Legal Newsline

Sunday, November 17, 2019

Garlock claimants' expert testifies about 'low hanging' defendants

By T.K. Kim | Aug 7, 2013


CHARLOTTE, N.C. (Legal Newsline) -- Attorneys representing the claimants in Garlock Sealing Technologies ongoing bankruptcy trial Tuesday presented their own expert witness who happened to also be a former asbestos attorney after days of testimony by former Garlock asbestos lawyers.

Paul Hanly Jr., a partner with the firm Hanly Conroy Bierstein Sheridan Fisher Hayes who previously represented the former asbestos manufacturing company Turner and Newall, testified that companies such as Garlock that were sued along with other asbestos manufacturers for years up until around 2000 were forced to the forefront of litigation after lingering on the periphery. Plaintiffs in the 1980s and 1990s used to focus on "low hanging fruit" defendants such as asbestos insulation manufacturers, he testified.

The periphery defendants got a "free ride" by downplaying any of their own potential liability and pointing the finger at the much easier to target insulation companies, he said. Many of these asbestos companies happily adopted the label as a periphery defendant. "It's a self-serving characterization," he said, admitting he adopted the same strategy as well.

The bankruptcy trial, which began two weeks ago at the U.S. Bankruptcy Court for the Western District of North Carolina and is expected to last three weeks, will determine the estimated liability of the company for current and future asbestos claims. One of the central questions that will help establish how much Garlock will owe the claimants revolves around whether Garlock products, many removed decades ago, and no other sources of asbestos, led to cases of mesothelioma.

To try and limit the company's liability, its attorneys are asserting that some plaintiffs, taking advantage of confidentiality provisions enacted for special trusts established to pay claimants who came into contact with asbestos, are using the provisions to allow them to sue multiple defendants while using the same argument that each respectively was the cause of their illness.

Around the year 2000, however, companies that once remained on the periphery were forced to defend themselves directly more and more as the insulation companies that once bore the brunt of the litigation filed for bankruptcy, Hanly testified.

Hanly's testimony followed hours of closed cross examination of a lawyer who previously represented Garlock testifying about the legal strategies the company adopted in dealing with asbestos-related litigation.

Richard Magee, the senior vice president for EnPro, Garlock's parent company, was the former general counsel for EnPro and oversaw much of the Garlock asbestos tort litigation. After offering testimony about the company's strategy handling an onslaught of litigation it faced dating back decades, attorneys for the claimants questioned Magee over the reasons why the company settled the majority of its cases instead of taking them to trial.

Magee said previously that Garlock decided to take a cost-saving approach instead to deal with lawsuits from claimants who came into contact with Garlock products, predominantly Garlock gaskets that contained asbestos. Following about an hour of cross examination, Judge George Hodges closed his courtroom to members of the public and media who had not signed confidentiality forms.

Last Wednesday, Hodges denied a Legal Newsline motion to keep all of the witnesses testifying in this case open including the testimony of former Garlock attorney John Turlik, currently a partner in the firm Segal, McCambridge Singer & Mahoney. Legal Newsline is also seeking to unseal closed portions of testimony given by a law professor the week prior.

In a written order explaining his decision, Hodges stated several factors including the circumstances of certain asbestos plaintiffs' cases, plaintiffs' particular exposures, "how the law firms responded to discovery, the questions they asked their clients in so responding, and how the law firms approached settlement negotiations," amounted to "trade secrets, confidential business information, and attorney-client privileged information about which the parties involved have significant privacy rights. The court has concluded that those rights outweigh the public's interest in those matters."

Attorneys for Legal Newsline are preparing to seek review of the judge's decision.

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