fortune winning claims ranging from personal injury suits to legal malpractice cases over the last 62 years.
During a recent tour of his firm's office in Granite City, Chapman pointed out that the building had once been owned by M.E. Kirkpatrick, who served four intermittent terms as mayor of the city from 1911 to 1942. Granite City's subsidized housing development, Kirkpatrick Homes, is named for him.
"And he was an outright Socialist," Chapman said. "We had a lot of those here in the early part of the last century."
Most of the area's industrial workers at the time were immigrants from Eastern Europe. Their leftist politics originated in the old country and were carried on here in pro-union groups such as the Industrial Workers of the World — the Wobblies — and the Socialist Workers Party. They fought for improved working conditions and higher wages against such corporate titans as the Niedringhaus family, owners of the city's massive Graniteware plant.
Chapman said, "The only difference between (the workers) and Communists was that they didn't actively advocate the overthrow of the government."
He added, "A jury of those guys would murder corporate defendants."
The radical politics softened over succeeding generations.
"Politically, it has kind of petered out into pseudo-liberalism, but it's still an anti-corporate community," Chapman said. "That still affects the juries."
Add to that mixture Illinois' system of electing judges. Unlike Missouri's nonpartisan plan, in which urban judges are appointed by the governor, circuit judges in Illinois must run for election, and once elected, run for retention every six years.
A Post-Dispatch examination of campaign contributions found that the campaigns of Madison County judges are financed almost exclusively by lawyers, particularly the plaintiff bar.
Money isn't the only potential influence on the judges.
In 1980, several personal-injury lawyers — unhappy with two judges whose rulings displeased them — masterminded a campaign that ended in their ouster.
Madison County circuit judges have not forgotten.
Inject asbestos litigation into this milieu —the history, the politics, the aggressiveness of the plaintiff bar — and what comes out are jury verdicts like a then-U.S. record $34 million in 2000, and a $250 million verdict last year, the largest asbestos award ever to a single plaintiff in the country. The plaintiff attorney in both cases was Bono.
Art of the haggle
Defendants say huge verdicts are the reason so few of them risk a trial. Once a trial date is set at the Friday morning docket calls, the attorneys for both sides begin the dance that almost always ends in settlement.
In mesothelioma cases — the most deadly ailment and thus the most expensive — the major player is Bono. Most of the action takes place not in the courtroom but through a haze of tobacco smoke in Bono's corner suite at SimmonsCooper, an unimposing building at 700 Berkshire Boulevard, East Alton.
Over the years, the value of a Madison County asbestos claim has become fairly standard. Still, there is room for negotiation, particularly because there are multiple defendants.
One afternoon last year, Bono and the firm's associates held forth with a reporter present.
The atmosphere was loose, punctuated with off-color jokes, most of them cracked by Bono. In this locker-room environment, he's the likable team captain.
Bono wore a slight grin as he packed Borkum Riff tobacco into his pipe, conferred with a half-dozen Simmons attorneys who had worked on claims, and waited on calls from defense attorneys.
His cell phone chirped. He answered it with a hearty, "Hello, sweetie!"
The caller was a female Cleveland attorney representing a materials manufacturer. Its roofing product was alleged to have sickened one of Bono's clients.
"Yes, I am busy, but you are my top priority right now, sweetie," Bono said, smoke curling from his lips.
He squinted over reading glasses at a flip chart with information on 29 clients dying of mesothelioma.
"I'm sorry, but I need a lot of money on this case," Bono said.
"Umm-hmmm. I sympathize. But what's the advantage of giving you a discount if you don't pay it quick? I have people dying while you wait to pay."
Bono hung up. He smiled broadly. The call had gone well.
But he complained that a trial date was just three days away and he still had not heard from some of the 100 or so other defendants. The list of defendants rarely varies. It's a who's who of corporate America that includes Exxon Mobil Corp., Dow Chemical Co., Bridgestone/Firestone, Lockheed-Martin Corp., U.S. Steel, the Big Three automakers, and other financially solvent companies that used asbestos.
"Defense attorneys always treat litigation as a cow, and they want to milk it as long as they can," Bono said. "They always wait till the last minute to settle."
Another call. Another offer. Another scoop of tobacco. The smoke lingers around a framed photo of Bono with a fellow trial lawyer, John Edwards, the Democrats' candidate for vice president.
"Bob, all you guys wait until the last minute and drive me nuts," Bono said into the phone as he rifled through paperwork. "Let me look at my notes so I can tell you where you're wrong and bring you to Jesus."
Most of the defendants are paying off multiple cases. In cases being settled, Bono decides who pays and which defendants get let off the hook, a sore point with defense attorneys who contend that a judge should be making those decisions.
Under such a scenario, it's easy to understand why defendants are loath to get on Bono's bad side and almost always ask to remain anonymous in newspaper stories about asbestos cases in Madison County.
Amid the haggling, a defense attorney, Joseph J. O'Hara Jr. of New York, strolled into Bono's office to bargain in person. O'Hara represents Owens-Illinois, one of the nation's leading glass and plastics manufacturers and a frequent target in asbestos claims.
The company sold asbestos-containing products in the 1940s and 1950s.
O'Hara listened in as Bono negotiated.
"You got 2.5 (million dollars) in August coming due," Bono told a caller. "Another 2.125 in October. Those are the big payments.
"Why don't you make it eight (million dollars), pay me half on Dec. 1 and the other half on March 1, three months apart?"
O'Hara, smiling and shaking his head, whispered to a reporter, "How'd you like to play banker, like Randy does all day? Just sit around and wait for people to call you and offer you millions of dollars?"
Bono got off the line. He and O'Hara left the office to negotiate in private next door.
Their rising voices pierced the thin walls.
"Randy, we've done it your way the last four times. They don't want to do it your way this time."
"Joe, I've got to get this much money. That's not debatable."
Within minutes, the pair returned. O'Hara had settled.
The exchange had been tense but apparently was quickly forgotten. The two lawyers took the rest of the afternoon off to play golf together.
By the following Monday, Bono would settle all 29 cases on the big board in his office.
Bono said he could not calculate how many hours the firm's lawyers devote to each suit. "But we have 14 or 15 lawyers working full time on those cases, along with paralegals and investigators," he said.
Built for speed
In Chapman's view, working up mesothelioma suits does not constitute practicing law.
"When I started practicing law, I thought I had a public duty to take a case and represent the client first, and money was secondary. That's been lost," Chapman said.
"What I think about Bono and the Simmons people, and also the Goldenberg firm (the Edwardsville firm of Goldenberg, Miller, Heller & Antognoli) — those people are not lawyers, they're just people who are posing as lawyers. They're just business people, corporate types.
"They're taking the claims in and processing them in bulk, and making a ton of money and all for doing paperwork, if I may use the word.
"I'm outraged about that because it denigrates my profession, the law profession."
Bono, as well as Randy Gori, lead asbestos attorney for the Goldenberg firm, defend their practices. Both say they are prepared to go to trial at any time, should defendants opt not to settle out of court.
The SimmonsCooper firm's efficiency at handling cases is matched by the county court's streamlined asbestos docket, which disposes of hundreds of claims each year.
Madison County's chief circuit judge, Edward C. Ferguson, described a system built for speed.
"Why do asbestos cases come here?" he said. "A lot of it is the machinery in place here. We have the expertise to handle these, to do them in the court time necessary."
Ferguson said class-action cases, not asbestos, were the real burden for his court. Business groups call Madison County a "hellhole" for corporate defendants.
"We can handle the asbestos," Ferguson said. "It's the class actions we need to be more astute about certifying.
"We have no more judicial manpower, no more clerical manpower, to handle those class-action cases."
Asked if plaintiff firms actually perform enough work on asbestos claims to justify their paydays, Ferguson said he is not concerned.
"I'm just worried about coming to work and getting a fair wage for what I do," said Ferguson, 60, whose salary as a circuit court judge is $149,638 a year. "A long time ago, I quit worrying about how much money lawyers and baseball players and actors make. You'll eat yourself up worrying about that."
Good deeds
Some in the business community react more with revulsion than awe to the size of asbestos verdicts. Seventy corporations have declared bankruptcy after being flooded with asbestos claims.
Lisa Rickard, president of the U.S. Chamber for Legal Reform, said that what has been good for the SimmonsCooper firm and its clients has been bad for Madison County and the rest of the nation.
"Has the more than a billion dollars in settlements Bono has obtained helped the people of Madison County?" Rickard said recently. "Has it built better schools or improved the standard of living. No, just the opposite.
"Businesses which could bring economic development to the county stay as far away as possible, and for good reason."
In the last two years, however, members of the SimmonsCooper firm have contributed substantial sums to several county institutions. Firm partners Simmons and Jeff Cooper together donated $1 million in April to renovate Southern Illinois University Edwardsville's baseball field.
Simmons, who briefly sought the Democratic nomination for the U.S. Senate last year, is regarded as a key figure in the rise of Alton Steel Co. from the ashes of the bankrupt Laclede Steel. He later gave $500,000 in Alton Steel stock to eight Madison County churches.
And he has given $1 million toward the construction of a YMCA in Edwardsville and $100,000 to help save the SIUE wrestling program.
For his part, Bono said he donates to numerous causes but prefers to do so "anonymously or quietly." He would not detail the amounts involved.
"Good deeds are their own reward," he said.
Bono defended his firm's contingency fees.
He calls the money "a nest egg" that enables trial lawyers to take on corporate Goliaths.
"These cases are an investment," he said. "We do substantial work and we take substantial risk so that an $18,000-a-year garbage collector has the same chance in court as the largest corporation in the world."
Defense firms
Plaintiff lawyers and their clients are not the only ones capitalizing on asbestos suits in Madison County.
More than 30 firms based in St. Louis and the Metro East area represent defendants.
Together, plaintiff and defense firms here have about 150 attorneys devoted to asbestos litigation, legal sources say. Hundreds of support staff, from clerks to paralegals, are involved.
One defense lawyer whose client is frequently named in asbestos suits said that mesothelioma claims have been the source of significant revenue for lawyers representing accused corporations.
The lawyer, who asked to remain anonymous, named the Edwardsville law firm of Burroughs, Hepler, Broom, MacDonald, Hebrank & True as the local leader in defending against asbestos claims.
Burroughs, Hepler did not return phone calls to discuss how asbestos cases had affected its business.
The firm has almost doubled from 47 attorneys three years ago to more than 80 today, a growth that has paralleled the rise since 2000 of mesothelioma claims filed in the county.
Another firm that has grown is Peoria-based Heyl, Royster, Voelker & Allen. The firm's Edwardsville office has more than doubled in recent years to about 25 attorneys.
"Asbestos has certainly contributed to our growth," said Robert "Barney" Shultz, managing partner at the Edwardsville office. "But we've also had growth in different areas of litigation."
An attorney for a large downtown St. Louis law firm whose clients also are frequently sued for asbestos damages said the money on the defense side was small change compared to the cash that plaintiff lawyers collect.
"Insurance companies don't overpay their defense attorneys," said the lawyer, who asked to remain anonymous.
"I once tried to estimate for a client what our firm's fees would be for a year to defend asbestos cases in Madison County, given the steep increase in mesothelioma cases that the Simmons firm was filing. I estimated $1 million in fees over a year, which turned out to be wildly overstated. I think the actual figure might have been a fifth of that.
"There just isn't a lot of legal work lawyers can do to defend these cases. It's mostly a matter of negotiating the lowest amount of money Randy Bono will agree to take from your client for that case."
Bono conceded that Madison County's system for handling asbestos suits "is not perfect."
"Do defense lawyers have fair criticisms of the system? I have to admit that they do," he said.
When asked to list some valid complaints, Bono laughed. "I can't confess," he said. "I have to represent the other side, remember?"
County revenue
Scores of people work the judicial end of asbestos cases, from courthouse clerks to court reporters.
For Madison County, the asbestos cases mean a lot in filing fees.
Plaintiffs must pay $186 to file a claim. Each defendant has to pay an $86 answer fee. In addition, each case involves a $192.50 jury fee paid by one of the defendants.
With asbestos suits typically naming over 100 defendants, filing fees for a single claim can exceed $10,000 in revenue, which goes to the county's general fund.
Last year, almost 1,000 asbestos claims were filed in Madison County.
Fees generated last year by all civil cases filed in Madison County were $4,187,848.
By comparison, court fees last year for civil cases filed in St. Louis County, which has a population of 1.01 million, were $3,197,695.
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Greg Combet: Morality will prevail over profit September 27, 2004 NOTHING in my working life has upset me as much as James Hardie's attempt to walk away from people who are suffering disease and death because of exposure to the company's asbestos products. It highlights a disconnection between commercial decisions and morality which is sickening.
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