Segal McCambridge Legal Blog

From Bloomberg.com
Bondex, Rust-Oleum Maker Unit in Bankruptcy, Is Denied Asbestos Claim Data

Bondex International Inc., the bankrupt unit of Rust-Oleum RPM International Inc. (RPM), can’t get data on compensation paid to asbestos victims the company wants to use to calculate future liabilities, a court ruled.

U.S. Bankruptcy Judge Judith K. Fitzgerald in Wilmington, Delaware, today denied Bondex’s request for details on payments that some asbestos-victims’ trusts may have made to people who also claimed to have been injured by Bondex’s home-repair products.

Bondex and Specialty Products Holding Corp filed for bankruptcy last year with plans to set up their own asbestos- victims trust to resolve future and current suits. To calculate how much money the companies, or their parent, RPM, must put into the trust, the companies sought data on past payments.

Bondex’s plan to use the data is “all based on a hypothetical that doesn’t exist,� the judge said in court.

Gregory M. Gordon, a Bondex attorney, said the model the company is trying to create may predict lower future payments by taking into account payments that other trusts made to victims who sued Bondex.

Fitzgerald has allowed Bondex to collect other details from asbestos victims to build its models.

Bankrupt companies and their parents can win immunity from future asbestos lawsuits by setting up trusts to cover medical and other costs associated with exposure to asbestos.

The bankruptcy case is In re Specialty Products Holdings Corp., 10-11780, U.S. Bankruptcy Court, District of Delaware (Wilmington).

A divided Delaware Supreme Court has ruled against the wife of a former DuPont Co. worker in “take-home” asbestos exposure case on grounds that a “special relationship” did not exists and by drawing a distinction between misfeasance and nonfeasance.

The court, relying on its past decision in the Riedel v. ICI Americas Inc. 968 A.2d 17 (Del. 2009) ruled 3 to 2 on Monday that Patricia Price could not change a claim of nonfeasance against DuPont into a claim of misfeasance.

Plaintiff’s husband worked as a maintenance technician for E.I. du Pont de Nemours & Co. at its Chestnut Run, Delaware facility from 1957 until 1991. During his employment, Plaintiff’s spouse worked with and around products containing asbestos. Allegedly, Plaintiff’s spouse transported asbestos fibers home on his clothing, vehicle, and skin. Plaintiff alleges that years of living with her husband, exposure to the asbestos dust and fibers her husband brought home from work and handling and washing his work clothes, exposed her to the fibers and caused her to allegedly suffer from bilateral interstitial fibrosis and bilateral pleural thickening of the lungs.

The Delaware Supreme Court held that nonfeasance involves the failure to protect someone with whom you have a special relationship and to whom you owe a duty. Misfeasance involves a general affirmative duty to protect others against harm.

The Delaware high court said DuPont’s alleged failures to prevent Plaintiff’s spouse from taking asbestos fibers home on his clothing or to warn the Plaintiffs about asbestos do not support a claim of misfeasance. It also said Plaintiff’s nonfeasance claim must fail because DuPont had no special relationship with her and owed her no legal duty.

Some selected portions from the opinion:

Here, Mrs. Price’s allegations, stripped of all reformatory recharacterization, are that: (1) Mr. Price, an employee of DuPont, worked with and around products containing asbestos for 34 years, (2) asbestos fibers settled on his skin, clothing, and vehicle, (3) DuPont did not provide locker rooms, uniforms, or warnings to the Prices regarding the dangers of asbestos, (4) DuPont did not prevent Mr. Price from transporting the asbestos fibers home on his skin, clothing, and vehicle, and (5) Mrs. Price, because she lived with Mr. Price and washed his clothes, developed several diseases from her exposure to the asbestos he brought home from work.
These allegations generate a reasonable inference that DuPont wrongfully (negligently) failed either to prevent Mr. Price from taking asbestos home or to warn the Prices of the dangers associated with Mr. Price wearing his work clothes home. That, according to our Riedel opinion, is pure nonfeasance—nothing more.

As of July 13, 2011, the Delaware Supreme Court opinion can be found here

The oral argument in the Delaware Supreme Court can be heard here

From the Madison Record

Simmons and Bifferato continue filing asbestos in Delaware
2/17/2011 By Steve Korris

WILMINGTON, Del. – John Simmons of East Alton and Ian Bifferato of Wilmington must like litigating together.

In the sixth year of their association, they continue filing about six mesothelioma suits a month at State Superior Court of New Castle County.

The steady stream of suits offers the only reliable evidence of success in a field of litigation where results seldom reach the public.

On Feb. 17, minutes before asbestos judge Peggy Ableman would have heard pretrial motions in four of their cases, they advised her they settled all four.

Other firms had done the same, and she canceled the hearing.

Three clients of Simmons and Bifferato remain on the docket for trial starting March 2, along with clients of other firms.

Ableman has set trial dates in the next year for 381 cases, more than half of her docket, but she can expect most to end quietly.

Twice in 2007, Bifferato and Simmons settled 20 suits as trial approached.

Last year, they settled 24 in February, 21 in March, 19 in April, and 21 in May.

If a trial should come to pass, it would capture only a sliver of a case.

Two weeks ahead of a trial date last year, a group that started with 36 persons suing more than 300 defendants had shrunk to seven suing 10.

This January, 47 individuals in the May 4 trial group dismissed more than 550 separate claims against a host of defendants.

If Bifferato and Simmons bring a case to trial, Ableman will have to decide how much jurors need to know about Simmons’s home court.

In a motion that Bifferato and Simmons file to limit evidence, they seek to exclude “inappropriate or disparaging comments regarding Madison County asbestos litigation and/or plaintiffs’ counsel’s involvement in same.”

The motion also calls for silence on a client’s history of insurance claims, disability benefits and worker’s compensation.

It calls for silence on injuries other than mesothelioma that might shorten life; on exposure to radiation and tobacco; on alcohol and drug abuse; on exposure to asbestos from “unattributable entities”; and on circumstances of a client’s employment of an attorney.

On Madison County, some defendants answer that both sides should exclude it.

Others write, “Evidence may come out at trial that could touch on these issues.”

On prior claims, Elliott Company cracked the silence in a case from a different firm by requesting admissions that a client filed them.

On Feb. 3, the firm of Perry and Sensor admitted the client filed claims with trusts from bankrupt businesses Johns Manville, Owens-Corning and Babcock & Wilcox.

Simmons and Bifferato began filing asbestos suits together in Delaware in 2005, though Bifferato’s firm had never filed one before their association.

Delaware’s current attorney general, Beau Biden, worked in Bifferatto’s firm then.

His father, then Senator Joe Biden, had led successful opposition to a bill that would have curtailed asbestos litigation.

Simmons and Bifferato sued for clients around the nation, and no one could challenge jurisdiction because the list of defendants always included Delaware corporations.

Among 34 suits they filed since last September, one plaintiff came from Delaware.

Each suit alleges that dozens of defendants exposed a plaintiff to asbestos, and each separately alleges that insurer Met Life conspired to conceal the hazards of asbestos.

The conspiracy theory has blossomed into a career for Barry Castleman of Rockville, Md., star witness for plaintiffs at trials almost too numerous to count.

He may have to count them.

On Feb. 10, Delaware defense coordinating counsel Loreto Rufo served notice calling on Castleman to compose something close to an autobiography.

For 28 cases that include 11 clients of Bifferato and Simmons, Rufo asked for a list of “any and all of your prior testimony in any public proceeding or litigation.”

Rufo asked for plaintiff names, dates of testimony, and names of attorneys.

“Produce a copy of each transcript,” Rufo wrote.

He asked for every document Castleman relied upon in reaching his opinions; for every document Castleman reviewed about the cases at hand; for every document he reviewed about defendants and for all correspondence and communication between Castleman and counsel for plaintiffs in the cases at hand.

Rufo requested a response by Feb. 23, in preparation for deposition on Feb. 25.