Marilyn Tennissen Jun. 5, 2014, 5:06pm

In a recent article, a former Delaware judge recalled an asbestos case involving Beaumont’s Brent Coon & Associates that demonstrates the need for more transparency in asbestos litigation.

Plaintiffs who have claims of asbestos exposure and asbestos-related illnesses can seek relief in two ways: through the filing of a tort action against solvent manufacturers of asbestos-containing products and by filing claims with any of more than 60 asbestos bankruptcy trusts. Many states, including Delaware, Illinois, California, New York, Pennsylvania, West Virginia, and Texas, require full disclosure of any claims.

Judge Peggy Ableman was assigned to the asbestos litigation docket just before retiring from the Superior Court of the State of Delaware.

“In that capacity, the circumstances of one particular asbestos wrongful death case over which I was to preside unexpectedly thrust me at the center of one of the most controversial issues that has ever dominated asbestos litigation – the lack of any nexus, interface or transparency between the two systems that currently exist for providing compensation to victims of asbestos exposure,” she wrote in a submission to American Journal of Trial Advocacy.

The case she referred to involves a civil wrongful death suit over a woman’s asbestos exposure from her husband’s laundry. The plaintiff did not disclose that Beaumont’s Brent Coon  & Associates had already gotten him two settlement checks from asbestos trusts.

The civil lawsuit was filed Nov. 25, 2009, by Arthur and June Montgomery in the Superior Court in New Castle County, Del.

June Montgomery died of mesothelioma in June 2010.  Arthur Montgomery had worked as an electrician for the Port Everglades Power Plant, Broward County, Fla., and the suit claimed June Montgomery was exposed to asbestos by daily laundering of her husband’s work clothes.

On the morning the trial for the Montgomery case against the remaining defendant Foster Wheeler was set to begin in November 2011, Judge Ableman learned that neither the plaintiff nor his attorneys disclosed a “significant" number of trust submissions and withheld a “substantial” amount of evidence regarding June Montgomery’s exposure that had been submitted to the trusts but not to the defendant at trial.

Judge Ableman soon learned there had been 20 bankruptcy claims submitted for the Montgomerys by Coon & Associates. Three of the trusts had paid – Johns Manville, Keene and Celotex and those payouts were based “solely on Mr. Montgomery’s work history.”

The other 17 claims - to Halliburton, Harbison Walker, AWI, USG, B&W, OC, FB, Ferado, Flexitallic, Turner & Newell, Plibrico, GI Holdings, Artra, HK Porter, Asarco, Porter Hayden and ABB Lummus - were still pending at the time of the trial.

Court papers show that two days before trial, plaintiffs’ attorney Scott Barnes, of Ward & Barnes in Pensacola, Fla., first learned about the trust claims when Brian Montgomery arrived in town for the trial.

“I have been completely unaware of this until this moment, and believed there had been no bankruptcy claims filed …,” wrote Barnes in an email to the defense counsel.

Foster Wheeler’s counsel, Brian Kasprzak of Marks O’Neill O’Brien & Courtney PC and Chris S. Marks of Sedgwick LLP, said the failure to disclose was a violation of civil rules which state that “within 30 days of the filing of an asbestos action, plaintiff shall serve defense counsel with copies of all forms and materials related to any insurance carrier, employer, governmental agency, trust, entity or person related to or in any way involved with asbestos claims.” This includes copies of all material related to applications claims made to trusts for bankrupt asbestos litigation defendants.

“Nevertheless, Plaintiff asked for money from these trusts on the representations to these trustees that Mrs. Montgomery’s mesothelioma was caused by her exposure to asbestos from products made by the companies that established the trusts,” Foster Wheeler attorneys wrote in a letter to Judge Ableman.

The omissions, whether done intentionally or by negligence, would result in “severe prejudice” against Foster Wheeler in front of the jury, and the defense attorneys sought contempt charges.

In addition, the trust payments showed “the existence of admitted exposure to asbestos including products that were not part of discovery.”

“Had these claims been timely disclosed by plaintiff, Foster Wheeler would have taken a number of steps towards developing discovery and defense” including at the very least during depositions of Arthur Montgomery and expert witnesses.

“Foster Wheeler was given no such opportunity, however,” Kasprzak wrote.

“Moreover, it is apparent that Brian Montgomery, the decedent’s personal representative, bears responsibility for the failure to disclose bankruptcy claims. According to his testimony today, he accepted settlement checks from his Texas lawyers for two bankruptcy claims 8 or 9 months before trial. Brian Montgomery claimed that he did not bother to apprise his Florida or Delaware lawyers of the claims. The failure to do so was at least reckless, in light of the Court’s scheduling order. And the Plaintiff bears responsibility for the discovery violation as well.”

The only reasonable remedy now that the case was at trial was to dismiss the claims against Foster Wheeler, the attorneys argued.

Because a jury was waiting to serve and judicial and administrative resources had already been wasted, Judge Ableman said she had “no choice” but to continue the trial, leading to a dismissal of the case.

The judge said the problem, she learned, is that there is no “foolproof mechanism” to enforce the requirement that all settlements received from trusts be revealed if any civil action is taken.

“My reaction to the deceptive behavior caught the attention of those who were actively seeking greater transparency between the two compensation systems,” Ableman wrote. “As a result, upon my retirement, I was frequently asked to testify about my experience, unquestionably because the case presents a quintessential example of the abusive practices that members of the asbestos defense bar are actively seeking to curb.”

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