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Wis. court erred when it refused to consider lengthy briefs filed minutes before deadline, appeals court rules

By Heather Isringhausen Gvillo | Aug 28, 2014

MILWAUKEE (Legal Newsline) – A Wisconsin appeals court has held that a lower court acted erroneously when it refused to even consider an asbestos decedent’s summary judgment opposition briefs that were filed just minutes before the deadline and were each several pages over the allowed limit.

Judge Ralph Adam Fine of the Wisconsin Court of Appeals, District 1, delivered the July 15 opinion with judges Joan F. Kessler and Kitty K. Brennan concurring.

The plaintiffs appealed orders by Judge Jeffrey A. Conen of the Circuit Court for Milwaukee County, granting summary judgment to 16 defendants.

The plaintiffs argued that the court erroneously refused to consider the summary judgment materials they submitted because they were either too long or filed a few days late.

The appeals court reversed the summary judgment award for all defendants except Rockwell Automation and Lennox Industries and remanded the case back to the circuit court with directions to consider the plaintiffs’ summary judgment materials.

Decedent George Gregovich was diagnosed with mesothelioma as a result of asbestos exposure and died from his injury 18 months after filing his lawsuit.

His family were entered as plaintiffs on the decedent’s behalf.

All 16 defendants named in the case requested summary judgment. The plaintiffs’ responses to the motions were due on Jan. 4, 2013. Just minutes before the courthouse closed at 5 p.m. on Jan. 4, Gregovich’s counsel hand-delivered the response briefs, affidavits and supporting materials opposing the summary judgment motions, which amounted to thousands of papers.

However, he failed to supply the required materials for three of the 16 defendants. Instead, he served those materials on Jan. 7, 2013.

All but one of the filed briefs exceeded the page limit required by the Milwaukee Circuit Court, which states that briefs supporting or opposing a motion may not exceed 25 pages in length.

Then on Jan. 8, 2013, the court said it would be disregarding the plaintiffs’ lengthy response briefs.

As a result, the decedent’s counsel tried to file amended responses on Jan. 9, 2013, but the court refused to accept them.

Instead, the court said it would address the plaintiffs’ request to file amended briefs at a motion hearing, which was also scheduled to address the defendants’ summary judgment requests.

During the hearing, the court admitted that it had not read any of the materials supplied by the plaintiffs.

“I haven’t read them because they exceeded the page limit,” the judge said. “And let the record reflect, that they did not exceed the page limit by three words or half-a-page. The least offensive was three pages, and there was only one, and the most offensive was 12 pages or 14 pages; and you multiply that by 10 defendants and that’s an extra hundred pages … So at three minutes to 5:00 on Jan. 4, when somebody walks in the door with 3,000 pages of documents to file with the court, obviously, the court is not terribly pleased.”

The court then proceeded to consider the summary judgment arguments without any input from the plaintiffs’ counsel, granting the requests for all of the defendants and dismissing Gregovich’s claims.

The plaintiffs appealed.

The appeals court explained that precluding a party from being heard requires a showing that the party acted egregiously or in bad faith.

“Even when Gregovich amended the briefs to remove the repetitive ‘factual background’ and ‘standard of review’ that he had included in an attempt to be helpful to the circuit court that brought the briefs well within the local rule page limitation, the circuit court refused to change its ruling, noting that it did not know that the facts and standard-of-review sections were all the same because it had not read them,” Fine stated.

Then when the plaintiffs’ counsel asked to argue against the summary judgments based on the supplied affidavits, which did comply with the page limit, the circuit court refused, saying it was “not going to sit here all day long.”

“The circuit court’s refusal to consider the bulk of Gregovich’s contentions in effect granted default to the defendants, thereby shutting the courthouse door to fair consideration of most of Gregovich’s claims,” Fine wrote.

“Although we sympathize with the circuit court’s attempt to deal with its workload, any burden imposed by the late submission of materials could have easily been ameliorated by an adjournment of the summary judgment hearing.”

The appeals court concluded that nothing presented “even hints” that the plaintiffs’ counsel’s mistakes were either egregious or made in bad faith.

Therefore, the appeals court held that the circuit court erroneously exercised its discretion when it refused to consider the plaintiffs’ summary judgment materials.

The orders dismissing the defendants were reversed and remanded to the circuit court with directions to allow the plaintiffs to file summary judgment materials for the three defendants that were previously field a few days late.

The lower court is also required to consider all of the plaintiffs’ summary judgment materials submitted.

As for summary judgment for Rockwell, the circuit court did allow the plaintiffs’ counsel to argue its opposition in relation to the defendant at the hearing. Because the court listened to the arguments before granting summary judgment, the order was affirmed.

Summary judgment was also affirmed for Lennox because the allegations against the defendant were “wholly insufficient to connect Lennox’s asbestos-containing products to Gregovich and his mesothelioma.”

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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