How to Feed a Lawyer (and Other Irreverent Observations from the Legal Underground)

    Click on the book cover for details!

« Keep Moving #4 | Main | So I Buried the Lead, But At Least I Got It Right »



No doubt Gary, Indiana resident Mr. Whittington filed his lawsuit in Madison County for reasons of pure convenience, rather than because he was forum shopping. That the case only went to the jury (which deliberated for all of two hours) because the judge made the unprecedented decision that workers' compensation law did not apply is beside the point as well. Oh, yes, and U.S. Steel was not allowed to introduce evidence to the jury that they were taking safety measures that the plaintiff accused them of not taking.

In any event, overlawyered's coverage of the Whittington case noted that U.S. Steel settled for a fraction of the $250 million, so you're arguing against a straw man. Which tort reformers were you referring to?


Ted: You're not the only tort reformer of my acquaintance; if I'd been talking about you, I would have mentioned you specifically. But I did notice that in this 1/5/04 post on overlawyered, you recap the case but don't mention that the "plaintiff-friendly judge" (your term) took away the $200 million dollar punitive award. In fact, you imply the opposite: "The size of the award, compounding at 9% interest, caused U.S. Steel to decide to settle for a fraction of that amount rather than take their chance with an appeal." The reference to the "size of the award" is to the $250 million, not $50 million.

As a result, your readers are led to believe that U.S. Steel was thinking about 9% interest on $250 million, when that's not correct. It's also misleading to say that the case settled for a fraction of $250 million when it really settled for a fraction of $50 million. The latter number is less--though not quite as horrifying.

In any case, you're not alone: I looked earlier today, and I couldn't find any recounting whether by a newspaper or by a pro-business lobbying group that told the whole story. Don't worry about me, though--I'm sort of getting used to it.


A friend of mine who does mainly, though not exclusively, insurance defense work told me of a time that the judge hearing the case was a cousin of plaintiff's counsel. Now, I am no ethics scholar, but there is certainly something sketchy about that situation. (no, the judge did not recuse himself; perhaps he went to the same judicial conflict of interest seminar as Scalia?)


I'd like a cite for the proposition that the punitive damages were overturned. I think you're mistaken. The website of Mr. Bono, who you seem to be relying upon, refers to it as a $250 million verdict, without any reference to a judge-imposed remittitur, and, as you acknowledge, none of the extensive press coverage mentions such an order. I'm not sure when such an order could have happened. The jury issued its verdict Friday, March 28. The judge had not yet ruled on the punitive damages issue, according to a Mar. 29 news story. The case settled over the weekend, and U.S. Steel cut a check on Monday, March 31. But I'm happy to be corrected on that.

In any event, as I'm sure you're aware, even if the punitive damages were overturned by the judge, it would be subject to a cross-appeal. Correct me if I'm mistaken, but my understanding of Illinois law would mean that the 9% would apply if the notoriously plaintiff-friendly appellate court in that district reinstated the punitive damages. So that sword of Damocles would still be hanging over U.S. Steel's head.


Ted: Your last comment is a technical point about post-judgment interest: assuming (a) the $200 million punitive award was set aside, (b) the judge entered judgment on the $50 million non-punitive verdict, (c) the plaintiff appealed the ruling on punitives, and (d) the appellate court reinstated the jury's punitive award -- in this event, would post-judgment interest be calculated based on the original $50 million judgment or the jury's $250 million verdict? I think interest would be calculated on the $50 million judgment, though I admit I haven't researched the point.


On further thought about the technical point, it would make sense that post-judgment interest would be on the judgment, rather than on the verdict.

However, as I review press coverage, I am increasingly convinced that Judge Byron never ruled on the punitive damages question, and Mr. Bono either misstated or you misheard a proposition relating to pending post-trial decisions regarding the punitive damages. Verdict Search is very thorough about noting when an award is reduced, and did not do so for Whittington.


Ted: I'm certain about what I heard. I think there might be some confusion in the press coverage because the case apparently ended at the end of the week and settled over the weekend or early Monday. In any event, there seems to be agreement among many sources that the case settled for less than $50 million.

About your charge of "forum-shopping," as expressed on overlawyered and in your comments here: Randy Bono, the lawyer who tried the Whittington case, addressed this charge at the event yesterday. He said the defendants in the case never asked to move it out of Madison County. The defendants were satisfied with Madison County as a forum, perhaps because of the uniform rules on asbestos cases that have been developed in the county over many years (and which are now used as a model elsewhere in the country).

I say "defendants" because the case involved others besides U.S. Steel, some of them from Illinois. By the time of the trial, only U.S. Steel was left in the case. Another Illinois nexus stemmed from plaintiff's allegation he'd been exposed to asbestos in Illinois.


Your opposition to my characterization of the case as forum-shopping is a bit of a non sequitur. That the plaintiffs engaged in clever legal backflips to get the case into Madison County and that the kitchen-sink defendants knew it was futile to try to get the case moved out of Madison County is evidence for the need for reform, rather than evidence against forum shopping.


To Ted:

If venue was proper in Madison County, why is there a need for reform? Who are you castigating when you say that the "defendants knew it was futile to try to get the case moved out of Madison County?" Is this a sinister plot of the judges to get cases tried in improper venues? If venue is proper, and there are not grounds to get the case moved because of an inconvenient forum, they why shouldn't the case be tried in Madison County?


To Ted, Round 2:

First, you really should enable comments on your site -- that would allow me to make these comments to you directly.

Your comments in your "Madison County now an asbestos magnet" post turn venue law on its head. Venue has nothing to do with the location of the plaintiff--it is about either (a) the location of a defendant; or (b) where the action arose.

735 ILCS 5/2-101. Generally. Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.

I still don't see the problem here.


Thank you, Dave. I understand Illinois venue law. I am making a normative, rather than a positive, statement about venue law. For starters, the "good faith" requirement could stand to have some teeth that it doesn't currently have. Better still would be a reform of the judicial system so that magnet jurisdictions would not be so distressingly common.

If you want to make comments to me or Walter directly, you're welcome to use the e-mail addresses provided on the overlawyered site. Like most high-traffic blogs, we don't have comments: it's an expensive bandwidth drain.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Your comment could not be posted. Error type:
Your comment has been posted. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.


Post a comment

Your Information

(Name is required. Email address will not be displayed with the comment.)

My Photo

Search Beyond the Underground