WILMINGTON, Del. - For years the law firm of the famed Bifferato brothers defended asbestos suits in New Castle County Superior Court--where their father once was chief judge--by denying that asbestos was dangerous or toxic.
This year, the duo jumped to the other side, filing 21 suits for plaintiffs who claim that asbestos damaged their lungs.
Their position reversed in order to open the doors of the county courthouse to the SimmonsCooper law firm of East Alton.
SimmonsCooper runs one of the nation’s most active asbestos practices. In Madison County, SimmonsCooper has filed more asbestos suits than any other firm.
In most of its Madison County cases, SimmonsCooper represents plaintiffs who do not live in Illinois, let alone in the county.
In the last year, SimmonsCooper has sharply reduced the number of new asbestos cases in the county. The drop accelerated after Circuit Judge Daniel Stack dismissed asbestos suits from out-of-state plaintiffs.
Owners of companies that have defended SimmonsCooper suits in Madison County wondered where the firm might take its far flung group of plaintiffs.
The answer came May 13, when Amey Coston of Whitmore Lake, Mich. sued American Cyanamid and other companies in the courthouse at Wilmington.
Coston’s complaint identified Michael Angelides of SimmonsCooper as, “of counsel.” Twenty asbestos suits followed, all bearing his name.
An accepting court
In Delaware, law firm partners John Simmons and Jeffrey Cooper had found a court that might accept asbestos suits from anywhere as Madison County once had done.
Many big companies operate as Delaware corporations, even if they maintain offices elsewhere and do little or no business in Delaware. Because asbestos suits accuse many big companies, a list of defendants always includes Delaware corporations.
All 21 suits state that, “One or more defendants are citizens of the state of Delaware and this action is not properly removable on any theory or jurisdictional basis.”
Angelides did not sign the complaints. Only a Delaware attorney can file a Delaware suit. The complaints bore the signature of Ian Connor Bifferato.
The Law Firm
Until May, neither Bifferato nor anyone else in the firm had ever filed an asbestos suit. In fact, his brother and partner, Vincent Bifferato Jr., had defended asbestos suits.
In 2000, Vincent Junior appeared as counsel for A. W. Chesterton Company of Stoneham, Mass. in an asbestos suit. The company substituted him for an attorney in another Wilmington firm.
A W. Chesterton makes seals and pumps. Few companies attract more asbestos suits. In Wilmington alone, 165 plaintiffs have sued the company.
Because of its alphabetical rank, A. W. Chesterton often appears in the title of asbestos suits.
When plaintiffs sued the company, Vincent Junior answered with bland statements denying allegations as to the company.
George Lees, an attorney in another Wilmington firm, defended his clients more boldly. His answers to complaints began, “Denied that asbestos is an inherently dangerous toxic substance.”
In 2001, Lees withdrew as counsel for his firm’s asbestos clients and joined the Bifferato brothers, who at the time called their firm Bifferato, Bifferato and Gentilotti.
Lees adjusted quickly. Sixteen days after switching firms, he moved for summary judgment in an asbestos case on behalf of A. W. Chesterton.
In a consolidated case he moved for summary judgment, arguing that the six plaintiffs had produced no evidence of exposure to asbestos through A. W. Chesterton products.
When a plaintiff moved to exclude evidence of tobacco use, Lees opposed the motion by arguing that tobacco smoke might have contributed to the plaintiff’s lung damage.
Last summer, the Bifferato firm gained a celebrity partner, Joseph Biden III, son of U. S. Senator Joseph Biden Jr., and changed its name to Bifferato, Gentilotti and Biden.
Cast of characters
In the fall of 2004--while southern Illinois staged a contentious battle for the state supreme court--the SimmonsCooper firm introduced itself to Delaware politics. Six of its attorneys and some of their spouses each contributed $1,200, the legal maximum, to the gubernatorial campaign of Ruth Ann Minner. She won.
At the courthouse, the pace of asbestos litigation had slowed. From last November through this April, plaintiffs filed 22 asbestos suits – less than one a week.
Lees continued to represent A. W. Chesterton on pending cases, but on April 20 a different local attorney, J. Michael Johnson, appeared for the company in a new case.
A week later, Lees withdrew as counsel for A. W. Chesterton in some pending cases. Vincent Junior, who had remained on record as counsel to the company, also withdrew. Johnson appeared as their substitute.
Sixteen days after that, the Bifferato firm started filing cases from SimmonsCooper.
Soon the most experienced asbestos firm in Delaware, Jacobs and Crumplar, began filing suits that listed Baron and Budd of Dallas, Texas, as “of counsel.” The suits said very little about where plaintiffs lived or where they were exposed to asbestos.
Baron and Budd has filed many asbestos suits in Madison County on behalf of plaintiffs from all over. Like SimmonsCooper, it recently curtailed its activity in Madison County.
The law firm of Peter Angelos, owner of the Baltimore Orioles baseball team, also filed a surge of suits in Wilmington. His firm sued only on behalf of Delaware residents.
In seven weeks, the Bifferato firm filed 21 asbestos suits, Jacobs and Crumplar filed 11, and Angelos filed eight. In all they filed 40, an average of almost six a week.
The suits will greatly expand the cast of courthouse characters, for many of the defendants have never faced litigation in Delaware. In one Bifferato case, 42 of 77 defendants enter as newcomers to Delaware.
The Bifferato firm’s switch from defendant to plaintiff creates an ethical problem.
In Delaware, by court order, asbestos defendants must coordinate their defenses. To do this, they must share strategies. For five years, Vincent Junior has had opportunities to study strategies of companies that his brother now pursues from the other side.
Indeed, court records indicate that Lees and Vincent Junior have not withdrawn from every A. W. Chesterton case. Apparently they can still share defense strategies.
Another ethical problem would arise if the Bifferato firm sued A. W. Chesterton, but the firm has not named its former client as a defendant in any of its suits.