Letters from asbestos lawyers ask witnesses to keep quiet

By Jessica M. Karmasek | May 9, 2011


CHATTANOOGA, Tenn. (Legal Newsline) - A group of companies has asked a Tennessee court to bar asbestos attorneys from undertaking "further improper communication" with potential witnesses.

Attorneys for the companies want the Hamilton County Circuit Court to also prohibit the future use of a letter asking witnesses not to speak with defense counselors. Attorneys for the companies filed a motion April 28 in the case of Carl "Smokey" Abbott, who is represented by Jimmy Rodgers Jr. of Summers & Wyatt PC and John E. "Rett" Guerry III of Motley Rice LLC.

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

In the motion, the companies also ask 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 say because they have not engaged 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 point 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 -- who CC'ed Guerry on all of the letters -- tells the man he does 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 speciffically 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 writes, "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."

The companies' attorneys called the letters "prejudicial to Defendants because these letters disparage the Defendants and their counsel and disparage 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."

Joshua Walker, an attorney for Paine, Tarwater & Bickers LLP, who represents Bayer, Certainteed, General Electric, Georgia-Pacific, Industrial Holdings and Union Carbide in the case, says in an affidavit he tried to contact 14 of the co-workers identified by the plaintiff for whom telephone numbers were provided.

Of the 14, he said only three agreed to speak with him. Two refused to speak, three did not return multiple messages, four never answered or had any type of answering machine, one telephone number was not in service and one witness, he was told, was deceased.

"This improper communication and disparagement have tainted these witnesses such that Defendants will never have a fair, unbiased opportunity to discover the fact witnesses' knowledge," the companies' attorneys wrote.

A Motley Rice attorney was recently confirmed as a federal judge. The Senate voted 50-44 to put Jack McConnell on the bench in Rhode Island federal court. McConnell works in the firm's Rhode Island office, while Guerry works in South Carolina.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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