Illinois Slashes Jury Size from 12 to 6 Effective June 1

In December 2014, in the final moments of the lame-duck session, Governor Pat Quinn (D) signed a bill into law reducing Illinois’s jury size from 12 to 6 and increasing juror pay. The law is effective June 1, 2015. The bill was passed without bipartisan support just as recently elected Governor Bruce Rauner (R) was set to take office. Governor Rauner is targeting the law for repeal, but this is likely a futile effort without the support of the Democrat-controlled Illinois General Assembly.

Previously, parties in a civil case were entitled to demand a 12-person jury. For cases filed before June 1, 2015, the parties are still entitled to a 12-person jury if demanded and paid for.

The law was passed under the guise of increasing juror pay. Jurors will now receive $25 for the first day of service, and $50 for each additional day. Presently, jurors in Cook County receive $17.20 per day, while jurors in some other Illinois counties receive the statutory minimum of between $4 and $10 per day. Supporters of the law maintain that reducing the jury size from 12 to 6 was a necessary corollary to offset the pay increase.

The measure is largely viewed as favorable to plaintiffs and unfavorable to defendants, as underscored by the fact that the bill was lobbied by the Illinois Trial Lawyers Association (plaintiffs’ bar) and generally opposed by the Illinois Association for Defense Trial Counsel. The defense bar contends that it is easier for plaintiffs to convince 6 jurors than it is to convince 12, which they must do as plaintiffs have the burden of proof. Stated differently, it is easier for the defense to convince 1 in 12 to hold out than it is to convince 1 in 6 to hold out. This is important as Illinois requires unanimous jury verdicts. The plaintiffs’ bar makes the counterargument that—on the flip side—where the defense has a strong case, it is less likely that a 6-person jury will have a holdout for the plaintiff than a 12-person jury. In other words, the plaintiffs’ bar maintains that the law is neutral on its face, and whichever side has the better case will win irrespective of jury size.

Proponents of the law point to additional advantages, including higher pay, shorter voir dire, reduced litigation costs, and fewer citizens being called to jury duty. Supporters claim that being called upon less often and being compensated better will make jurors more willing to serve. Proponents state that the increased pay is paramount, because—although Illinois has a law requiring employers to permit employees time off for jury service—Illinois does not have a law requiring employers to pay employees for their time spent serving on a jury.

Opponents are unwavering in their belief that the law was passed with the primary intent of decreasing the jury size, and that increasing juror pay was mere pretext. Indeed, perhaps many would have been in favor of increasing juror pay, so long as it was “paid for” with other government cuts.

Opponents cite to additional drawbacks. First, they contend that 12-person juries are more diverse, which means they more accurately reflect the views of the broader community. Second, 12-person juries have a better collective memory of the testimony and other evidence, thereby decreasing the likelihood that pure emotion and passion will infiltrate jury deliberations. Third, critics claim that dominant personalities can more easily sway 6-person juries than 12-person juries. Fourth, opponents suggest that there is less debate with 6-person juries, which are more likely to reach a consensus quickly.

Interestingly, this law becomes effective on the same day as a separate measure that excludes asbestos-related personal injury claims from the ten-year construction statute of repose. We previously blogged about this measure here. Both bills were heavily backed by Democrats and the trial lawyers who support them. Both bills were also signed into law by former Governor Quinn in the waning days of his gubernatorial term.

To Spoil or Not to Spoil? Why Speculation Carried the Day for the Defense Against Plaintiff’s Spoliation Claims

This holiday season has been good to the asbestos defense bar.  On December 16, 2014, the Illinois Fourth District Appellate Court decided a case which emphasizes the need for a plaintiff to properly prove causation by non-speculative evidence.  In the process, the court rejected a “sham” spoliation of evidence claim, finding that defendant’s spoliation of evidence was immaterial in light of the witness testimony presented by the plaintiff.  This is the first published decision in this State pertaining to spoliation.

In Holloway v. Sprinkmann Sons Corp., 2014 IL App (4th) 131118, plaintiff Carol Holloway brought a negligence action against defendant Sprinkmann, an alleged asbestos insulation supplier, alleging that  defendant delivered and installed asbestos-containing insulation at plaintiff’s jobsite  while she worked as at the Eureka vacuum cleaner factory in Bloomington, IL.  As an alternative theory, plaintiff argued that Sprinkmann wrongfully destroyed evidence that plaintiff needed to prove her case.  Plaintiff specifically alleged that Sprinkmann destroyed records indicating the types of insulation it sold and to whom the insulation was sold.  Destroying this evidence, plaintiff argued, prevented her from demonstrating which specific asbestos-containing products were sold and delivered by Sprinkmann to her jobsites.

At trial, plaintiff called Arthur B. Kremers, Sprinkmann’s former owner.  When Kremers began working for Sprinkmann in 1969, old records dating back to the 1950s were kept in the basement of the company’s Peoria office.  These records showed the brand and manufacturer of each product defendant had sold and delivered, as well as which employees had installed each product.  Apparently, as early as 1957, Sprinkmann employees began making claims for asbestos-related disease, relying on the basement records to show which brands of insulation the employees had installed.Sometime in the 1980s, however, Kremers shipped the basement records to a recycling center because “defendant was running out of space.”  The destruction of the records, according to Kremers, was consistent with Sprinkmann’s document retention policy, under which sales contracts and invoices were to be retained for only three years.

Crying foul over the alleged “spoliation” of evidence, plaintiff called co-worker witness Ellis Carlton and read into evidence an affidavit of another deceased witness, Wesley Klein.  This evidence was uncontroverted, and – as the documents themselves would have done – established that asbestos-containing insulation supplied by defendant Sprinkmann was present at plaintiff’s jobsite and installed by it.

The jury nonetheless returned a general verdict in defendant’s favor, prompting plaintiff to file a motion for a new trial, which was denied by the trial court.  On appeal, plaintiff argued that the jury might have found for plaintiff if it had had the benefit of reviewing the destroyed records establishing that the products were present at plaintiff’s worksite.

The appellate court affirmed the trial court’s judgment.  In doing so, it focused on the fact that the uncontradicted evidence of Klein and Carlton already established that the products were present at the facility.  To the extent that the “spoliated” records would have done nothing more than supply the same information, the jury could have reasonably concluded that the destroyed records would have made no difference in plaintiff’s case.   Thus, the “spoliated” records were no consequence.  For this reason, the court found that plaintiff failed to meet her burden of proving that, but for the destruction of the records, she would have had a reasonable probability of prevailing. The court then expressly addressed the key issue in this case:  that “the real problem in plaintiff’s case was causation, which the records would not have addressed.”  Indeed, the court hammered home the fact that “all plaintiff offered in the trial was speculation that her asbestosis resulted from repair work on the pipe-covering insulation in the Eureka plan, although she never saw any repair work being done on the insulation and there was no other evidence placing her near any such repair work.”

Plaintiff attempted to substantiate her exposure using the testimony medical expert Dr. Arthur Frank in conjunction with her own testimony that she was “in all the different parts of the plant for one reason or another.”   Dr. Frank espoused the “re-entrainment” theory, testifying  that individuals who had never worked hands-on with an asbestos-containing product could still be exposed to asbestos fibers because these fibers drifted around the factory and could be carried a long way by air currents.  According to Dr. Frank, all asbestos-containing products, including steam pipe insulation, released such fibers.  In fact, simply the “passage of time” would release these fibers.  On the other hand, Frank also conceded that a person needed to cross a threshold of a certain amount of exposure before getting asbestosis; Frank could not clarify what the threshold was, though he insisted that, for someone with asbestosis, “each and every exposure to any asbestos product had to be regarded as a cause.”

The court, however, was unpersuaded by plaintiff’s interpretation of her own testimony.  Specifically, the court noted that saying that plaintiff was “in all the different parts of the plant for one reason or another” is not quite the same as saying she “worked all over the plant.”  For argument’s sake, the court assumed that Dr. Frank’s theories were correct, that when asbestos-containing insulation had to be repaired, it created asbestos dust, and that such dust stayed around for a long time and wafted through the air.  However, the court concluded that Frank’s testimony was ultimately irrelevant, as there was no evidence that the buildings in the Eureka plant shared the same air, nor was there any evidence presented suggesting that the buildings in the plant shared a common ventilation system.  Plaintiff could therefore not clearly connect the allegedlyomnipresent “asbestos dust”  to her own inhalation.  Even if she had, the court pointed out problems with the testimony of plaintiff’s “expert,” noting that Frank’s testimony provided no solid, non-speculative evidence that the amount of asbestos dust breathed in by plaintiff under such circumstances would be sufficient to cause asbestosis.

Holloway v. Sprinkmann places great importance on a plaintiff’s burden to show causation with non-speculative evidence.  For plaintiffs like Holloway, certain expert testimony may seem like a home run (eg., the “re-entrainment” theory), but, at the very heart of the matter, such evidence is nothing more than conjecture. In rejecting plaintiff’s spoliation argument, the Sprinkmann court further demonstrated that it will not permit “red herring” issues to distract the court from a lack of admissible evidence of causal links.  This decision from the Illinois appellate court provides further support for defendants seeking to attack speculative evidence, without fear that extrinsic issues that have no bearing on their ultimate liability will alter the result.