WASHINGTON (Legal Newsline) – A company upset about how much it is forced to fund an asbestos trust is accusing the attorney who has taken $85 million in settlements from it of filling in the blanks for his clients.
Honeywell International, as a former parent company who funds its trust on an evergreen basis, recently stepped into the bankruptcy proceedings of North American Refractories Company (NARCO). The NARCO trust, like dozens of others created by once-popular defendants in asbestos lawsuits, was established to pay claimants in a more expedient and less costly manner than litigation.
In September, Honeywell filed its complaints that the NARCO trust is paying millions of dollars to claimants who do not have credible evidence of exposure to NARCO products. A return to accepting simple form submissions from claimants has created a windfall for lawyers, the company says.
A recent subpoena targets Maryland asbestos lawyer Peter Nicholl, who has earned more than $85 million for his clients from the NARCO trust, Honeywell says.
But Nicholl’s clients are remarkable for their pristine memory of NARCO products at their worksites decades earlier, the company claims.
“Nicholl’s form affidavits are not ‘credible’ or ‘competent’ evidence, however, as it is not possible that thousands of claimants – working at different sites, in different jobs, in different industries, and in different time periods – all were exposed to NARCO asbestos-containing products in the same precise manner and all had the very same recollection of that exposure (from as much as 50 years ago), including the packaging the product came in and the trade name of the product.”
In 2006, the judge overseeing NARCO’s bankruptcy found only 2.6% of claimants could identify a specific NARCO product, but in the years since, almost 100% of Nicholl’s clients have been able to conjure memories of the specific NARCO product they say they were exposed to, Honeywell argues.
"The submission of inaccurate exposure evidence like this is, according to the Department of Justice, a problem being faced in the tort and asbestos trust system generally," the company says.
Honeywell is upset the NARCO trust went back to taking simple form submissions from asbestos claimants, despite concerns that arose in 2015 that claimants will blindly sign those forms even if the exposure language is not offered by them.
Since the trust began accepting forms again, Nicholl has made $46 million in two years, Honeywell says. The company’s litigation filed in September seeks to end the acceptance of forms, and it says it needs information from Nicholl to prove its case.
Honeywell seeks other materials submitted by Nicholl claimants who recovered from NARCO to other trusts or defendants in litigation. The company is hoping to compare the allegations of exposure made in those claims and lawsuits to those made to the NARCO trust.
“(T)hese requests seek documents to demonstrate the lack of credibility of Nicholl’s form affidavits and thus, to support Honeywell’s claim that the Trust should not pay Nicholl claimants relying on form affidavits,” a Dec. 6 motion to enforce the subpoena says.
“Insofar as the subpoenaed documents reveal additional inconsistencies with the boilerplate exposure allegations contained in the Nicholl form affidavits submitted to the Trust, it will buttress Honeywell’s claim that the Trust should have required claimants (then and now) to submit their other tort filings before accepting their form affidavits as ‘credible’ or ‘competent’ evidence.”
Another request made in the subpoena is information submitted to the auditor of the trust and Nicholl’s communications “which the auditor relied upon almost exclusively to override concerns about material inconsistencies in Nicholl’s claim filings.”
Honeywell is represented by Michael Nadel, John Calandra and Guyon Knight of McDermott Will & Emery. Judge Thomas Agresti of the Western District of Pennsylvania is presiding over Honeywell’s September litigation, and the company would like the motion to enforce its subpoena transferred by the District of Columbia to him.
Nicholl has not yet responded in court to Honeywell's filing.