Madison County, a small county in southwestern Illinois that has long been a prime venue for plaintiffs’ lawyers, may be the asbestos litigation capitol of the world. A new report by the Madison-St. Clair Record shows that 74.6% of cases filed in Madison County circuit court are asbestos cases.

The Illinois Trial Lawyers Association chalked the numbers up to historically large concentrations of industry and population. However the Record’s analysis challenged the Association’s claim and showed that industry in Madison County has drastically dropped over the past thirty years and that the county’s population only represents 2% of Illinois’ populace.

Madison County became a go-to destination for filing class action lawsuits around the turn of the 21st century. By 2002 it ranked third nationwide in the number of class actions filed per year behind only Cook County, IL, and Los Angeles County, CA. Lawyers frequently file more mesothelioma cases in Madison County than any other county in the nation. This stems in large part due to “rampant forum shopping” which has been detailed by a U.S. Chamber of Commerce report due to Madison County judges (and the Illinois Appellate Court) largely ignoring the forum non conveniens doctrine. According to the report many cases have little, if any, connection to the county and a minimal connection to the state of Illinois (The Record’s analysis shows that 98% of plaintiffs in these cases do not reside in Illinois).

Tort reform has been slow to come to Illinois. While the Class Action Fairness Act may be responsible for a temporary reduction of class action cases filed in Madison County, the numbers have since rebounded. Recently the Illinois senate judiciary committee voted down Governor Bruce Rauner’s tort reform bill. He has since stated that he intends to continue negotiations on tort reform as part of the state budget process. The budget process is currently stalled.

2015 Wisconsin Assembly Bill 92 (AB 92) increases monetary fines, creates a new criminal penalty, and limits the types of damages that are recoverable in lawsuits that derive from car crashes for those who do not have automotive liability insurance.

In March, Representatives Sanfelippo, Spiros, Weatherston, Tom Larson, Kapenga, and Jim Ott introduced AB 92 and the bill was referred to the Assembly Judiciary Committee. On May 11^th a substitute amendment was offered by Representatives Horlacher, Jarchow, Jacque, Kulp, and Sanfelippo.

Under current law, all motorists who drive on state highways are required to have automotive liability insurance (with a few exceptions). If the driver is stopped by the police and they do not have insurance for their vehicle, then they can be fined up to $500. Current law also requires that a driver have proof of insurance on their person or in their vehicle. A driver can be fined $10 for not having proof of insurance.

The original bill greatly increased the monetary fines for driving without insurance. For a first offense a driver would have been fined $1,000 – $5,000. For a subsequent offense within three years of the first one, a driver would be fined $2,500 – $7,500. If an uninsured driver injured someone, they would be fined $5,000 – $7,500, but if the driver knew they were uninsured then they would be fined at least $10,000 and be subject to a class I felony.

The original bill also changed financial responsibility rules. Under current law if a court files a judgment against a driver for more than $500 of damage to another’s property caused by operating their motor vehicle, then the driver’s license is suspended unless they prove “financial responsibility.” To prove financial responsibility the driver needs to show the Department of Transportation that they have adequate liability insurance or deposit $60,000 with the Department of Transportation, which the Department will keep until the judgment is paid. Under the original bill, drivers who are convicted of operating a motor vehicle without insurance must prove “financial responsibility” with the DOT for five years after the conviction or have their license suspended.

The largest change from current law in the original bill was that it prohibited uninsured drivers from recovering non-economic damages against an insured driver when involved in a car accident regardless of which driver was at fault.

The substitute amendment reduced the proposed increases in monetary fees. Under the amendment, a first offense of driving without liability insurance would be a $500-$750 fine; Causing bodily harm while driving without liability insurance would be a $1,000-$1,500 fine; And causing death while driving without liability insurance would be at least a $2,500 fine and a class H felony.

The financial responsibility language was retained from the original bill.

The substitute amendment does not mention limiting the types of damages that an uninsured driver can recover in a lawsuit concerning an accident with an insured driver.

As it relates to the current state of Wisconsin politics, the words “John Doe” have been omnipresent for what seems like Governor Walker’s entire tenure in office. The probe may be close to a conclusion as another challenge to the probe has been eliminated.

In the spring of 2014 Eric O’Keefe, Executive Director of Wisconsin Club for Growth, sued prosecutors in charge of the John Doe probe to hold them personally liable for violating his, and the Club for Growth’s, civil rights. U.S. District Court Judge Rudolph Randa ruled in favor of O’Keefe. The prosecutors appealed to the 7^th Circuit Court of Appeals. The 7^th Circuit reversed Judge Randa’s opinion, stating that the issues it raised should be decided by the state judiciary and dismissed the case. O’Keefe appealed to the U.S. Supreme Court in order to get the case reinstated and permanently block the probe. The Supreme Court denied certiorari last week, in effect rejecting O’Keefe’s appeal. The Supreme Court’s rejection ends O’Keefe’s case. However three cases concerning the probe are currently before the Wisconsin Supreme Court.

The state supreme court accepted three cases concerning the John Doe probe in mid-December 2014. Two cases were legal challenges from targets of the probe and a third was an action to reinstate the probe brought by special prosecutor Francis Schmitz. The court took up these cases after Judge Gregory Peterson determined the activities being investigated in the probe were not illegal. Schmitz appealed to the District Four Court of Appeals, based in Madison, arguing that Judge Peterson misinterpreted the campaign finance laws in question. The Court of Appeals rejected Judge Peterson’s ruling and the targets of the probe appealed to the state supreme court. The court decided not to hear oral arguments and rely solely on briefs when deciding the case. A decision is expected to be released this summer.

Within hours of state elections officials certifying the April 7^th referendum results, four Wisconsin Supreme Court Justices elevated Justice Patience Roggensack into the role of chief justice. The vote was taken via email with four justices – Gableman, Prosser, Ziegler, and Roggensack – taking part and voting for Roggensack. The other three justices on the court – Abrahamson, Bradley, and Crooks – did not cast votes in the election.

Justice Abrahamson filed a lawsuit the morning after the referendum passed in which she argues that she should remain chief justice until the end of her term in the spring of 2019.  In a letter to the U.S. District Court, Abrahamson’s attorney argued that she still holds the position of chief justice. Also in the letter, Abrahamson contests the procedure used for electing the chief justice. She argues the court should have conferenced to decide on a procedure before electing the chief justice. However Roggensack’s attorney, who is also the attorney for every other justice on the court but Justice Bradley, contended that once the election results were ratified the justices had the ability to elect a new chief justice at any time.

Chief Justice Roggensack stated in an interview this week “there’s no doubt about it,” she’s the new chief justice. The state supreme court website lists Roggensack as chief justice, and features a welcome message from her. She also plans to meet with staff to discuss the transition.

Bradley has stated the election of a new chief justice was premature. She noted that the issue of whether the constitutional amendment is to be applied “retroactively” (before Abrahamson’s term is up) needs to be decided in federal court. Therefore the court does not yet know if a vacancy exists to fill.

However, Justice Gableman argues the vote was not premature. He has told the media that when the federal judge denied Abrahamson’s request for a temporary restraining order to stop the members of the court from electing a new chief justice, the judge stated that when and how to implement the amendment was a question of state law. Therefore since the judge did not restrain the court from enacting the amendment, the members of the court were able to elect a new chief justice at a time of their choosing.

Justice Prosser, who voted in favor for Roggensack, says he does not think the court should install the new chief justice until the beginning of the court’s next term in the fall.

Chief Justice Patience Roggensack stated in a press release that as chief justice she intends to repair the damage done to the reputation of the state supreme court and broaden the involvement that justices, and judges around the state, have in the administration of the court system. Chief Justice Roggensack also intends to donate the addition $8,000 of her salary to the Access to Justice Commission which arranges civil legal services for those individuals who are unable to afford them. She has not indicated when she believes her term will begin.

Under current Wisconsin law, plaintiffs who win favorable verdicts are usually entitled to recover interest on the monetary judgments awarded to them. There are two types of interest. There is post-judgment interest, which is meant to compensate the plaintiff for loss of the use of the money while a defendant appeals an unfavorable judgment. Post-judgment interest accrues from the time the judgment is made until the time the judgment is paid. There is also pre-judgment interest, which accrues from the time the plaintiff makes an offer of settlement until the settlement is paid.

Past Reform

Prior to 2011, pre- and post- judgment interest rates were set at 12 percent. Because appeals or settlement agreements and payment can take time, plaintiffs could receive a significant windfall due to the high interest rate. 2011 Senate Bill 14 signed into law as 2011 Act 69 changed the interest formula from 12 percent to the prime rate set by the Federal Reserve Board plus one percent. This ensures that plaintiffs do not receive a windfall while also ensuring that defendants pay a reasonable interest rate.

2015 Assembly Bill 95

Assembly Bill 95 (AB 95) seeks to change the interest rate for pre- and post –judgment interest for verdicts in small claims court from the formula created in Act 69 back to the 12 percent rate. The primary author of AB 95 is Representative Thiesfeldt. The bill was introduced on March 12 and was referred to the Assembly Committee on Judiciary. A public hearing on the bill was held on April 7. The primary author AB 95’s companion in the Senate, 2015 SB 76, is Senator Nass. SB 76 was introduced on March 23 and referred to the Senate Committee on the Judiciary and Public Safety.