Asbestos Exposure Harms More Than Just Victims: Insurers Are on The Hook Too
By John Adinolfi (2024 Summer Associate) & Rachel Roberts (2024 Summer Associate)
Illinois has historically been a hotbed of asbestos litigation. There are a few counties in the state that have seen the most asbestos-related filings over recent years, one of them being St. Clair County. The decision to bring a claim in St. Clair County can be linked to several factors including Illinois’ perceived plaintiff-friendly litigation environment and recent legislation in neighboring areas. While business is booming for the county’s judiciary, insurers should closely monitor the litigation to assess their own exposure.
Since 2017, St. Clair County, located just east of St. Louis, has consistently ranked one of the nation’s top jurisdictions for asbestos-related lung cancer claims. In 2022, one in three lung cancer lawsuits nationwide were filed in St. Clair, and in 2023 there was an 11% rise in filings there. Despite the large number of filings, only a few firms are predominantly responsible for this activity, including Gori Law Firm (“Gori”) and the Flint Cooper Firm. In 2023, Gori filed 411 lawsuits (up from 389 in 2022). Meanwhile, Flint Cooper filed 69 lung cancer-related suits in St. Clair County that same year, an increase of 92% from 2022. This concentration of filings from specific firms may be the result of old fashioned politics for sale. Plaintiffs’ lawyers have donated $35.25 million to Illinois politicians over the past 15 years, and the top personal injury firms have given more than $7 million to Illinois judicial candidates alone. What’s more is plaintiff-lawyer contributions to county officials’ campaigns were heaviest in three counties – St. Clair being one of them.
Aside from the potential implications of “buying justice,” firms will continue to file lawsuits where they believe they have the best chance at winning which can include where they can find sympathetic juries. St. Clair’s own Chief Judge Andrew Gleeson has acknowledged that parties had “a jury of [their] peers who tended to be more sympathetic to the working man” given their firsthand connections to factory workers who had been impacted by asbestos-related illness. Gleeson’s assertion of sympathy for “the working man” is supported by the fact that the county’s median household income in 2022 was $67,395 and more than a third of people made less than $50k. Compare this with St. Louis County, where the median income was $79,440 that same year.
Legislation is also at play when considering the number of filings in St. Clair. In 2017, Illinois’ neighbor Missouri passed a law requiring a stronger standard for admissibility of expert testimony. Under the adopted Daubert standard, all testimony must be based on sufficient factors or data, result from reliable principles and methods, and apply those principles and methods to the specific case. As a result, Missouri saw a 40.3% decrease in asbestos filings in St. Louis County alone. Instead, plaintiff firms began pursuing their cases across the river in Illinois, one of only a handful of states that has not adopted Daubert. Additionally, in 2019 Illinois enacted a law that allows employees with formerly barred asbestos claims to sue employers directly, another contributing factor to the number of filings in the county. However, “over naming” defendants, or naming as many potential defendants as possible, is also at play. For example, in 2020 cases in St. Clair included an average of 113 named defendants compared to 80 named defendants on average in Illinois asbestos cases that same year. The fact that Illinois allows for joint liability, meaning a defendant who is only 25% responsible for an injury can be required to pay 100% of the damages, only contributes to the practice. There is no law preventing such strategy on the part of plaintiff lawyers looking for solvent defendants.
Lastly, while there has been an increase in asbestos-related lung cancer filings in St. Clair, mesothelioma filings have decreased. Though the number of mesothelioma cases has never been significant in the county, this disparity is noteworthy as it highlights yet another strategy utilized by plaintiffs in choosing to pursue lung cancer claims rather than mesothelioma. To prove an asbestos-related lung cancer injury, some courts have determined that the asbestos exposure need only be part of the reason that the plaintiff has developed cancer. In such jurisdictions, a lifetime smoker exposed to asbestos may be able to sue even though the asbestos exposure was not the sole contributor to his cancer.
An increase in asbestos-related lung cancer filings can affect insurers in several ways. First, the proliferation of new litigation and claims will undoubtedly lead to increased financial stress on insurers in this space. The rising number of lung cancer claims may trigger multiple insurance policies over a span of many years, increasing the possibility of coverage litigation. As more insurance policies are triggered, the determination of liability and the period during which coverage was available will become increasingly complicated and possibly contentious. Second, if courts continue to determine that these claims have merit and proceed to trial, insurers will face a significant burden in litigation defense costs. The lack of legislation ensuring that plaintiffs are suing defendants with actual connections to both the forum and the plaintiff will only contribute to insurers’ potential burdens.
Despite the current lack of reform in Illinois specifically, there is potential for it on a greater scale. In Truck Insurance Exchange v. Kaiser Gypsum Co., the Supreme Court recently delivered a victory for insurers in asbestos-related bankruptcy deals. The Court recognized that insurers have a right to be heard on reorganization plans that have real economic impact on them, especially on issues relating to potentially fraudulent claims. This may quell bad behavior that arises when debtors strike a deal with third parties leaving the insurer financially burdened. The decision grants insurers the right to raise complaints, but it does not extend much more leverage after that. Regardless, the case highlights the concern about excessive or improper claims, something of which insurers that find themselves in St. Clair County should take note.
1 Jazmin Gelbart, Diving Deep into the Asbestos-Related Lung Cancer Docket in St. Clair, KCIC (May 19, 2022) https://www.kcic.com/trending/feed/diving-deep-into-the-asbestos-related-lung-cancer-docket-in-st-clair/#:~:text=Clair%20has%20consistently%20been%20the,tripled%20from%20197%20to%20590.
2 Jazmin Gelbart, Diving Deep into the Asbestos-Related Lung Cancer Docket in St. Clair, KCIC (May 19, 2022) https://www.kcic.com/trending/feed/diving-deep-into-the-asbestos-related-lung-cancer-docket-in-st-clair/#:~:text=Clair%20has%20consistently%20been%20the,tripled%20from%20197%20to%20590.
3 Heather Isringhausen Gvillo, KCIC Report: Madison, St. Clair Counties see most asbestos filings for 2022; Cook County ranked #7, KCIC (Apr. 11, 2023) https://madisonrecord.com/stories/641434577-kcic-report-madison-st-clair-counties-see-most-asbestos-filings-for-2022-cook-county-ranked-7.
4 Heather Isringhausen Gvillo, KCIC Report: Madison, St. Clair Counties were top asbestos jurisdictions in 2023; Cook County saw greatest increase, KCIC (Apr. 11, 2024) https://madisonrecord.com/stories/657663437-kcic-madison-st-clair-counties-were-top-asbestos-jurisdiction-in-2023-cook-county-saw-greatest-increase.
5 Id.
6 Id.
7 Judicial Hellholes 2023/24, St. Clair and Madison Counties, Illinois, ATR Foundation (last accessed July 8, 2024) https://www.judicialhellholes.org/hellhole/2016-2017/cook-madison-and-st-clair-counties-illinois/.
8 Id.
9 Heather Isringhausen Gvillo, Gleeson at asbestos conference: Communication lacking in part due to ‘lack of technology in St. Clair County’, Madison-St. Clair Record (Sep. 27, 2022) https://madisonrecord.com/stories/632575458-gleeson-at-asbestos-conference-communication-lacking-in-part-due-to-lack-of-technology-in-st-clair-county.
10 U.S. Census Bureau (2022), Census Reporter Profile page for St. Clair County, IL (last accessed July 17, 2024) https://censusreporter.org/profiles/05000US17163-st-clair-county-il/.
11 U.S. Census Bureau (2022), Census Reporter Profile page for St. Louis County, MO (last accessed July 17, 2024) https://censusreporter.org/profiles/05000US29189-st-louis-county-mo/.
12 Mo. Ann. Stat. § 490.065 (West).
13 Raising the Bar: Missouri’s New Daubert Law, Segal McCambridge (Apr. 12, 2017) https://www.segalmccambridge.com/blog/raising-the-bar-missouris-new-daubert-law/#:~:text=Rather%20than%20hewing%20to%20the,reliably%20to%20the%20specific%20case.
14 Judicial Hellholes 2023/24, St. Clair and Madison Counties, Illinois, ATR Foundation (last accessed July 8, 2024) https://www.judicialhellholes.org/hellhole/2018-2019/st-clair-and-madison-counties-illinois/.
15 Mark A. Behrens & Mary Margaret Gay, Illinois Asbestos Litigation: Common Sense Reforms for The Nation’s Leading State for Asbestos Filings, Gay Jones & Kuhn PLLC (Apr. 28, 2021) https://www.gayjoneslaw.com/il-asbestos-litigation-common-sense-reforms.
16 Judicial Hellholes 2023/24, St. Clair and Madison Counties, Illinois, ATR Foundation (last accessed July 8, 2024) https://www.judicialhellholes.org/hellhole/2016-2017/cook-madison-and-st-clair-counties-illinois/.
17 Heather Isringhausen Gvillo, KCIC: Madison, St. Clair Counties were top asbestos jurisdiction in 2023; Cook County saw greatest increase, Madison-St. Clair Record (Apr. 11, 2024) https://madisonrecord.com/stories/657663437-kcic-madison-st-clair-counties-were-top-asbestos-jurisdiction-in-2023-cook-county-saw-greatest-increase.
18 Weitz & Luxemberg, $38 Million Verdict for Smoker with Lung Cancer from Asbestos (Sept. 12, 2023) https://www.weitzlux.com/firm-news/38-million-verdict-for-smoker-with-lung-cancer-from-asbestos/.
19 See Truck Insurance Exchange v. Kaiser Gypsum Co., Inc., 144 S. Ct. 1414, 1417 (2024) (finding that insurers are “the checkbook holders” because they are often the parties who will be financially responsible).
20 Dietrich Knauth, US Supreme Court backs insurers’ right to speak up in bankruptcy, Reuters (June 6, 2024) https://www.reuters.com/legal/government/us-supreme-court-backs-insurers-right-speak-up-bankruptcy-2024-06-06/.