VISALIA, Calif. (Legal Newsline) – A California car dealership is criticizing settlement practices by the Keller, Fishback & Jackson law firm in a malicious prosecution lawsuit that alleges the firm refused to release the dealership from an asbestos wrongful death case despite having no evidence proving causation or liability.
Plaintiff Tulare Sag, Inc., a California corporation doing business as Lampe Dodge-Chrysler-Jeep, filed the lawsuit in the Superior Court of the State of California for the County of Tulare against the Keller, Fishback & Jackson law firm, Stephen M. Fishback, Diran H. Tashjian, J. Bruce Jackson, and Does 1 through 25.
Michael J. Lampe of the Law Offices of Michael J. Lampe represents the plaintiffs in this case and recently stressed in an interview what he says were disturbing settlement practices in the original asbestos lawsuit.
“In my view,” Lampe said, “it rises to the level of probably criminal activity.”
In Lampe Dodge’s malicious prosecution lawsuit, it argues the defendants did not “honestly and reasonably” believe there were grounds for the actions alleged in the asbestos lawsuit.
“The defendants acted maliciously in prosecuting the asbestos case against Lampe, in that they held the specter of a multi-million dollar damage award over Lampe in a case where Lampe had no actual liability to the [asbestos] plaintiffs, repeatedly demonstrated that it had no liability to plaintiffs, and would not accede to the defendants’ demands to settle the Hardeman action,” the amended complaint states.
Lampe Dodge also alleges Keller Fishback failed to notify the claimants of several settlement offers by Lampe in the asbestos case.
Claimants Johann Hardeman, Tyne Harold Hardeman and Michael Todd Hardeman stated that they were unaware of any settlement offers while the case was being litigated.
Additionally, Lampe Dodge alleges Keller Fishback failed to notify the Hardemans that the asbestos case had been set for trial and that their presence was required.
Ultimately, the Hardemans filed a lawsuit against Keller Fishback with Lampe serving as their counsel.
As a result, Lampe sought access to the Hardemans’ settlement information with their approval, which he says was met with multiple failures by the Keller Fishback law firm to produce the files at the request of their former clients.
Keller Fishback complied after the Hardemans filed complaints with the State Bar of California. However, the files were in a sealed package with a cover letter warning Lampe not to review any documents as it was “the subject of confidentiality provisions, which Keller, Fishback & Jackson LLP wish to maintain. Thus, you are not authorized to open and/or review this material.”
“This attempt at intimidation did not work, and upon review of the contents of the sealed package, it is obvious why Keller Fishback and its defense lawyers did not want me to see the settlement distributions,” Lampe said.
After a lengthy battle with the Keller Fishback firm, Lampe said he finally received the Hardeman files from the law firm in May 2012 detailing how settlement funds were distributed.
Lampe says the asbestos attorneys settled claims by grouping the Hardemans' asbestos case with unrelated claims alleged by other Keller Fishback clients and then “distributing the proceeds in a manner solely determined by Keller Fishback.”
Lampe Dodge alleged the Hardemans were unaware that their claims had been bundled and settled, allowing the law firm to assign more settlement proceeds to other clients.
For example, Lamp described one instance when Keller Fishback negotiated a group settlement for 11 separate plaintiffs with a defendant for $275,000, but only reported a settlement in the amount of $50,000 to the Hardemans.
Lampe questioned why Keller Fishback would report a $50,000 settlement to plaintiffs in a weak case when it was still owed costs unless the claimants were concerned about the distribution of their settlements.
“It is interesting to note that prior to reporting this $50,000 settlement (and not disclosing the bundled settlement of $275,000), the Keller Fishback firm had received five other settlements totaling $77,500, all of which the lawyers paid themselves for attorneys fees and costs allegedly incurred, and none of which was paid to the Hardemans,” Lampe explained.
“This is precisely why the law doesn’t allow … lawyers to make these decisions on behalf of the clients,” he added. “You can’t just divide the money up however you want. Obviously the potential for abuse there is quite high.”
More specifically, Lampe said that while a settlement summary appears as though the Hardemans received $28,934.95, the sum is “highly misleading.”
He explained that the total is particularly misleading because two awards made in November 2011 were distributed after Lampe Dodge filed its lawsuit against the Hardemans for malicious prosecution and more than $22,000 in costs still remained to be paid.
The Hardemans were originally named in this case after Lampe Dodge sent several letters to Keller Fishback suggesting a possible lawsuit if the dealership wasn’t dismissed from the case, about which the Hardemans had no idea.
“In willful and conscious disregard for the rights of Lampe, their own clients, and the public in general, the defendants have created a business model that benefits them at the expense of their own clients and the public at large, including Lampe,” the amended complaint states.
Lampe added that he can’t believe Keller Fishback would pay awards to the Hardemans at a time when it claimed unpaid costs exceeding $22,000 unless it had a “public relations disaster on its hands.” He said the firm must have distributed the awards after the Hardemans began asking tough questions upon discovering they were being sued.
Furthermore, Lampe pointed out in the settlement summary that the Hardemans didn’t receive any distribution of awards until the seventh settlement agreement.
“If you really follow the money on this thing, you really begin to see how the process has been manipulated to the advantage of the lawyers and the disadvantage of the clients,” he said.
Lampe Dodge stated that the Hardemans recovered a total of $165,750 from all 43 defendants in the asbestos suit.
“If there’s 43 defendants and the best you can get in a wrongful death case is $165,750, that tells you right of the back it’s a pretty crappy case. It’s a nuisance case,” Lampe said.
Of that amount, at least $96,700 was paid to the Keller Fishback law firm for costs and another 40 percent was set aside for legal fees, the complaint states.
“Adjusting the total would have actually been paid to the Hardemans but for this attempt to placate some understandable angry clients, the amount that the Hardemans would have received is reduced to $21,157.95,” Lampe explained. “This computes a mere $492.05 for each of the 43 defendants named in the lawsuit – hardly anything to brag about.”
Lampe claims that some of Keller Fishback’s alleged costs were either inflated or nonexistent.
“This business model, and the conduct engaged in by the Keller Fishback defendants, especially as it relates to Lampe Dodge, amounts to nothing short of a shake down, and is despicable conduct that would be looked down on and despised by reasonable people, and justify an award of punitive damages,” the amended complaint states.
The complaint arises out of a 2007 asbestos wrongful death case, where the defendants served as counsel for asbestos claimants, who filed the underlying suit against 43 defendants for the alleged death of Leonard Hardemant as a result of asbestos exposure.
Lampe Dodge was named a defendant in the underlying asbestos case, with 15 separate causes of action asserted against it.
During trial in August 2011, the Keller Fishback law firm admitted its client had no evidence to support the original theory of liability against Lampe Dodge alleged in the asbestos complaint, the amended complaint explains.
Instead, Lampe said Keller Fishback admitted it didn’t have any evidence in 13 of the 15 claims asserted in the complaint and wanted to allege successor liability on implies assumption rather than its prior allegations.
As a result, the trial court dismissed the case, calling it a “little cat and mouse game.” The judge noted that the parties had been in the case for more than three years and failed to address its successor liability theory until trial.
The case is currently at a standstill as the parties negotiate potential mediation.
Lampe said he is have a difficult time scheduling depositions with Keller and Fishback. As a result, Lampe met with Marshall Whitney, attorney for the defendants, to discuss the possibility of mediation without doing any depositions.
“I don’t know whether or not we will reach an agreement at the end of the day,” Lampe said. “We’re close.”
The current mediation date is scheduled for January. If it is unsuccessful and an agreement is not met, the trial date will be continued, a Special Master will be appointed as a “discovery referee” and depositions will be scheduled.
From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com
Settlement practices of asbestos attorneys 'probably criminal activity,' attorney says
