United States: Revisions To Madison County Standing Case Management Order For All Asbestos Personal Injury Cases: An Analysis And Summary

On August 19, 2016, Judge Stobbs amended Madison County's Standing Case Management Order For All Asbestos Personal Injury Cases ("Standing Order") for the second time since its initial implementation in 1995. Per Judge Stobbs the recent amendments to the Standing Order will not go into effect until January 1, 2017, with the exception of the new medical criteria requirements for non-mesothelioma cases which are effective immediately.

I.  How A Trial Setting is Determined?

Historically, the Standing Order required all Plaintiffs' firms to petition the Court for trial dates which were set aside for cases later filed by those firms. This was known as the "reservation system" and favored large Plaintiffs' firms with mass referrals vs. smaller-sized firms. The "reservation system" was always a controversial aspect of the Madison County Standing Order and in 2013 was abolished by Judge Harrison after Judge Crowder's removal for accepting campaign donations from certain Plaintiffs' firms that received favorable trial settings. However, logistical problems arose in the wake of the "reservation system" because multiple Plaintiffs' firms starting sharing single trial dates and the Standing Order still provided no limit on the total number of cases allowed per year. Compounding problems, the Standing Order allows expedited trial setting for cases that probably should not qualify for such an expedient trial date: namely, deceased plaintiffs where an estate administrator is over the age of 70.

Judge Stobbs' revisions to the Standing Order reflect an attempt at an orderly system without the problems that plagued the prior "reservation system." For the first time, the Standing Order will establish a "cap" on "first set" cases at 780 cases per year. However, the Order includes flexibility language to allow the Court to increase this maximum number of cases per year upon "good cause shown." Second, the Standing Order will now limit the number of Plaintiffs' firms sharing a jury week to two. The Revised Standing Order maintains the 19 cases per trial setting but alters the "first setting" language to "19 cases identified as priority cases for a jury trial week notwithstanding the number of Plaintiffs' firms assigned to trial in that given week or the number of cases for which certificates of readiness of trial are filed." This entire provision is new and explained in the next section.

II.  New Trial Readiness Provision/Priority Cases

One problem that has plagued defendants in Madison County is it has allowed for Plaintiffs' firms to set a vast number of cases on a single trial date with no sense of priority or showing a case is ready for trial. Over the past several years, Judge Harrison and Judge Stobbs have required Plaintiffs' firms to identify "priority cases" the week prior to a trial date but the perimeters of this requirement were never formally established and were abused by Plaintiffs' firms listing virtually all of their cases on a trial date as "priority." In addition, obtaining a "priority list" a week prior to trial date provided defendants no meaningful chance to prepare or adjust trial strategy. The revisions to Standing Order attempt to address this problem but, as shown below, the new procedure will likely have problems due to its complexity and ambiguity.

The Standing Order will now require that 45 days prior to a trial date that a Plaintiffs' firm file a pretrial report and certify a case is "trial ready." This pre-trial report will then be supplemented 14 days prior to trial. The pretrial report must include the following:

"(1) Case name and number;

(2) Attestation that all application provisions of the Court's Standing Order concerning pre-trial deadlines have been satisfy and the case is prepared for trial in all other respects;

(3) A listing of all expert reports that have been filed;

(4) Attestation that discovery is complete or will be complete 30 days before trial or otherwise by agreement of the parties."

Standing Order, Section II.A.3

In addition, "30 days prior to trial, a list of priority cases shall be filed and served." Id. "Cases that allege the disease of mesothelioma, having living plaintiffs with a shortened life expectancy attributable to asbestos exposure as shown by a qualifying diagnosing physician report or are over the age of 70 years shall generally receive priority." Id. "Any case not on the priority list cannot be called out to trial except for good cause shown with the remaining defendants." Id. "Any party may object to a case being designated trial ready or eligible to be considered a priority case on a particular trial docket." Id.

Predictably this new provision has potential "loopholes" and invites questions on application. For example, what is good cause shown to go to trial without listing a case as priority? What does it mean "the case is prepared for trial in all other respects"?  What happens when more than 19 cases are identified as priority from two different Plaintiffs' firms on a single trial date? Will defendant's need to object to the identity of "priory cases" on all grounds including, if a Plaintiff has not fully answered Standard Interrogatories or Requests for Production?

Again, it is hard to tell at this point what the new provision will mean in practice and only time will tell how this rule is applied in practice.

III.  New Medical Criteria Showing for Non-Mesothelioma Malignancies

The Revised Standing Order adds a condition precedent in order for a Plaintiffs' firm to obtain a trial setting for a plaintiff alleging a non-mesothelioma malignancy. Under the new provision, a plaintiff must provide either a diagnosing medical report or expert opinion that includes the following:

a. The plaintiff/ decedent's diagnosis and that exposure to asbestos was a substantial cause of plaintiff's/decedent's disease;

b. That the diagnosis and causation opinion are based on medically accepted principles and practices; and

c. The diagnosis and causation opinion are made by or based on statements made by reputable medical organization(s) that require at least, occupation, para-occupational or environmental exposure histories to find asbestos exposure as a cause of the disease;

d. Date of diagnosis of the disease.

Standing Order, Section II.B.2(d). Moreover, subsection (f) allows defendants to file motions to remove cases from any current trial setting that fail to meet any of the requirements of subsection (d).

IV.  Settlement Conference and Settlement Demands

The Revised Standing Order states that "in all cases set for trial, forty five (45 days) before the trial date plaintiff shall provide written settlement demands to all defendants from which he/she seek indemnity, if not previously provided." Standing Order, Section V.

Moreover a mandatory settlement conference shall occur on the Wednesday prior to a given trial week at 1:00 p.m. The person or attorney attending the settlement conference must be familiar with facts of the case and must have settlement authority to have access to someone who has full immediate settlement authority.

V.  Additional Changes

The Revised Standing Order also incorporates several other important changes. The Revised Standing Order recognizes the establishment of competitors to the Central Records Depository ("CRD") such as Pohlman USA. A Plaintiffs' firm must select the document and material depository ("DMD") of their choice as a precondition to bringing a motion to have case set for trial. Defendant can use the DMD as well to effectuate service of "Plaintiff-specific items" that are deposited in DMD.

In addition the Revised Standing Order will now require service of a stipulation list of expected product/premises testimony five business days (rather than three) before any Plaintiff deposition. In addition, the time limitation on evidence depositions has been removed entirely.

Last the Revised Standing Order re-defines "specially closed" status. For example, the Court may utilize "special closed "status in its discretion unless good cause is shown for any cases in which: 1) a Pre-Trial Report is not timely filed as required by section II.A.3; 2) a case where medical criteria of section II.D.(d) is not met within 1 year of filing date or 3) any case on the cleanup docket which is not set for trial by January 31st the year following the "clean up" docket. Standing Order, Section III.C.3.

In addition, if a Defendant is not dismissed when a case is designated by a plaintiff as "specially closed," a defendant may provide written notice to a plaintiff to have a dismissal without prejudice entered no sooner than six months after the date the case is ordered "special closed." Within 7 days of such notice, a plaintiff may respond certifying that the case to that defendant should not be dismissed but remain in "special closed" status because of a settlement pending or bankruptcy trust submission being made.

VI.  Summary

The new Standing Order certainly appears beneficial for defendants in several respects such as establishing a theoretical cap on filings, a requirement for Plaintiffs' firms to identify priority cases 30 days before a trial date, and medical criteria as a precondition for a trial date of a non-mesothelioma case. The Revised Standing Order also will now require settlement demands 45 days prior to a trial date and a mandatory settlement conference the Wednesday before a trial date. However, until the provisions are implemented next year, it is hard to tell if in practice the Revised Standing Order "means what it says" or will be undermined by exceptions and ambiguities as in the past.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions