The Fifth District Appellate Court has sided with a Country Mutual policy holder who sought limits of two uninsured motorist policies following the hit and run death of her daughter four years ago near downtown St. Louis.

In a split 2-1 decision entered April 13, justices affirmed Madison County Associate Judge Donald Flack who entered summary judgment for Georgie Busch of St. Louis and against Country Mutual in 2014.

At age 23, Busch's daughter Amber Wood was killed while crossing the street in front of Broadway Oyster Bar on April 27, 2012. According to news reports, the person responsible for striking Wood has never been found.

In July 2014, Country Mutual settled one of two policies Busch held - the one in her name only which carried a higher uninsured limit of $250,000. But the insurer denied payment of a policy in Busch's and Wood's names which had a limit of $100,000.

After Busch sued, the parties filed cross motions for summary judgment.

Country Mutual argued that it already paid the maximum amount it was obligated to in relation to Wood's accident under both policies, pursuant to the provisions of both.

Busch, however, claimed she was entitled to $100,000 as special administrator of her daughter's estate in addition to the $250,000 she received individually under her own policy because Wood paid a separate premium on a separate policy, and because it was stipulated that the total amount of damages met or exceeded $350,000, the ruling states.

In siding with Busch, Flack found ambiguity in the policies' language related to "other insurance," where the company provides that it will pay its proportionate share of a loss when there is "other applicable uninsured-underinsured motorists insurance that covers a loss."

On appeal, Country Mutual argued that Flack erred in refusing to enforce the "unambiguous antistacking clauses" of the two policies.

For the majority, Justices Richard Goldenhersh and Judy Cates held that "the insurance company's payment to plaintiff on the uninsured limits of plaintiff's individual policy did not negate liability on a separate policy issued to plaintiff and plaintiff's deceased daughter."

Goldenhersh wrote that policy provisions are considered ambiguous "if they are subject to more than one reasonable interpretation."

The ruling held that the "plain reading" of the portion of the policies related to "other" insurance and payment on claims "indicates Country Mutual contemplated situations in which more than one insurance policy may apply to a single occurrence," he wrote.

But the court's presiding justice, newly elected James "Randy" Moore, issued a sharp dissent, saying the court should not "strain to find an ambiguity where none exists."

Moore wrote that ambiguity exists in an insurance contract only if the language is subject to more than one reasonable interpretation.

He found the terms of Busch's policies to be unambiguous, and should be enforced.

Moore wrote that the circuit court refused to apply a general policy condition addressing "other vehicle insurance with us" under Busch's policy, a provision dealing with the "same accident." It states, "the maximum limit of our liability under all the policies will not exceed the highest applicable limit of liability under any one policy."

"Our Illinois Supreme Court has held that an antistacking provision nearly identical to the one at issue was unambiguous and did not violate public policy," he wrote.

"I would reverse the circuit court's summary judgment in favor of the plaintiff and would remand with directions that a summary judgment be entered in favor of Country Mutual."

For almost two years, we’ve heard a litany of excuses for why Illinois does not have a state budget.

Rauner is holding the budget hostage for his extreme agenda!

Bipartisan gridlock!

The governor got in the way!

Democrats in particular say they’re waiting for the governor and other Republicans to step up to the plate. But here’s the thing: If Democrats really want a state budget, they can pass one.

This whole narrative about needing bipartisan agreement to "end the impasse"… it’s all a sham.

The great irony of the budget “grand bargain” is that Illinois has never needed a bargain to begin with. One party controls the General Assembly.

So if we’re going to discuss why there is not a state budget and point fingers, let’s at least be honest. Bargaining is what happens when one party needs something from another, and when neither can act in isolation. That’s not the situation in Illinois.

During most of Illinois’ faux "budget impasse," Democrats could have single-handedly passed and implemented whatever state spending plan they wanted.

In July 2015, when Illinois became the Land-of-No-Budget, Democrats had supermajorities in both chambers of the General Assembly.

This means that if they passed a budget and Gov. Bruce Rauner vetoed it, Democrats could have implemented it anyway by overriding his decision.

They sent a budget Rauner’s way in 2015, and the governor nixed most of it because it spent billions of dollars more than the state would collect in revenue. But after the veto, the Democrats didn’t do anything.

Well, I should rephrase: They didn’t do anything to advance their vision for how the state should spend money.

Instead, they threatened a government shutdown and tweeted to express their #outrage.

Meanwhile, the state’s backlog of bills soared. The state continued spending money because of court orders and continuing appropriations — and not just the money it took in; it spent billions and billions of dollars more. The Illinois comptroller estimates that even without an official state budget, 90 percent of state spending is happening anyway.

Today, Democrats remain in the supermajority in the Illinois Senate. House Democrats lost their supermajority back in January, but don’t think Speaker Michael Madigan‘s caucus isn’t still powerful; House Democrats are only four votes shy of being able to override a governor’s veto.

So all of this raises the question: If the Democrats have so much power in the statehouse, why do they act so helpless?

Easy. They don’t believe enough in their own ideas to actually put their names on them. And they absolutely do not want to be held accountable for the consequences.

In seeking Republicans’ support, they’re not trying to share credit for the good — they’re spreading blame for the bad.

The lynchpin of the recent “grand bargain” budget proposal was a massive tax increase. It paid lip service to popular ideas such as a property tax freeze and pension reform. But at its core, this plan would take billions of dollars from taxpayers to prop up the same old broken state government we have today.

The "negotiations" over this budget package were not about how much money the state can save taxpayers.

The talks were about protecting politicians from tough votes. Which and how many Republicans would shield Democrats, and vice versa.

The Democrats refuse to own another income tax increase. And they’re too beholden to special interests and the dysfunctional system we call state government to make actual, dramatic changes for the better.

So when you see the irate tweets by Illinois Democrats blaming Rauner, for the lack of budget, understand what they’re really mad about.

They’re really upset that their party lost its cover.

EAST ST. LOUIS — An employee is suing AMS Services LLC, a railroad construction company, citing alleged breach of contract for refusing to award him commission he says he earned for driving company revenue.

Aaron Boehmisch filed a complaint on April 17 in the U.S. District Court for the Southern District of Illinois alleging that the defendant failed to comply with their written contract to award commission to plaintiff for gross revenue earned for the company.

According to the complaint, the plaintiff alleges that on Aug. 30, 2015, he entered into an agreement with the defendant that he would be awarded 1 percent commission for all revenue generated by the St. Louis division of the company and additional 0.5 percent for the calendar year 2016 revenue. Boehmisch claims he failed to receive commission earned from the start of his employment on Sept. 4, 2015, until Feb. 1, 2017. 

The plaintiff holds AMS Services responsible because it allegedly failed to pay commission due at the end of each revenue period in payments amounting to $94,540, representing 1 percent of $9,454,000, and $22,270, representing .5 percent of $4,454,000, on or before Feb. 1, 2017.

The plaintiff requests a trial by jury and seeks judgment in the amount of $116,810 and legal interest, attorneys' fees, costs of litigation and for such further relief as the court deems just and proper. He is represented by Lawrence P. Kaplan and Catherine F. Grantham of Kaplan Associates LLC in St. Louis.

U.S. District Court for the Southern District of Illinois case number 3:17-cv-00399

BELLEVILLE — A passenger is suing drivers Tiffany D. Williams and Casey Crook, citing alleged negligence involving an April 2015 crash on Lebanon Avenue.

Eddie R. Diggs filed a complaint on April 4 in the St. Clair County Circuit Court against the defendants alleging that they failed their duty to use reasonable care and caution while driving for the safety of others.

According to the complaint, the plaintiff alleges that, on April 6, 2015, he was a passenger in a vehicle being driven westbound on Lebanon Avenue in Belleville by defendant Crook when they collided with the motor vehicle operated by defendant Williams in the same direction, near the intersection of North Belt East. As a result, Diggs claims he suffered physical injuries, lost wages and incurred medical expenses. 

The plaintiff holds Williams and Crook responsible because they allegedly failed to keep a proper lookout for other traffic on the public roadway, failed to reduce speed and failed to keep their motor vehicles under proper control.

The plaintiff requests a trial by jury and seeks judgment in an amount more than $50,000 plus costs of suit and for any other relief the court deems just and proper. He is represented by Micah S. Summers of Walton Telken Foster LLC in Edwardsville.

St. Clair County Circuit Court case number 17-L-175

BELLEVILLE — A woman is suing Helia Southbelt Healthcare LLC, a nursing home, citing alleged insufficient measures were taken to prevent injuries she experienced in the facility due to a slip and fall.

Marcella Buckley filed a complaint on March 28 in the St. Clair County Circuit Court alleging that the facility breached its duty to maintain the premises in a reasonably safe condition.

According to the complaint, the plaintiff alleges that on Feb. 10, 2017, she was a lawful invitee at defendant's premises exercising due care for her own safety when she slipped on food that had accumulated on the floor. Plaintiff claims she sustained severe injuries to her back, shoulder, right knee and others parts of the body that caused her to suffer physical and mental pain, medical expenses and disability. The plaintiff holds Helia Southbelt responsible because it allegedly negligently created and permitted a dangerous condition to exist on or about the premises and failed to place warning signs around the area where she fell.

The plaintiff requests a trial by jury and seeks damages in excess of $50,000, plus costs of this suit. She is represented by Thomas C. Rich, Kristina D. Cooksey and Michelle M. Rich of Rich, Rich & Cooksey PC in Fairview Heights.

St. Clair County Circuit Court case number 17-L-157

BELLEVILLE — A homeowner is suing Country Casualty Insurance Company, citing alleged breach of insurance contract for refusing to cover damage from a fire.

Thomas D. Swearengin, who owns the subject property in Millstadt, filed a complaint on March 27 in the St. Clair County Circuit Court alleging that the insurer denied plaintiff's claim without due cause and proper investigation.

According to the complaint, the plaintiff alleges that on Feb. 22, 2016, while his insurance policy was in effect, plaintiff's insured residence and personal property suffered loss caused by fire and smoke. Swearengin states that he filed a claim and furnished defendant with due proof of the loss. He holds Country Casualty Insurance Company responsible because the defendant allegedly failed and refused to pay the sum owed to plaintiff.

The plaintiff requests a trial by jury and seeks damages in an amount greater than $50,000, plus interest, costs of this suit, attorney's fees and all other relief as the court may deem proper. He is represented by Jason R. Caraway and Billy A. Hendrickson of Caraway, Fisher & Broombaugh PC in Belleville.

St. Clair County Circuit Court case number 17-L-154

BELLEVILLE — The representative of an estate is suing Casino Queen Inc., a bar operator, claiming it overserved a patron who was responsible for a traffic fatality.

Virginia Miller, as special representative for Harold Miller, deceased, filed a complaint on March 28 in the St. Clair County Circuit Court alleging that the defendant violated the Liquor Control Act.

According to the complaint, the plaintiff alleges that on May 29, 2016, Harold Miller died when his vehicle was struck from behind on Interstate 64 in St. Clair County by an intoxicated person, Shawn Heilman. Plaintiff suffered loss of companionship and society of decedent, as well as grief, sorrow and mental suffering. The plaintiff holds Casino Queen responsible because it allegedly negligently sold and gave liquor to its patron Shawn Heilman, causing him to become intoxicated.

The plaintiff requests a trial by jury and seeks damages in excess of $50,000, plus costs of this suit. She is represented by Thomas C. Rich, Kristina D. Cooksey and Michelle M. Rich of Rich, Rich & Cooksey PC in Fairview Heights.

St. Clair County Circuit Court case number 17-L-156

BELLEVILLE — A motorist is suing Stephen Brock Jr., citing alleged insufficient measures were taken to prevent injuries for a February crash in Belleville.

Barbara Jenkins filed a complaint on March 28 in the against Brock alleging that he failed to maintain proper control of his vehicle.

According to the complaint, the plaintiff alleges that on Feb. 16, 2017, she was traveling southbound on Arthur Street in Belleville when defendant struck the front side of her vehicle due to negligence. The plaintiff sustained severe injuries to her neck, back and right shoulder that resulted in medical expenses, pain and suffering, disability and lost wages. The plaintiff holds the defendant responsible because he allegedly failed to keep proper lookout for other vehicles on the road, failed to properly apply brakes to stop the vehicle and failed to yield right of way.

The plaintiff requests a trial by jury and seeks an award in excess of $50,000, plus costs of this suit. She is represented by Thomas C. Rich, Kristina D. Cooksey and Michelle M. Rich of Rich, Rich & Cooksey PC in Fairview Heights.

St. Clair County Circuit Court case number 17-L-155

BELLEVILLE — A woman is suing Marlon Foster, trustee of The Harlon B. Young Living Trust, citing alleged breach of fiduciary duty for failing to transfer property she claims she is entitled to.

Lillie Clark filed a complaint on March 20 in the St. Clair County Circuit Court against Foster alleging that she failed to perform her obligation under the terms of the trust.

According to the complaint, the plaintiff alleges that she has been damaged for not receiving the real estate located at 1707 Wilford Ave. in East Alton valued at $175,000. The plaintiff holds Foster responsible because, although demand for transfer of said real estate has been made, the property has still not been transferred to plaintiff.

The plaintiff requests a trial by jury and seeks judgment against the defendant in the sum of $175,000, costs incurred for this suit and such other relief as this court deems just and proper. The plaintiff is represented by Steven S. Fluhr of Fluhr and Moore LLC in St. Louis. 

St. Clair County Circuit Court case number 17-L-145

EAST ST. LOUIS — A convicted murderer's civil action against three drugmakers arguing his medication made him commit the crime was dismissed after a magistrate judge threw it out on grounds of timeliness.

An April 18 order from U.S. Magistrate Judge Reona J. Daly of the U.S. District Court for the Southern District of Illinois ruled plaintiff Tom Tuduj, who was convicted of first degree murder for killing his boss in 2006, was too late in filing his products liability claims in 2015. His complaint had been amended four times since then, and the three defendants in the case—Sanofi-Aventis U.S. LLC, GlaxoSmithKline and Wyeth-Pfizer—filed a motion to dismiss.

Tuduj filed the products liability action in March 2015 against the drug suppliers from his cell in Menard Correctional Center, where he is serving his 45-year sentence. His complaint claimed he would not have committed the murder if not for having taken the medications.

At his 2009 murder trial, Tuduj claimed he suffered from “involuntary intoxication” during the murder due to the mixture of anti-depressant Wellbutrin, hypertension medication Propranolol and sleep aid Ambien. If Tuduj was not taking the combination of drugs when the crime occurred, according to his argument, he would not have been under “a drugged state that prevented him from conforming his behavior to the requirements of law.” 

But the jury in that trial deemed him cognizant enough when he committed the crime regardless of any medication mixture. The conviction further established, according to court documents, that he “was able to appreciate the criminality of his actions” despite the medication. 

In another recent medication-related case, the Cook County Record reported how on Thursday, April 20, a Chicago jury held GlaxoSmithKline responsible to pay $3 million to a widow whose husband committed suicide by jumping in front of a train while on a generic version of the antidepressant Paxil. That case surrounded the adequacy of the medication's label in warning against negative side effects.

In this case, however, the defendants' motion to dismiss the charges against them were ultimately granted because of Tuduj's time-barred claims. According to the defendants, filing a 2015 claim nine years after the 2006 murder goes against the state’s two-year statute of limitations regarding personal injury neglect claims. The court's judgment in favor of the defendants was solely based on timeliness, the decision said, and not on the merits of Tuduj's products liability argument.

St. Clair County’s suit alleging that pill makers addicted Illinois citizens to opioids for profit provides an answer to a Chicago judge who asked lawyers where the claim would go if it failed in his court.

“Before you go,” U.S. Magistrate Judge Young Kim said after Purdue Pharma counsel Ryan Stoll of Chicago thanked him at the end of a hearing in 2015.

“I do have one question, and this is something that I don’t think the submissions answer.

“If in fact defendants get everything they want, the motions are granted, does the subject matter go away or will it be litigated somewhere else?”

Stoll said it depended on how District Judge Jorge Alonso would rule.

“There are multiple bases which we raised, many of which are entirely dispositive of the complaint,” Stoll said.

“It is entirely possible that if his honor sees it our way, the case will not be pending in front of judge Alonso and the case should not survive the motion to dismiss phase.”

Kim said, “But will the cases then be litigated in some other forum?”

Chicago staff counsel Michael Dolesh responded that the case was originally filed in state court and was moved to federal court.

“This affects the city’s health plan and the reimbursements that the city was forced to pay for drugs which we believe were falsely marketed and were not necessary,” Dolesh said.

“That’s a very real concern to us and obviously if the motions to dismiss are granted, we will just have to look what our options are at that point.”

St. Clair County’s complaint, which state’s attorney Brendan Kelly filed on April 20, lifted its opening sentences and long sections from Chicago’s complaint.

Chicago’s complaint remains active against Purdue Pharma and other pill makers, but Alonso has dismissed most of the claims twice.

Motions to dismiss the current complaint remain pending.

Parallel suits have fared no better.

A California judge stayed an addiction action in 2015, while awaiting research from the Food and Drug Administration.

Last year, a New Hampshire judge ruled that the state’s attorney general could not retain private counsel to pursue addiction claims on a contingency basis.

The retention agreement provided a 27 percent contingency fee for the New York City firm of Cohen Milstein.

New Hampshire’s Supreme Court heard argument over the fee on March 1.

Cohen Milstein represents Chicago and the California plaintiffs, Orange County and Santa Ana County.

Although Cohen Milstein’s words appeared in the St. Clair County complaint, the firm’s name didn’t appear.

David Cates of Swansea, son of appellate judge Judy Cates, signed the complaint. So did Christopher Cueto of Belleville and his associate Michael Gras.

Attorneys Eric Holland and Seth Crompton, of the Holland firm in St. Louis also signed the complaint.

Cohen Milstein’s leadership in addiction litigation ended in February, when seven of its lawyers jumped to the South Carolina firm of Motley Rice.

Linda Singer, Cohen Millstein’s top drug lawyer for eight years, led the relocation.

In 2007, as attorney general for the District of Columbia, Singer signed a settlement of claims that Purdue Pharma falsely advertised and promoted OxyContin.

In 2013, Chicago corporation counsel Stephen Patton retained Singer through Cohen Milstein.

Patton agreed to pay 22 percent of net recovery for resolution before complaint, 26 percent for resolution before summary judgment, and 30 percent after that.

The contract provided that the city would maintain control of the investigation and make all key decisions.

Singer immediately issued subpoenas on behalf of the city against Purdue Pharma, Teva, Cephalon, Johnson & Johnson, Janssen, Endo and Actavis.

Purdue Pharma challenged the subpoenas, due to Singer’s former role as its prosecutor, and she withdrew them.

Chicago sued all the companies in 2014, in Cook County circuit court.

Defendants removed the action to U. S. district court, where Purdue Pharma moved to disqualify Singer.

Alonso denied disqualification in 2015, finding Singer had not taken an active role in the case in Washington.

Defendants separately challenged Cohen Milstein’s involvement, by way of a motion for relief from improper delegation of government police power.

Carolyn Kubota of Los Angeles, counsel to Janssen and Johnson & Johnson, wrote that the complaint referred to numerous documents that Cohen Milstein collected from defendants by means of the subpoenas.

She wrote that Cohen Milstein used documents it obtained from a third party, American Pain Foundation, to make allegations.

“Based on the timing and similarity of the California complaint, defendants have serious concerns not only that the city improperly delegated its investigatory powers to Cohen Milstein, but that Cohen Milstein has improperly used the fruits of that unlawful delegation to advance contingency claims it is pursuing or intends to pursue on behalf of other clients,” Kubota wrote.

She reserved a right to pursue remedies for such misconduct if that should prove to be the case.

Alonso ruled that Cohen Millstein could continue representing the city.

“A number of courts have held that government entities may hire outside counsel on a contingent fee basis if there are certain safeguards in place,” Alonso wrote.

“Because the city retains control over the investigation and litigation of this case, its retention of Cohen does not violate defendants’ due process rights.”

Defendants meanwhile moved to dismiss the complaint and stay discovery.

Alonso granted a stay, and before long he dismissed most of the complaint.

Chicago amended the complaint and moved to lift the stay of discovery.

At a hearing on the motion in September 2015, Kim said, “Let me get some clarification on this. There were counts against Purdue dismissed?”

Purdue Pharma counsel Patrick Fitzgerald of Chicago, former U. S. attorney, said, “Yes, most of them.”

Kim said, “Those dismissed counts are now repled?”

Kenneth Wexler of Chicago, private counsel to Chicago, said, “Correct.”

Kim said, “To preserve for appeal?”

Wexler said no, and “in light of judge Alonso’s ruling, we pled additional facts to satisfy him.”

Kim said, “If the city is trying to revive a claim or claims dismissed by judge Alonso, necessarily the scope of the second amended complaint is in fact broader.”

Wexler said, “Not from a factual standpoint because when you get to each count, they reincorporate the factual allegations stated in the complaint.”

Kim entered an order that, “The discovery stay remains.”

He found the contours of the pending allegations immensely broader than the contours of the allegations that survived the first motion to dismiss.

He wrote that the complication and additional burden on the court, Purdue, and other companies would outweigh any benefit from collecting necessary discovery.

Last September, he again dismissed the bulk of the complaint and gave Chicago 30 days to amend it.

Chicago amended it, and defendants moved to dismiss it.

The motions remain pending.

On April 19, Kim set a status hearing on May 8.

On April 20, St. Clair County sued Purdue Pharma in its own court, on its own behalf and on behalf of the state of Illinois.

The county also sued Abbott Laboratories as a partner in marketing.

The county seeks restitution, damages, disgorgement of profits, civil penalties, punitive damages, fees, injunctive relief and other relief.

The complaint alleges that a deceptive and unfair campaign deprived doctors and patients of the ability to make informed decisions.

It alleges that defendants caused decisions to be made not on science but on hype.

It further alleges that in 2014, more than nine million oxycodone and hydrocodone pills were sold in St. Clair County.

It calculates the ratio at 34 pills per resident, compared with 1.22 pills statewide and 1.73 pills nationwide.

The complaint identifies 10 Southern Illinois doctors who prescribed opiates in violation of the law.

It states that many of them received information that caused them to believe the prescriptions were not as dangerous as they might have been.    

BENTON — A prisoner who saw his case against a medical center dismissed has been ordered to pay the suit filing fee from his prison trust.

Plaintiff Michael F. Disch, a prisoner at the U.S. penitentiary in Marion who pled guilty in 2012 to sending death threats and an anthrax hoax to Senior Judge Larry J. McKinney, who presides in a federal court in Terre Haute, Indiana, had his suit against Heartland Regional Medical Center dismissed without prejudice but still owes $400 to the court for attempting to sue.

The amount due by Disch, who was sentenced to more than nine years for his crime, must come from the agency of his custody, which is mandated to remove the emolument due from the prisoner’s trust fund.

“If he does not have $400.00 in his account, the agency must send an initial payment of 20 percent of the balance or the average balance during the past six months, whichever amount is higher,” reads the April 3 order that names Heartland Regional Medical Center as a defendant along with four individuals.

“This obligation continues regardless of the suit,” according to the order ruled by Judge Phil Gilbert of the U.S. District Court for the Southern District of Illinois. Subsequently, Disch “shall make monthly payments of 20% of the preceding month's income credited to Plaintiff's prison trust fund account until the $400.00 filing fee is paid in full.”

USP Marion, a medium security prison adjacent to a minimum satellite camp, must forward all payments to the court clerk every time Disch’s trust fund surpasses $10.00 until the entire $400 filing fee is paid in full.

Disch, who has already served five years of his sentence, has 30 days to the date of entry to appeal the dismissal without prejudice. All other pending motions were denied as moot, according to the order.

A lack of transparency between the asbestos bankruptcy trust system and the courts can lead to inflated recoveries for claimants and their lawyers, a problem that's not only unfair to solvent companies but to future claimants as well, according to a report released today by the Illinois Civil Justice League (ICJL).

Legislation requiring reasonable disclosure of claimants' exposure between the two systems is necessary, the report concludes.

“In recent years, a growing national debate over ‘trust transparency’ has risen to the forefront of asbestos litigation and is currently a prominent issue facing the Illinois judiciary and legislature,” it states. “The debate centers on the emergence of asbestos trusts as a substantial, alternative compensation system for asbestos claimants, and the failure of the tort and trust systems to integrate.”

Illinois law does not require plaintiffs in lawsuits to disclose trust claims they could be eligible to seek compensation from - and their lawyers typically don't file claims with bankruptcy trusts until after resolving litigation against solvent companies in court.

John Pastuovic, president of ICJL, called Illinois “ground zero” for asbestos-related personal injury lawsuits from plaintiffs across the country with only a small percentage of the plaintiffs filing asbestos complaints actually residing in the state. Madison County received almost one-third of all new asbestos cases filed in 2016, and almost one-half of the highest value cases involving mesothelioma.

Plaintiffs also file a significant number of cases in Cook and St. Clair Counties.

The ICJL report, titled “Illinois Asbestos Trust Transparency: The Need to Integrate Asbestos Trust Disclosures with the Illinois Tort System,” was authored by Mark A. Behrens of Shook Hardy & Bacon LLP, Marc C. Scarcella, MA, of Roux Associates Inc., and Peter R. Kelso of Roux Associates Inc. 

Pastuovic wrote that the report illustrates that “the failure by plaintiffs and their counsel to produce trust-related exposure evidence in a timely fashion in asbestos cases filed in Illinois appears to be systemic.”

What is an asbestos bankruptcy trust?

Pastuovic said that the historically most culpable companies - asbestos producers - first sought bankruptcy protection, exempting them from asbestos-related lawsuits. Bankruptcy trusts were set up to compensate current and future plaintiffs claiming damages from exposure to raw asbestos or asbestos-containing products.

Nearly 70 companies have filed for bankruptcy protection in what is commonly referred to as the “asbestos bankruptcy wave,” the report states.

As a result of the development of bankruptcy trusts, claimants are compensated through two separate systems today: trust claims for bankrupt companies and asbestos litigation for solvent companies.

Most asbestos plaintiffs allege exposure from more than one entity and seek compensation from both systems.

The wave began with the largest manufacturer of asbestos-containing thermal insulation products, Johns-Manville, in 1982. Then the “litigation environment experienced a significant shift” when several key asbestos defendants followed suit, the report states.

Plaintiffs’ attorneys “learned to exploit a disconnect that exists” between trusts and the court. They wait to file asbestos trust claims until after a personal injury case is resolved, allowing them to “withhold information that, if disclosed, could lead a jury to conclude that a bankrupt entity was the sole proximate cause of the plaintiff’s alleged harm,” Pastuovic wrote.

“Delayed trust claim filings also deny defendants the verdict reductions (called set-offs) they are entitled to receive for amounts paid to the plaintiff by asbestos trusts. This leads to ‘double dipping,’ where the plaintiff receives both a tort award and payments from multiple asbestos trusts for the same exact injury."

Pastuovic added that the lack of transparency between the asbestos trust and tort systems “makes it hard to police inconsistent and potentially fraudulent claiming that may deplete defendant or trust assets and rob future claimants of compensation they deserve.”

The report notes that double dipping provides plaintiff firms with “little economic incentive to pursue trust claims during the pendency of the tort lawsuit, which in turn renders basic discovery procedures in Illinois courts ineffective.”

Garlock Sealing Technologies 

The asbestos trust transparency debate became a national discussion in January 2014 after U.S. Bankruptcy Judge George Hodges of the Western District of North Carolina ruled in favor of the gasket and packing manufacturer Garlock Sealing Technologies. He agreed that the company’s present and future legal liability was estimated at about $125 million, which was more than a billion dollars less than what was sought by experts representing asbestos claimants.

After allowing extensive discovery, Hodges found that Garlock repeatedly settled cases at inflated recoveries in which it had little to no legal liability

“Garlock’s evidence at the present hearing demonstrated that the last ten years of its participation in the tort system was infected by the manipulation of exposure evidence by plaintiffs and their lawyers,” Hodges wrote in his order.

The data from the Garlock case was made public after Legal Newsline was granted access to the claims data, discovery data and trial transcripts.

In the claims made against Garlock, the data found that plaintiffs in Illinois cases filed an average of 19 trust claims and voted in four additional bankruptcy cases.

It also found that a subset of 198 Supplemental Settlement Payment Questionnaires disclosed an average of 10 trust payments for a total average recovery of more than $350,000 at the time of the Garlock discovery response.

Further, when Garlock’s estimation expert accounted for the fact that most of the claimants would continue to recover from outstanding trust claims beyond the date of the Garlock discovery response, it was estimated that plaintiffs would recover from an average of 20 trusts for a total average recovery of more than $660,000. In comparison, the Supplemental Settlement Payment Questionnaire disclosed an average plaintiff recovery from solvent defendants of just over $700,000.

It also states that public data suggests plaintiffs filing asbestos cases in Illinois could receive as much as half of their total asbestos-related compensation from trusts.

“The significant overlap between Illinois asbestos lawsuits and the trust compensation system necessitates legislation to ensure a reasonable level of disclosure with regard to claims made by plaintiffs in the tort and trust system,” the report states.

Illinois Issues

“Given the fact that roughly one-third of asbestos lawsuits and almost one-half of mesothelioma lawsuits in the United States are filed each year in Illinois, the trust transparency issue may be more pronounced in Illinois than in any other state,” the report states.

Illinois allows claimants a longer time period to file a claim with an asbestos trust as compared to filing a lawsuit, providing an opportunity for double dipping. Plaintiffs may also ask the trust to defer processing a claim for up to three years

The law firm Maron Marvel Bradley Anderson & Tardy LLP conducted an asbestos trust review and analysis on a sample of 100 asbestos cases recently filed in Illinois, which revealed similar results to the Garlock data.

“On average, plaintiffs in the sample could have made sixteen trust claims; thirty-seven plaintiffs could have made more than twenty trust claims. More significantly, of the 100 cases sampled, only eight disclosed having made trust claim submissions,” the report states.

Perhaps the most critical finding of the Maron Marvel review was their comparative analysis of asbestos trust disclosures in states that currently lack trust transparency legislation with states that have adopted such legislation in recent years.

Cases filed in state’s with trust transparency legislation disclose an average of 10 to 15 trust claims during litigation while more than 90 percent of plaintiffs in the sample Illinois cases failed to identify or disclose even one trust claim submission while the court case was in progress.

For example, Maron Marvel looked at a December 2014 case filed against 130 defendants by Gori Julian & Associates in which Dennis Robertson alleged he developed mesothelioma while working at a car dealership and secondary exposure from his mechanic stepfather.

However, testimony and related case disclosures “largely discounted Robertson’s forty-year career in the U.S. Steelworkers union and potential exposures to non-friction asbestos-containing products while working as a laborer and crane operator at Granite City Steel in Granite City, Illinois, from 1973-2014,” the report states.

Granite City Steel is a trust approved site for 10 trusts during Robertson’s tenure, and he may have a basis to file claims against as many as 20 trusts.

“Yet despite the direct and obvious links to at least eleven trusts, the Robertson case progressed through discovery and was set for trial absent any disclosure of trust claim filings,” the report states.

In another example, Maron Marvel studied a June 2016 case filed by Gori Julian on behalf of Beverly Swaim, the daughter and special administrator of the estate of Donald B. Lauve, against more than 100 defendants.

Lauve was a union insulator for more than 40 years, working at a number of industrial and commercial facilities, most of which were in Texas where he lived. His only work in Illinois was at the Mobil facility in Joliet during the early 1970s.

Given his history, the Garlock data suggest that upwards of 20 or more trust claims can be filed on Lauve’s behalf.

“As of September 2016 (less than two weeks before the closing of discovery), however, no trust claims had been disclosed in the underlying tort case, even though the plaintiff’s own allegations and publically available trust information regarding Approved Site lists provide an obvious link to a multitude of qualifying trust payments,” the report states.

EAST ST. LOUIS — A scheduling and discovery conference is set for early next month in the fraud case of the now former private management firm of the Illinois Lottery, filed following a newspaper's investigation.

The telephone conference is scheduled for 3 p.m. on May 8 before Magistrate Judge Donald G. Wilkerson at the East St. Louis courthouse in the class action filed in February against the private management firm Northstar Lottery Group. Northstar is accused of defrauding scratch-off players and retailers in the state.

The class action was originally filed Feb. 6 in St. Clair County's 20th Judicial Circuit Court, but the case was removed on March 8 to U.S. District Court for the Southern District of Illinois following a determination that the damages sought from the allegedly manipulated games are more than $75,000. 

On March 15, the court granted Northstar's motion for more time to answer allegations in the case, according to court documents.

The bench trial in the case currently is scheduled for December 2018 before Chief Judge Michael J. Reagan in East St. Louis.

The case was filed shortly after a investigation by the Chicago Tribune found that the state's lottery, managed by Northstar, printed more tickets than the Illinois Lottery generally printed but did not award many of the largest prizes in the lottery's biggest instant games. Plaintiffs in the case are three lottery players and Raqqa Inc., which owns Fairview Lounge Bar and Grill in Fairview Heights.

The case claims to represent businesses that act as retailers for the Illinois Lottery and individuals who purchased game tickets.

Northstar managed the Illinois Lottery from July 1, 2011, until the first of this year, according to the lawsuit. 

"As the Private Manager of the lottery, Northstar oversaw and directed the day-to-day operations of the lottery, including the design and operation of the individual games offered to Purchasers at point-of-sale locations by Retailer Plaintiffs," the lawsuit said.

"The Lottery generates more than $2 billion in ticket sales each year," the suit continued. "As the Private Manager, Northstar's compensation was tied to the Lottery's net income, thus giving Northstar an incentive to generate as much revenue as possible while paying out as little as possible in prizes and commissions. In short, Northstar had a profit motive in the Lottery."

The lawsuit alleges that Northstar routinely designed and operated games that failed to pay off on grand prizes advertised. 

"Purchasers were induced to purchase tickets for these games and retailers were induced to perform work to sell those tickets," the suit said. "But before all (or sometimes any) grand prizes were awarded, Northstar discontinued games. The result was that Northstar locked in profits for itself and eliminated risk that it would have to pay out winnings to purchasers and bonuses and commissions to the retailers."

Plaintiffs in the case seek $350,000 for the seven counts against Northstar, which is accused of violating the Illinois' Consumer Fraud and Deceptive Business Practices Act.

The Illinois Lottery, founded in 1974, now operates under its acting director Gregory Smith, with assistance from the Lottery Control Board, from locations in Chicago, Springfield, Des Plaines, Rockford and Fairview Heights. The terms of two of the Lottery Control Board's members are set to expire in July.

Northstar and state lottery officials have been declining comment in the case.

BELLEVILLE — A former dry cleaning clerk is suing New York Cleaners Inc. and John McIntosh, her supervisor, citing alleged retaliatory discharge and failure to timely pay final wages.

Tamara J. Hues filed a complaint on March 29 in the St. Clair County Circuit Court against the defendants alleging that they violated the Whistleblower Act and the Wage Collection and Payment Act.

According to the complaint, the plaintiff alleges that on April 12, 2016, plaintiff was unlawfully discharged from her employment. As a result, plaintiff suffered lost wages and benefits of full employment, inconvenience and humiliation. The plaintiff holds New York Cleaners and McIntosh responsible because they allegedly retaliated against her for disclosing information to the police department relating to a co-employee's assault on her that same day. For her actions, defendants discharged her, and allegedly failed to timely pay her final hours at work and her outstanding vacation pay.

The plaintiff requests a trial by jury and seeks damages in excess of $50,000, attorney's fees, interest, costs and all other relief as this court deems just. She is represented by Feme P. Wolf and Joshua M. Pierson of Sower & Wolf LLC in St. Louis and Bruce R. Cook of Cook, Ysursa, Bartholomew, Brauer and Shevlin Ltd. in Belleville.

St. Clair County Circuit Court case number 17-L-162

BELLEVILLE — A crew member is suing Inland Marine Service Inc., Inland Marine Harbor Service Inc. and manager Terrence D. Williams, citing discrimination and sexual harassment on the job.

Nathaniel Graf filed a complaint on March 29 in the St. Clair County Circuit Court against the defendants alleging that they violated Title VII of the Civil Rights Act and the Illinois Human Rights Act.

According to the complaint, the plaintiff alleges that, as a result of defendants' discriminatory practices, the plaintiff has suffered and will continue to suffer injury and monetary damages. The plaintiff holds the defendants responsible because they allegedly discriminated against him in terms and conditions of employment by creating a hostile work environment and allowing sexual harassment.

The plaintiff requests a trial by jury and seeks compensatory and punitive damages, costs of this suit and such other relief as this court deems necessary and proper. He is represented by John Stephen Brubaker of The Law Office of Van-Lear P. Eckert PC in Belleville.

St. Clair County Circuit Court case number 17-L-165

BELLEVILLE — A father is suing the man who shot and killed his son and Phillips-Garrett Inc. d/b/a Pink Slip Exotic Bar, alleging the establishment allowed the shooter to bring his firearm inside.

Marcus Stewart, as special representative for Marques Stewart filed a complaint on April 3 in the St. Clair County Circuit Court against the defendants alleging that defendant Pink Slip's employee negligently granted permission to the shooter to bring his fire arm inside the bar.

According to the complaint, the plaintiff alleges that on April 8, 2015, Marques Stewart was a patron at defendant Pink Slip Exotic Bar when he was shot and killed by the defendant shooter.

The plaintiff holds the defendants responsible because Pink Slip allegedly failed to provide adequate security inside its premises and failed to protect decedent from the known danger of defendant shooter's intention to cause harm.

The plaintiff requests a trial by jury and seeks damages in excess of $50,000, plus costs expended for this action and such other relief as this court deems just and fair. He is represented by Brent A. Sumner of The Summer Law Group LLC in Clayton, Mo.

St. Clair County Circuit Court case number 17-L-174

EAST ST. LOUIS — A federal judge has dismissed the claims of nine plaintiffs in Multi-District Litigation against the makers of the anti-epilepsy drug Depakote which allegedly causes serious birth defects in children.

On April 11, District Judge Nancy Rosenstengel granted Abbott Laboratories Inc. and Abbvie Inc.’s requests for summary judgments due to the expiration of Indiana’s statute of repose in those nine cases.

Abbott Laboratories had argued that the claims should be extinguished under the Indiana Product Liability Act because the specific claims were filed more than 10 years after the doses of Depakote were taken.

Indiana's statute of repose generally provides for a 10-year window to file a product liability claim of this type.

The controversy between plaintiffs and defense was whether to apply Indiana law or the law of Illinois which is more favorable to plaintiffs with a tolling exception to the statute for persons diagnosed with a disability. 

According to the suit, the children of the plaintiffs suffered serious birth defects because they were allegedly exposed to Depakote in utero after their biological mothers ingested the drug during pregnancy. Plaintiffs allege Abbott, which is headquartered in Illinois, and Abbvie failed to warn the mothers of the risk of birth defects, according to court documents.

Plaintiffs in these cases admitted that the conceptions, gestations and births of their children occurred within the borders of Indiana.

“What Defendants communicated (or failed to communicate) to the doctors prior to the risk/benefit analysis, what the doctors then communicated to the biological mothers, and what the biological mothers ultimately decided to do with the knowledge they were provided, all occurred within the state of Indiana for these Plaintiffs,” Rosenstengel wrote in the order.

Since the injury could not have occurred in any other state, these plaintiffs are subject to Indiana’s statute of repose, the order states.

Though Depakote is manufactured in Illinois, Abbott made decisions about the development, testing, manufacturing, labeling and marketing of the drug in Illinois, and Illinois is where Abbott’s decisions about the FDA-approved labeling of Depakote occurred. The court found that the following claims had to be dismissed due to their “strong presumption of favor to Indiana law”:

• Ginnifer E. and Philip Baugher, individually as parents and next friends of F.B., a minor
• Denise Estes, individually as parent and next friend of L.A.E., a minor
• Nicky Name (also known as Nicky Ward), individually as parent and next friend of J.W.A., a minor
• Laurie Campbell, individually and as parent and natural guardian of M.H., a minor
• Kathy Garrett, individually and as next friend of C.T
• Angie Stevenson, individually as parent and next friend of D.S., a minor
• Sherry Williams, individually and as next friend of T.C., a minor
• Linda Burns
• Christopher Doty, individually and as personal representative of the estate of Ryan Doty

Rosenstengel wrote that plaintiffs “overemphasize the perception of the interests Illinois and Indiana have in their different concepts concerning the statute of repose. Simply put, though Illinois has an interest in this case, that interest is outweighed by Indiana’s strong relationship to the issue at hand.”

BELLEVILLE — An insurance company is suing a motorist, citing alleged negligence while causing a collision with its insured client.

Progressive Universal Ins. Co., on behalf of Dustin Weiser, filed a complaint on March 7 in the St. Clair County Circuit Court against Wesley Olinger alleging that the defendant failed in his duty to exercise ordinary care while driving to avoid collision.

According to the complaint, the plaintiffs allege that on Oct. 23, 2015, Weiser was struck by the defendant's vehicle with such force as to cause extreme damage to the plaintiff's insured vehicle and personal injuries to the insured. The collision happened near the intersection of North Belt East and Orchard Street. As a result of the collision, the insurance company became obligated to and did expend the sum of $59,261 to Weiser. 

The plaintiffs hold Olinger responsible because he allegedly failed to drive at a speed that was reasonable and proper with regard to the traffic conditions, failed to yield to oncoming vehicles and failed to look out for other cars.

The plaintiffs request a trial by jury and seeks judgment in a fair and reasonable sum of $59,261, plus the costs of this action and other further relief to which the court deems appropriate. They are represented by Clair M. Connolly of Deutschman and Associates PC in Chicago.

St. Clair County Circuit Court case number 17-L-105

BELLEVILLE — A driver is suing another motorist for allegedly causing a collision while under the influence of alcohol.

Michael Giordano filed a complaint on March 10 in the St. Clair County Circuit Court against Marc Hickman alleging that the defendant failed in his duty to exercise ordinary care while driving.

According to the complaint, the plaintiff alleges that on March 14, 2015, he was driving southbound on Illinois Route 157 at the intersection of Petroff Road in Caseyville when the defendant's vehicle crossed the center line and collided with his vehicle. As a result, Giordano suffered physical injuries, pain and medical expenses. 

The plaintiff holds Hickman responsible because he allegedly failed to keep a proper lookout, failed to reduce or decrease his speed while approaching an intersection and operated his motor vehicle while under the influence of alcohol.

The plaintiff requests a trial by jury and seeks judgment in an amount in excess of $50,000 plus costs of this suit and other relief to which the court deems just and proper. He is represented by Patrick R. Foley of Foley and Kelly LLC in Belleville.

St. Clair County Circuit Court case number 17-L-116