LOUISVILLE, Ky. (Legal Newsline) – A Kentucky judge has termed the actions of an asbestos plaintiffs firm as “disingenuous” and “disturbing” in declaring a mistrial.
Court records show that lawyers at the Louisville, Ky., firm Satterley & Kelley had begun the process of submitting a claim for one of their clients to the Johns Manville bankruptcy trust, which was created to compensate victims of asbestos.
However, when defense attorneys fighting the lawsuit filed on behalf of the client called out the firm for previously denying a claim existed, the sides engaged in a debate on when a claim becomes official, since Satterley & Kelley had not yet officially submitted the claim to the Manville Trust.
“Well, I cannot get by a claim number,” Judge Judith McDonald-Burkman said at a July 23 hearing in Jefferson County Circuit Court.
“You know, you’re pregnant or you’re not. You submitted a claim or you didn’t. And that’s the problem I have.
“I have nothing, other than this information, which shows pretty good detail on a claim, and I think an argument that it wasn’t submitted, ‘I didn’t sign anything,’ is disingenuous. I think it’s disturbing.
The dispute began on the third day of trial in a lung cancer lawsuit filed on behalf of the late William Gale Cummings. Attorneys for General Electric brought it to McDonald-Burkman’s attention that they had submitted interrogatories in 2014 to the plaintiffs attorneys asking if they had submitted any claims to any bankruptcy trusts.
In response, the plaintiffs attorneys replied that they hadn’t. The defense attorneys then asked for production of any claims forms that had been filed, and the plaintiffs responded that there weren’t any.
A letter on Dec. 16 from Paul Kelley, of Satterley & Kelley, said he had no claims forms to add, and if there were any in the future, he would send them to the defendants.
During the trial, the defendants checked with the Manville Trust and found an “unperfected claim” that was filed more than a year earlier.
“Your Honor, we were entitled to know about this. This case would have been practiced differently,” attorney Gregory Gowen of Fultz Maddox Dickens said.
“They’ve come into this forum and said these particular defendants are responsible for Mr. Cummings’ disease and have asked for millions of dollars.
“In another forum, which they attempted to keep secret from everybody, including Your Honor, they’re now asking for money from a different entity.”
Plaintiffs attorney Joseph Satterley called the defendants’ stance “outrageous.”
Kelley added, “(T)he claim hasn’t been filed. These documents right here are documents that do not demonstrate what they want Your Honor to believe, though the problem is that they don’t understand the process and the documents don’t explain the process.”
Kelley continued that at some point, his firm filled in “some information” on Cummings’ claim on the Manville Trust website but did not click submit.
“It is not a filed claim,” he said. “Manville will not pay this claim. Manville will not consider this claim. Manville will not look at this claim.”
Kelley said no effort had been made to misrepresent anything to the court.
Information entered on the claim alleged Cummings had six months occupational exposure to Manville asbestos products prior to 1983.
“I believe from the information the court has, a claim was submitted,” McDonald-Burkman said. “Whether it’s in a limbo status, whether it is deferred or whatever words we want to use, it’s pending.”
An affidavit being prepared for an employee of the Claims Resolution Management Corporation, however, will say, “Incomplete forms are not considered claims.”
“Well, I’m a simple person,” McDonald-Burkman countered. “When I see a date received, claim ID, claim filed, a claim, I take it literally that it was filed.”
The judge scheduled a new trial in January. The defendants are now allowed to re-depose several witnesses.
Similar conduct on the part of asbestos plaintiffs attorneys was alleged in a North Carolina bankruptcy court that issued a landmark decision in 2014.
Garlock Sealing Technologies, during the process in which it is creating its bankruptcy trust, alleged that plaintiffs attorneys had been withholding the filing of trust claims until the resolution of lawsuits against it.
That way, Garlock claimed, the attorneys could maximize recovery against Garlock while still also obtaining funds from the bankruptcy trusts.
Judge George Hodges ruled Garlock’s settlement and verdict history in civil courts had been tainted after receiving evidence in 17 lawsuits.
“It appears certain that more extensive discovery would show more extensive abuse,” Hodges wrote. “But that is not necessary because the startling pattern of misrepresentation that has been shown is sufficiently persuasive.”
Racketeering lawsuits filed by Garlock against a handful of plaintiffs firms are pending.
From Legal Newsline: Reach editor John O’Brien at firstname.lastname@example.org