Judge calls letter to asbestos witnesses 'improper'

Jessica M. Karmasek Oct. 31, 2011, 10:00am


CHATTANOOGA, Tenn. (Legal Newsline) - Asbestos attorneys have agreed to be enjoined from undertaking "further improper communication" with potential witnesses, according to an order filed in a Tennessee circuit court.

Attorneys for a group of companies filed a motion in Hamilton County Circuit Court in April to enjoin the plaintiff, Carl "Smokey" Abbott, and his counsel, Jimmy Rodgers Jr. of Summers & Wyatt PC and John E. "Rett" Guerry III of Motley Rice LLC, from the future use of a letter asking witnesses not to speak with defense counselors.

The companies included in the motion were: Bayer CropScience Inc., Certainteed Corp., General Electric Co., Georgia-Pacific Corp., Industrial Holdings Corp., Union Carbide Corp., CBS Corp., ITT Corp. and Yarway Corp.

The companies also asked that the court bar the plaintiff's counsel from calling certain witnesses at trial.

However, the witnesses would not be excluded completely. In a footnote, attorneys for the companies said because they did not engage in any improper communication that they should be allowed to call these witnesses at trial if they choose.

In support of their motion, the defendants pointed to the letters sent to potential witnesses.

According to court documents, on or about Feb. 1, the plaintiff's counsel served discovery responses in which they identified 24 living individuals believed to be co-workers of Abbott.

Abbott, who was diagnosed with mesothelioma, filed a lawsuit against the various manufacturers and suppliers of asbestos-containing products in which he was allegedly exposed to while working for the Tennessee Valley Authority, or TVA.

Also on or about Feb. 1, the plaintiff's counsel sent letters to 17 of the individuals disclosed in discovery.

In these letters, the plaintiff's counsel claimed that speaking with defense lawyers would not be in the best interest of the witnesses or plaintiff; asked the witnesses not to speak with the defense lawyers or any representative of the defense counsel; stated that the defense lawyers would try to trick the witnesses into lying; and asked these witnesses not to provide any affidavits or statements to any defense lawyers.

In such a letter to George Maynor, Rodgers -- along with Guerry, who was CC'ed on all of the letters -- told the man he did not have to speak with defense lawyers.

"Please also note that you are not doing yourself or Mr. Abbott any favors if you voluntarily choose to do so," Rodgers wrote.

"Therefore, if anyone (other than me, someone from my firm, or someone specifically from the Motley Rice law firm) contacts you and tries to ask you questions about Mr. Abbott or your work at TVA, it is my suggestion that you politely but firmly refuse to speak or respond to them. In the long run, this will minimize your time involvement and will help make sure that the testimony you give is the truth."

At the end of the two-page letter to Maynor, Rodgers wrote, "Knowing that you are a friend and/or former co-worker of Mr. Abbott, and knowing (like us) that you want to tell the truth, please do not sign any affidavits or other documentation that you might receive from these lawyers."

Attorneys for the companies argued that the letters were prejudicial to the defendants because they disparage them, their counsel and the discovery process.

"In these letters, Defendants and their counsel are painted as tricksters who will fool these witnesses into giving oral or written testimony that is false," the companies' attorneys wrote.

Circuit Court Judge L. Marie Williams, in an order filed May 19, said the state's Rules of Professional Conduct "expressly prohibits" such communication.

"A lawyer shall not... request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or employee or other agent of the client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information," according to Rule 3.4(f).

Williams, in her five-page order, noted that the judicial system is based on "adversarial interests."

"Each party is to provide zealous representation for its own client. Such representation, however, is tempered by the necessity to prevent unfair and improper tactics being employed," she wrote.

The judicial system, she said, is not a "free-for-all" atmosphere, but rather a "field of fair competition" in which both parties are required to abide by certain rules.

In this case, the actions of the plaintiff's counsel are not as egregious as others, Williams said.

"While it is clear the letter was improper under the guidance of Rule 3.4(f), opposing counsel stated there was no apparent malicious intent or bad faith on the part of Plaintiff's counsel," she wrote.

"Plaintiff's counsel also expressed regret and demonstrated a willingness to work with the court and opposing counsel to mitigate any prejudicial effect the letter may have had."

Sanctions, she said, are not warranted.

"The purpose of sanctions to provide either a general or specific deterrence would not be further served by imposition of sanctions in this case," the judge wrote.

However, the third purpose for sanctions -- to prevent a party from benefiting from improper conduct -- is more complex, Williams noted.

The defendants requested a "blanket prohibition" against testifying be placed on those witnesses who received the letter. The plaintiff's counsel urged the court to be more selective and determine whether there was any "actual harm" from the letter.

Williams said the best option would be to address possible witness prejudice before trial.

Any exclusion of witnesses, she said, would be done on a witness-by-witness basis, and the option of a "strongly-worded" curative jury instruction would be entertained.

"Plaintiff's counsel represented to this Court that he consents to being enjoined, and will not send the letter at issue to any other witnesses," Williams concluded.

"Accordingly, the motion to enjoin is granted, and the issue regarding exclusion of witnesses shall be held in abeyance until further proof is provided prior to or at jury-out hearings at trial."

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

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