Asbestos litigation in Illinois is generally trending down.
Although 2018 data is still populating, according to the KCIC Asbestos Litigation: 2018 Year in Review, asbestos litigation, overall, is in a downward trend. Filings are down approximately 11% from 2017 and 17% from 2016. Even though many of the main venues for asbestos litigation saw major decreases, the only notable increase occurred in St. Clair County, IL. St. Clair County experienced a 30% increase with 207 cases filed in 2017 to 268 in 2018. Madison County, IL remains the epicenter for asbestos litigation making up 27% of all 2018 filings.
Mesothelioma remains the main disease type, but it did experience about a 6% decrease; however, the largest decreases were from non-malignant and other cancer filings, which are down 40% and 31%, respectively, compared to 2017. Of note, even though asbestos filings as a whole are decreasing there is a notable increase in the number of females filing suit and not only in talc cases.
Madison and St. Clair County remain popular venues for asbestos filings.
Even with the slight decrease in filings, Illinois, specifically Madison and St. Clair Counties, remains the most popular venue. The vast majority of those claims filed in Illinois are “tourist filings” with only 7% of the complaints filed in Illinois by Illinois residents, with the remaining 93% of filings by non-residents. According to KCIC, although “tourist filings” are still the norm they have noticed the same plaintiff filing multiple lawsuits, for the same claim, in several jurisdictions which may be the result of recent personal jurisdiction rulings. While KCIC states that this has not become common practice, should it become more common it does have the potential to increase the number of asbestos lawsuits filed.
Bankruptcy and recent legislation regarding trust claims may be impacting the number of asbestos filings.
Bankruptcy and recent legislation addressing trust claims could be another reason we are seeing a decrease in asbestos filings. Many asbestos claims are now paid out through post-bankruptcy trusts as many of the original asbestos defendants have declared bankruptcy. This has brought attention to how the bankruptcies affect solvent defendants left in the litigation and the recovery plaintiff’s collect. Unlike the tort system, these trusts may have as many as 18,000 non-malignant claims per year. The higher volume of claims is attributed to lower evidentiary standards and transactional costs. Therefore, State legislatures have focused their attention on BTT litigation by creating a more transparent trust claim submission process. This process requires plaintiffs to share certain information in the torts system regarding their trust filing history and, sometimes, even mandating certain time restrictions for such filings. These submissions include listing all personal injury claims they have made or anticipate making against a trust and require the plaintiff to consent to discovery of trust information. In some jurisdictions, including Kansas and Michigan, failure to comply with these requirements is sanctionable conduct. Kansas, North Carolina, and Michigan are the latest states enacting legislation, bringing the total count to sixteen states nationwide.
Talc litigation is bucking the trend.
Talc litigation is the one area of asbestos litigation that is not decreasing. There was a 68% increase in filing of Talc claims from 2017 to 2018. Talc use is widespread; therefore, it carries a risk of an enormous potentially exposed population. There are claims that the cosmetic use of the talc itself caused ovarian cancer; while, there are also claims that asbestos within talc caused mesothelioma or lung cancer. It has been easier for courts to focus on personal jurisdiction in these types of cases because there are fewer defendants. Therefore, suits tend to be filed where defendants do business rather than forum shopping as they do in Mesothelioma cases. Still, the top venue for Talc litigation is St. Louis, MO, with Madison and St. Clair County close behind.
The plaintiffs’ bar continues to find ways to keep asbestos litigation alive.
Original forecasting models did not consider alternative or non-traditional routes of exposure; therefore, there has not been the reported decrease that historical studies initially predicted. While overall mesothelioma incidence is decreasing, the propensity to sue, especially for females, is actually increasing which can be attributed to increase in cosmetic talc exposure and it allegedly causing ovarian cancer. KCIC reports that women make up the majority of secondary exposure claims with Madison County, IL, becoming the top jurisdiction for female claimants alleging secondary exposure only. Madison County is also the top jurisdiction for claims of non-occupational exposure filed in 2018.
While 2018 showed the usual course for asbestos litigation, there were some fluctuations. The most significant change is the potential effects of talc-related filings and state legislatures taking an active role in BTT litigation.
For more details and statistics regarding asbestos litigation in 2018, read the industry report from KCIC here.
* Kelly M. “Koki” Sabatés, Summer Law Clerk, assisted in the research and drafting of this post. Sabatés is a rising 3L student at the University of Missouri-Columbia.