CHICAGO (Legal Newsline) - A prominent asbestos law firm accused of cheating by J-M Manufacturing has filed the second part of its defense.
"J-MM has repeatedly sought to blame everyone but itself in response," lawyers for Simmons Hanly Conroy wrote July 19 in a motion to dismiss in Chicago federal court.
"According to J-MM, sick and dying asbestos victims are liars, plaintiffs' lawyers are criminals, courts that allegedly refuse to 'sanction the firm or rein it in' are corrupt, and - when juries hold J-MM accountable for its actions - its own lawyers are incompetent."
The firm has already filed an anti-SLAPP motion, a move using California law that allows defendants to get out of litigation quickly if it is found their conduct was protected. In this case, according to Simmons, that conduct is zealously representing its clients.
The following motion to dismiss targets J-M's allegations that the firm created a racketeering enterprise. Simmons says litigation activities cannot constitute mail or wire fraud and that J-M missed the RICO Act statute of limitations.
J-M sued the firm earlier this year. The pipemaker has been targeted with roughly 6,000 asbestos lawsuits through the years, including more than 400 from the Simmons firm.
Simmons boasts that it has recovered more than $10 billion for asbestos clients over the years, but J-M's lawsuit alleges it has done this by crossing "all objective legal and ethical boundaries."
J-M started its investigation after a former asbestos lawyer at Simmons sued the firm for retaliation for reporting alleged wrongdoing. Scott Peebles ultimately settled his case, but J-M got involved with an effort to unseal certain portions of his allegations.
J-M is claiming in its lawsuit that its probe has discovered clients were coached on what to say about exposure to an asbestos-containing pipe the company produced, or they outright lied.
Key to asbestos claims is product identification. Plaintiffs are asked to recall products used decades ago on jobsites so their lawyers can sue the companies associated with them, though it is tough to determine the accuracy of the testimony.
The complaint cites a group of cases resolved within the last five years, including Sebastian Bretado's. He claimed he contracted mesothelioma while doing "line drainage" for landscapers in the 1980s.
During a deposition, Bretado was shown products and labels and asked if he remembered working with them. He answered that he had used a power saw and power drill on J-M's pipe, though the company says he couldn't remember any specific location he ever worked, the full name of any co-workers or the names of any customers.
He provided the name of three employers, including Oak Ridge Landscaping. The two individual employers have passed, but their family members testified that they never ran any landscaping businesses, while the principal of Oak Ridge said the company never used the J-M pipe and that he didn't remember Bretado.
The complaint tells several similar stories. Also alleged is the somewhat familiar pattern of hiding exposure claims against companies that went to the bankruptcy system (where payouts are limited) to first pursue maximum recoveries in the tort system, where a jury verdict could be eight-figures.
One of those big verdicts had J-M on the hook for more than $22 million of a $30 million penalty in California.
Simmons says J-M is targeting it as a result of being on the losing end of court cases. Routine litigation activities like seeking the most compensation possible for clients, finding the most favorable courts and preparing clients for depositions are not grounds for a RICO lawsuit, Simmons says in its motion to dismiss.
"Courts consistently reject lawsuits like this one, where the claims stem from perceived unfavorable litigation outcomes," the motion to dismiss says. "This Court should do the same."
Simmons says J-M should have challenged the firm's conduct in those cases if it believed fraud infected their outcomes rather than file a RICO lawsuit. It cites the Noerr-Pennington Doctrine, which provides First Amendment protection for parties that petition the government.
Those protections extend to individuals before courts, Simmons says.
"There can be no dispute that Noerr-Pennington immunity bars J-MM's lawsuit," the motion says.
"All five counts in J-MM's complaint are expressly based on Defendants' alleged conduct in filing, litigating and settling lawsuits against J-MM... In other words, J-MM's entire complaint is premised on Defendants' use of 'the channels and procedures of state and federal... courts to advocate [their clients'] causes and points of view' - activity protected under the Noerr-Pennington Doctrine."