Texas firm at center of asbestos fraud case seeks summary judgment

Jessica M. Karmasek Jan. 28, 2013, 1:00pm

CHARLOTTE, N.C. (Legal Newsline) -- A Houston firm alleged to have made inconsistent claims about the origin of a client's mesothelioma is now asking a U.S. bankruptcy court to enter a summary judgment in its favor.

However, the company being sued over a rare type of asbestos -- Garlock Sealing Technologies -- is opposing the motion.

Williams Kherkher Hart Boundas LLP sued Garlock in 2008 in a Texas state court, alleging that client John Phillips' illness was caused by a rare type of asbestos called crocidolite that came solely from Garlock's products.

Garlock contends it was induced to enter into a far larger settlement than it would have paid. In Texas, juries can allocate a percentage of liability to responsible third parties.

Phillips worked at Triplex, a company that sold parts that contained asbestos, from 1966-68, but no records still exist detailing the company's inventory then.

The company claims the firm could have asserted Johns-Manville's asbestos-containing gaskets were to blame, but Johns-Manville had already filed for bankruptcy.

More than 90 companies have declared bankruptcy from asbestos litigation, and more than 60 bankruptcy trusts have been established to pay out claims.

In a Dec. 5 filing with the U.S. Bankruptcy Court for the Western District of North Carolina Charlotte Division, the defendants -- Williams Kherkher and attorneys Troy D. Chandler, Charles D. Finley and Samantha Flores -- moved the court to enter a summary judgment in their favor on the grounds that there is "no genuine dispute as to any fact."

"Specifically, Plaintiffs have not alleged any facts in support of their contention that Defendants made any misrepresentation of fact as required to prove their claims of fraud and negligent misrepresentation, nor can they produce evidence of any such misrepresentations, so those claims must be dismissed," the defendants wrote in their three-page motion.

"Further, Plaintiffs' conspiracy claim is premised on the existence of fraud, and because Plaintiffs can produce no evidence to support the fraud claim, the conspiracy claim must be dismissed as well."

Garlock, in a Jan. 10 response, said the defendants' motion is "premised on the principle that in the context of litigation, lawyers are permitted to do whatever they want."

"Their brief reads like an exercise in proof of that point, as it is a misstatement of Texas law and further offers a selective and tilted 'record' on which it contends this Court should dismiss claims that Garlock has asserted with every detail possible in a concealment case," the company wrote in its 19-page opposition.

Garlock contends the bankruptcy court should deny the motion and allow it to conduct discovery.

In October, Judge George Hodges ruled that a committee representing those with asbestos claims against Garlock will be allowed to intervene in the company's fraud case against Williams Kherker.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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Williams Kherkher
8441 Gulf Freeway
Houston, TX 77017

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