Del. SC vacates $25K sanction against asbestos attorney Crumplar

DOVER, Del. (Legal Newsline) - The Delaware Supreme Court has overturned the sanctions imposed on an asbestos attorney by a Superior Court judge frustrated with the size of the asbestos docket.

Judge Peggy Ableman sanctioned Wilmington attorney Thomas Crumplar of Jacobs & Crumplar in October 2011, imposing a $25,000 penalty while complaining that lawsuits from out-of-state plaintiffs were clogging the superior court in New Castle.

Crumplar had written that arguments made in a defendant's motion for summary judgment were already denied in another case, but that case had actually been settled before a decision had ever been made on those arguments.

Ableman said she was too busy with an approximately 500-case asbestos docket to tolerate the mistake, to which Crumplar admitted but argued he committed in good faith.

"The Superior Court judge, although motivated by understandable frustration compounded by the demands of a large docket, sanctioned an attorney on her own initiative supported only by 'cold' papers, and imposed a large fine without inquiring into the attorney's ability to pay," the state Supreme Court wrote Monday.

"These procedural shortcomings did not provide Crumplar with the 'reasonable opportunity to respond,' to which he was entitled."

The case Crumplar mistakenly cited was McNulty v. Anchor Packing Co. It was done in response to a motion for summary judgment filed by County Insulation.

He said his firm has filed at least 131 cases against County Insulation and that McNulty "seemed to be the most likely case."

Two days later, Crumplar wrote the court to inform it that he found the intended case - Opalczynski v. County Insulation. He did so after having a conversation with defense counsel.

"In essence, plaintiffs' counsel's response to the order to show case asks this court to excuse his conduct because, in a nutshell, he's done it before, apparently without consequences," Ableman wrote. "The court need not belabor the inappropriateness of this argument.

"Even if the court takes plaintiffs' counsel at his word - that he did not intentionally misrepresent the result of the McNulty case - there is no place in this complex and demanding litigation for any attorney to file papers without confirming the accuracy of authority upon which an attorney clearly intends the court to rely.

"At best, it demonstrates an unjustifiable laziness in carrying out the duties of an attorney. At worst, counsel's actions evidence an intent to mislead the court in the hopes that it would indeed be misled and thereby rule in his favor."

The ease with which Crumplar discovered the correct case - "after only an afternoon's worth of work" - shows that he made no initial effort, Ableman said.

"While ($25,000) may, at first blush, appear arbitrarily excessive, it is not when compared to the relatively high verdicts and settlements that are customary in these lawsuits," Ableman wrote.

The state Supreme Court also said Ableman's sanctions appeared to be based on her concern that Crumplar's behavior would cause her problems in future cases.

"Crumplar's incorrect case citation for an otherwise accurate statement, in a single paragraph of a response to a motion he nevertheless lost, did not adversely affect the integrity of the proceeding," it said.

"The record does not support the judge's finding that it 'tainted the fairness and efficiency of the adversarial process.'"

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