American Family says lawyers have turned into 'de facto plaintiff' in class action

Steve Korris Jan. 16, 2009, 6:00am

Lawyers Brad Lakin and Paul Weiss have explained why a Madison County class action has been led for five years by a dead man. But the answer as to why it must be prolonged as a class is secret.

Circuit Judge Daniel Stack sealed their Jan. 2 response to a Dec. 26 American Family Insurance brief that argued, "This is not a class action."

American Family lawyer Anthony Martin of St. Louis, opposing a motion to substitute for the late Manuel Hernandez, wrote, "It ceased being a class action long ago."

He argued that class counsel have converted themselves into "the de facto plaintiff."

Hernandez sued American Family in 2000, claiming it cheated accident victims on medical payments.

Stack certified the suit as a class action in 2002, but Lakin and Weiss did not follow through with notice to the class.

Hernandez died in 2004, but Stack didn't hear about it from Lakin and Weiss.

American Family reported his death to Stack in 2006.

"Either class counsel knew of Mr. Hernandez's death for over two years and failed to act, or failed to attempt to contact the sole class representative for over two years," Martin wrote in his December brief.

He argued that because the class received no notice, the class died with Hernandez.

"Notice is required because absent class members have several constitutional due process rights which have not been protected in this lawsuit," he wrote.

"American Family's concern for absent class members' constitutional due process rights is also a concern for its own," he wrote.

He wrote that chiropractors and clinics that would substitute for Hernandez knew nothing about the litigation until Lakin solicited them.

"Those chiropractors responded to the solicitation letters trolling for substitute class representatives a little more than one year ago," he wrote.

Three potential substitutes don't belong to the class, he wrote.

He also questioned the adequacy of class counsel who sued each other two years ago.

"The warring factions of class counsel may have patched up some of their differences, but the Court is well aware that the battling continues," he wrote.

"It matters little whether the Lakin faction is stronger or weaker than the Burke/Freed and Weiss faction," he wrote.

"What matters to the absent 'class members' is that these two groups of lawyers, who purport to act as co-counsel in this case, are always publicly bickering and fighting with and against one another," he wrote.

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