Judge had 'blatant' conflict on $322M asbestos case, company says

By John O'Brien | May 18, 2011


RALEIGH, Miss. (Legal Newsline) - Union Carbide says the judge on a record-breaking asbestos lawsuit excused jurors with family ties to asbestos suits but did not reveal his own.

Union Carbide has requested a $322 million verdict -- the largest in America's asbestos litigation history -- be vacated and Smith County, Miss., Judge Eddie Bowen recuse himself from the case. Last week, attorneys for the company discovered that Bowen's father filed two asbestos lawsuits in state courts in 1989 and 1992.

On the still-pending second, his attorney was now-incarcerated plaintiffs attorney Richard "Dickie" Scruggs, who has pleaded guilty to two judicial bribery schemes. Union Carbide, on the hook for half the verdict with Chevron Phillips Chemical facing the other, investigated the matter after Bowen made a few "casual, off-the-record," remarks during the trial.

"Indeed, because the court did not reveal any individual or familial connection to asbestos litigation prior to trial required by the Judicial Canons, it did not occur to Union Carbide Corporation... that the existence of such a blatant conflict of interest was even a possibility in this case," the motion says.

"This is especially true in light of Judge Bowen's own rulings on bias, undue influence and partially with respect to potential jurors who have personal or first-degree familial connections to asbestos litigation."

More than 1,100 citizens of Smith County were summoned as potential jurors for the case. Jury panel members who had connections to asbestos litigation through immediate family members were excused by Bowen because of a potential for bias.

After a three-week trial, jurors awarded $300 million in punitive damages to Thomas Brown, who also received $22 million in actual damages. He was represented by the Hossley Embry law firm of Dallas and Tullos & Tullos of Raleigh.

Like Bowen's father, Brown claimed asbestos products were defective in design and in warning, the motion says. Bowen's father and mother settled their claims with many defendants, including Union Carbide, after requesting $1 million in the complaint.

"The basis of the judge's family claims against Union Carbide was the judge's father's alleged exposure to Calidria Chrysotile asbestos fiber mined, milled and manufactured by the company," the motion says. "Plaintiff Brown likewise alleged exposure to the exact same Calidria chrysotile asbestos (mined from the same source and milled in the same manner) as the judge's father."

Bowen's father also sued Johns Manville, which was the asbestos supplier for CP Chem.

The state Constitution shows three instances for the disqualification of a judge, one of which is any matter "where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties."

The motion says, "Recusal here is warranted by the constitutional, statutory and canonical standards cited above as established by the facts and circumstances identified herein, as well as the actual bias and prejudice demonstrated by Judge Bowen against Union Carbide Corporation and CP Chem throughout the course of the trial."

The company claims Bowen acted with bias against it in several ways:

-His demeanor toward certain attorneys and witnesses;

-His rulings on evidentiary issues;

-His comments about the weight of the evidence;

-His coaching of the plaintiff's attorneys in their examination of witnesses and with regard to objections; and

-His rulings that were "simply incongruous with clear principles of Mississippi law."

"Put simply, the Mississippi Supreme Court has held that when a reasonable person knowing all of the facts and/or considering the totality of the circumstances might harbor doubts about the judge's impartiality, then recusal is appropriate, necessary and required," the motion says.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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