Delaware business group asked for court review after asbestos influx

Steve Korris Sep. 19, 2008, 7:50am

WILMINGTON, Del.-Delaware Chamber of Commerce President James Wolfe last fall asked the president Judge of the state Superior Court to study the effects of asbestos suits being filed by plaintiffs from other states.

Wolfe predicted that "Delaware incorporation will soon come to be viewed as a liability and not an asset."

He wrote that since May 2005, out of state plaintiffs had filed 445 suits.

In that same year, East Alton asbestos firm SimmonsCooper partnered with the Wilmington firm of Bifferato, Gentilotti and Biden to file asbestos claims.

Judge James Vaughn appointed a committee of five lawyers with no asbestos experience to respond to issues Wolfe raised.

Bifferato, Gentilotti and Biden protested that the committee should not consider statements from special interest groups.

They wrote that "the motives and tactics of such groups will become clear and their assertions will be unmistakably negated by the facts, history and extensive record behind this area of Superior Court practice."

Somers Price of Wilmington, representing Chrysler and Freightliner, dropped a 38-page bomb on the committee.

He wrote that "plaintiffs have demanded and obtained a series of procedures which unfairly prejudice the defendants, dramatically increase the costs of defense, restricts defendants' ability to take discovery and mount a defense."

Price declared it "virtually impossible for any defendant to have a fair and proper trial."

He wrote that a plaintiff could fail to comply with disclosure requirements and the case would continue without penalty or any consequence.

He wrote that plaintiffs could seek damages without disclosing whether they had already collected benefits from insurance or Social Security.

He wrote that motions based on lack of exposure to a defendant's products were not heard until a month before trial.

"As a result, defendants are left with the time consuming and expensive problem of preparing an overall defense for a case where there is no factually supportable claim against that defendant," he wrote.

"The only other alternative is to settle with the plaintiff, even for claims with no merit," he wrote.

He warned that, "When other states such as Mississippi, Texas and Illinois followed such procedures it took years to remedy what those cases did to the business climate and reputation of the court systems."

The committee met with Wolfe and, five days later, with asbestos Judge Joseph Slights and asbestos commissioner David White.

In December Slights signed orders amending case management rules and trial scheduling procedures.

At a public hearing this January Wolfe said, "We want to prevent Delaware from being another Illinois, Texas or Mississippi."

But attorney Jerome Block countered at the same hearing, "Out of state plaintiffs are not choosing Delaware because it is an unfair system and it is somehow tilted in favor of the plaintiff.

"These plaintiffs are choosing Delaware because it is an asbestos system," Block said. "It is a fair asbestos system."

Other attorneys at the hearing weighed in, including John Phillips, who said the committee should recognize the herculean effort of Slights.

Phillips said Slights made the litigation something Delaware should be proud of.

"This judge has done an excellent job of listening to both sides," Phillips said. "Commissioner White is devoted to making this litigation work."

Attorney Thomas Crumplar said an outside group had called Delaware a judicial hellhole.

"I think it's defamatory," he said. "I almost think there should be a libel suit for that."

Phillips said Slights got up to speed quickly and added, "He is doing a good job."

The day after the hearing, Vaughn appointed Judge Mary Johnston as asbestos judge.

The committee would report later that Johnston replaced Slights by normal rotation.

Soon after that, Commissioner White resigned and joined a private firm.

Vaughn hired a private attorney, Matthew Boyer, to replace White with a new title of special master.

In May, the committee issued a report concluding that Delaware could properly handle cases from other states.

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