John O'Brien Aug. 12, 2015, 12:36pm


FRANKFORT, Ky. (Legal Newsline) – While Garlock Sealing Technologies pursues racketeering claims against four asbestos law firms in federal court, it is hoping a Kentucky appellate court reinstates another of its lawsuits alleging gamesmanship by a plaintiffs firm.

Garlock is currently waiting on the Kentucky Court of Appeals to decide the fate of a lawsuit it filed over the nearly $700,000 asbestos case of Thomas E. Robertson, whose estate was represented by the former Louisville firm Sales, Tillman, Wallbaum, Catlett & Satterley. In 2013, a judge ruled Garlock’s complaint came after the statute of limitations had expired and that it had not stated a fraud claim.

Garlock’s complaint, filed in 2012 in Jefferson County Circuit Court, alleges attorneys waited until they had secured the verdict to begin submitting claims to bankruptcy trusts designed to compensate asbestos victims. The Court of Appeals heard oral arguments in February.

“(Delores) Robertson and/or her attorneys knew of the decedent’s exposures to asbestos-containing products manufactured by Quigley, Flintkote, Mines and Grace before the jury trial… and in such time that Robertson could have seasonabley supplemented her (answers to defendants’ interrogatories),” the complaint says.

“Robertson and/or her attorneys, however, did not disclose these exposures.

“Robertson’s failure to disclose the exposure evidence then known to her and/or her attorneys regarding the decedent’s exposures to asbestos-containing products… constituted knowing concealment.”

Garlock’s past efforts to show asbestos plaintiffs attorneys regularly withheld their clients’ trust claims – thereby placing more blame on Garlock in civil lawsuits – resulted in a landmark 2014 ruling by bankruptcy judge George Hodges.

Hodges ruled that past settlements and verdicts would not be indicators of Garlock’s future liabilities because of the actions of plaintiffs attorneys.

So Hodges ruled in January 2014 that Garlock, which is going through the bankruptcy process, should put $125 million in its trust – more than $1 billion less than plaintiffs attorneys had requested. A settlement of $368 million has since been proposed.

Garlock was allowed full discovery into 17 cases to make its case. Days before Hodges' ruling, Garlock filed racketeering cases against the firms that handled those cases.

“It appears certain that more extensive discovery would show more extensive abuse,” Hodges wrote. “But that is not necessary because the startling pattern of misrepresentation that has been shown is sufficiently persuasive.

“While it is not suppression of evidence for a plaintiff to be unable to identify exposures, it is suppression of evidence for a plaintiff to be unable to identify exposure in the tort case, but then later to be able to identify it in Trust claims.”

Garlock is attempting to prove the same type of activity occurred in the Kentucky case, but the defendants say the company is minimizing key facts about the case.

In the complaint, Garlock claims Delores Robertson, the executrix of Thomas Robertson’s estate, did not identify any asbestos-insulation or asbestos-product manufacturer except for Garlock.

Robertson also replied that her counsel “has not submitted any claims at this time,” in response to a pre-trial interrogatory from a defendant in the case.

Five months prior to the start of the trial, though, her attorneys submitted a claim to the Quigley Company trust, the complaint says. Quigley had produced the asbestos-containing product Insulag.

Garlock, meanwhile, continued to file third-party complaints against other companies that it argued should be liable for a percentage of the fault for causing Thomas Robertson’s illness.

The jury was ultimately not allowed to apportion any fault to the bankrupt companies. Garlock was found 25 percent liable, and $400,000 in punitive damages was also assessed against it.

“In the months immediately following the Jefferson Circuit Court’s entry of judgment, Robertson’s attorneys repeatedly swore under penalty of perjury in filings in various bankruptcy proceedings that Thomas E. Robertson had been exposed to asbestos from products manufactured by certain bankrupt entities,” the complaint says.

“As she had done concerning Quigley Company before the trial, Robertson had failed to identify these bankrupt entities in response in Answers to Interrogatories, answers that had professed a lack of any specific knowledge about the decedent’s exposures.”

Those claims were submitted to the Flintkote Company and Flintkote Mines, as well as W.R. Grace & Co.

Attorney Kevin Burke and colleagues at the Poppe Law Firm in Louisville argue in response that none of the bankruptcy ballots were cast before Robertson answered the interrogatories and that her attorneys objected to production of any bankruptcy filings or ballots.

“Garlock’s petition also fails to mention when Garlock first learned of the bankruptcy ballots – the last ballot having been cast in 2009 – or why Garlock waited nearly three years after the last ballot, and over three-and-a-half years after final judgment to file for… relief,” Robertson’s appellate brief says.

“Finally, Garlock fails to explain why, in light of the objection posted in interrogatory answers and Garlock’s apparent affinity for collecting bankruptcy reorganization ballots, Garlok did not investigate, follow up, or move to compel production of that information before trial.

“Ms. Robertson’s discovery responses were accurate in 2007 and continue to be today. Ms. Robertson has not fraudulently concealed anything.”

Jefferson Circuit Judge McKay Chauvin ruled in 2013 that the complaint should have been filed within one year of the judgment. He also said that even if the allegations were true, Garlock was never denied a full and fair opportunity to investigate Robertson’s claims.

“As such, the conduct complained of, even if ‘fraudulent,’ neither affected the proceedings nor subverted the integrity of the judicial process,” he wrote.

From Legal Newsline: Reach editor John O’Brien at jobrienwv@gmail.com.

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