Heather Isringhausen Gvillo Sep. 11, 2014, 2:33pm

WILMINGTON, Del. (Legal Newsline) – A Delaware judge has fined the Napoli law firm for failing to disclose a client's asbestos exposure filings for more than a year.

At a summary judgment hearing on Sept. 4 in the Superior Court of the State of Delaware, Judge Paul R. Wallace ruled that asbestos bankruptcy trust claim forms and affidavits filed by the Napoli, Bern, Ripka & Shkolnik law firm in the Rivera v American Biltrite Co. lawsuit are considered admissions that the claimant was exposed to products from each trust with which she filed a claim and that the exposure was a substantial contributing factor to her asbestos-related injury.

It appears that a separate law firm was handling the bankruptcy trust work, but the parties were not communicating with one another. Wallace concluded that the plaintiff’s counsel is expected to ensure that all relevant information is brought forward.

“It seems to me,” Wallace said, “that each firm has a professional duty to ensure that when it answers discovery that it does its due diligence to ensure that that discovery is correct; and it’s not simply enough to say, ‘Gosh, we didn’t know what the other firm was doing or that she has another firm, even, that was doing bankruptcy trust work.’”

As a result, Wallace required the Napoli firm to provide the information to a jury if a jury trial commences. He also fined the firm $1,000 for failing to produce the documents establishing additional exposure on time, causing the defense to file a motion to compel.

“That information sat out there for quite a bit,” Wallace said. “There was a deficiency in performing and answering those fully, and so that assessment will be a $1,000 for the cost of bringing the motion on behalf of all defendants in this case.”

The Napoli firm allegedly failed to timely produce bankruptcy trust claim forms in the case. The firm eventually filed the documents before the claimant’s deposition but did not disclose the claims for more than a year.

As a result, the defendants filed a motion to compel in July. The claimants responded by producing the trust claim forms, including affidavits executed by the plaintiff.

The claimant died before the defendants had an opportunity to depose her on the various claims filed with the bankruptcy trusts.

A motion for sanctions followed.

Wallace explained that as of October 2012, all information available in the case, including trust claim filings, should have been produced.

One month after the documents should have been submitted, the court discovers that affidavits indicate the claim forms were being supplemented, but by that time, additional medical records had been gathered on the claimants.

Wallace said that even if everything was filed by July 2013, the information would still have been “hanging out there” for a year before disclosure occurred. He added that the information should have been provided when the standing order was filed, but it wasn’t “brought to bear” until the defendants filed a motion to compel in July 2014.

Wallace determined that the claim forms and affidavits will be considered admissions by a party opponent, and will be considered as evidence despite the claimant’s death. He said the documents admit that the claimant was exposed to each of the entities that she made a claim against and the exposures were substantial contributing factors in causation.

He ordered the parties to provide a written stipulation that each of the exposures occurred and that the claimant admits they were substantial contributing factors to her developing lung cancer.

“My hope is, is that the diligence that’s required to start to bring this information more quickly would be helpful because it doesn’t help anybody to have to deal with it this way and deal with stacks of paper,” Wallace said, “but I think that’s the fairest way to deal with it in this particular case.”

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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