Del. judge frustrated with docket, tees off on asbestos attorney

John O'Brien Oct. 31, 2011, 6:16pm



NEW CASTLE, Del. (Legal Newsline) - In slamming the actions of an asbestos attorney and imposing a $25,000 penalty on him, a Delaware judge said last week that lawsuits from out-of-state plaintiffs are clogging her court.

Judge Peggy Ableman wrote Friday that the Delaware Superior Court in New Castle County is too busy with its approximately 500-case asbestos docket to tolerate mistakes like the one made by Wilmington attorney Thomas Crumplar, of the firm Jacobs & Crumplar.

Ableman says the entire docket is assigned to one judge who has only one law clerk.

"Adding to this scenario is the complication that the vast majority of the plaintiffs have no connection to Delaware, requiring this court to research and apply the laws of 50 jurisdictions, as well as maritime law," Ableman wrote.

"To suggest that these cases have taxed the limited resources of this court is a huge understatement. In a world, they require Herculean efforts on the part of the court to render swift justice."

Because of this, Ableman had no patience for the mistake made by Crumplar.

In a response to a defendant's motion for summary judgment, Crumplar wrote that the court had already denied the arguments made in County Insulation's motion for summary judgment in another case. The case cited was McNulty v. Anchor Packing Co.

County Insulation's attorneys countered, alerting the court that McNulty was settled before the court ruled on the motion for summary judgment. Ableman then asked Crumplar to show why he shouldn't be subjected to sanctions.

On Aug. 1, Crumplar admitted he was wrong but said he made the mistake in good faith. He said his firm has filed at least 131 cases against County Insulation and that McNulty "seemed to be the most likely case."

Two days later, Crumplar wrote the court to inform it that he found the intended case - Opalczynski v. County Insulation. He did so after having a conversation with defense counsel.

"In essence, plaintiffs' counsel's response to the order to show case asks this court to excuse his conduct because, in a nutshell, he's done it before, apparently without consequences," Ableman wrote. "The court need not belabor the inappropriateness of this argument.

"Even if the court takes plaintiffs' counsel at his word - that he did not intentionally misrepresent the result of the McNulty case - there is no place in this complex and demanding litigation for any attorney to file papers without confirming the accuracy of authority upon which an attorney clearly intends the court to rely.

"At best, it demonstrates an unjustifiable laziness in carrying out the duties of an attorney. At worst, counsel's actions evidence an intent to mislead the court in the hopes that it would indeed be misled and thereby rule in his favor."

The ease with which Crumplar discovered the correct case - "after only an afternoon's worth of work" -- shows that he made no initial effort, Ableman said.

"While ($25,000) may, at first blush, appear arbitrarily excessive, it is not when compared to the relatively high verdicts and settlements that are customary in these lawsuits," Ableman wrote.

"Since the verdicts and settlements are typically in the millions of dollars, the contingency counsel fees generated by them (often as high as 40 percent) render the amount the court has chosen to impose to be rather conservative. Hopefully, it is at least sufficient to achieve some deterrent effect."

Ableman concluded that Crumplar's conduct was particularly egregious because the court is routinely confronted with thousands of pages of reading.

"Perhaps more so than in any other litigation before the Superior Court, it is critical that the court be able to rely upon the statements and representations of attorneys as officers of the court," she wrote.

"Even if the sanction impose here has its expected deterrant effect, it will still be difficult for the court to accept counsel's future filings without affording the extra scrutiny that his conduct now demands."

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