ERIE, Pa. (Legal Newsline) – The names of asbestos claimants will be redacted when a trial gets started in Pennsylvania federal court that will determine if millions of dollars have been rightfully handed out.
But, federal bankruptcy judge Thomas Agresti wrote May 12, after the trial, concerned insurance companies will be able to ask for access to redacted material submitted into evidence.
“Based on its conclusion that none of the material in question is a judicial record, at least not yet, the court finds… the limited intervenors do not have a common law right of access to any of it as of this time and therefore at best their objections are premature,” Agresti wrote.
It’s part of a fight between companies that pay asbestos claims and the lawyers and clients who receive those funds, as Honeywell International and insurers try to establish if asbestos attorneys are submitting fraudulent and inconsistent injury claims.
Honeywell funds the NARCO bankruptcy trust, one of dozens designed to pay asbestos claims without resorting to costly civil litigation. Honeywell is concerned no one in charge of the NARCO money is looking hard enough – or perhaps not looking at all – when they pay out claims. A trial is scheduled to start next week.
First, a trust advisory committee consisting of asbestos lawyers asked for information that could identify which firms made which claims to be redacted but later withdrew that request. Information that identifies claimants could be a gold mine for anyone trying to prove a claimant or their attorneys lied on claim forms.
Honeywell and the insurers seek to show claimants told inconsistent stories across all their claim forms filed with trusts in order to pin as much fault on each company as possible.
Honeywell says the NARCO trust is too free with the money set aside for asbestos victims. It says, despite an agreement not to do so years ago, it has only required simple form affidavits from asbestos lawyers.
This is in violation of the Trust Distribution Procedures, the company said in its pre-trial brief.
“Boilerplate ‘form’ affidavits are not competent or credible evidence of exposure sufficient to meet the criteria set forth in the TDP.”
A subpoena targeted Maryland asbestos lawyer Peter Nicholl, who has earned more than $85 million for his clients from the NARCO trust, Honeywell says. The company wanted documents regarding more than 1,600 of Nicholl’s clients.
Nicholl’s clients are remarkable for their pristine memory of NARCO products at their worksites decades earlier, the company claims. It thinks he fills in the blanks for them, then files requests for compensation with the NARCO trust that are rubber-stamped.
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 those forms.
Honeywell says the trust has adopted a “refractory inference,” which allows it to infer exposure to NARCO products if the claimant shows exposure to generic refractory products.
Insurers allowed to intervene in the case noted that the trust advisory committee is comprised of members of six asbestos firms – Baron & Budd; Cooney & Conway; Kazan, McClain, Satterley & Greenwood; Goldberg, Persky & White; Motley Rice; and Weitz & Luxenberg.
They pointed to a ruling for transparency that resulted from Legal Newsline’s court fight in the Garlock Sealing Technologies’ bankruptcy. Legal Newsline was first not allowed in the courtroom before mounting a legal challenge that allowed public access to Garlock’s evidence of double-dipping by asbestos firms.
“A lack of transparency in the tort system and in the post-confirmation trusts established to pay asbestos claims has allowed certain counsel to file claims in multiple venues making inconsistent representations regarding the products to which claimants were exposed,” the insurers wrote.
“As the Garlock court concluded, this practice is ‘widespread and significant.’”