Legal malpractice trial continued; attorneys wrangle over re-adding Simmons as defendant

Amelia Flood Feb. 11, 2010, 6:32am




The trial of a long-running dispute between an asbestos plaintiff and her former attorneys will not go to trial Tuesday as the court and both sides contemplate re-adding a formerly dismissed defendant.

Madison County Circuit Judge Barbara Crowder expressed her irritation with what she called the "weird maneuvering," in the suit and reluctantly ordered the trial be continued.

Both counsel for plaintiff Judy Buckles and defendant, the former Hopkins Goldenberg firm, said that they would argue facts at trial that relate to former third party defendant, the law firm SimmonsCooper, and John Simmons individually.

The two were dismissed five years ago from the case without objection from either side and with prejudice.

As arguments about the case continued during a hearing Thursday, Crowder told plaintiff's attorney Roy Dripps and his defense counterpart Daniel Konicek that it did not seem likely that the parties could go to trial without Simmons and his law firm since both seemed to be arguing his actions were at the heart of their cases.

"I myself find this to be a logical conundrum," Crowder said. "I think we're missing a player who needs to be here."

The suit was brought by Judy Buckles, a former asbestos case plaintiff. She sued claiming that Hopkins Goldenberg, now Goldenberg Heller, Antognoli and Rowland of Edwardsville, committed legal malpractice more than 10 years ago by failing to secure her an adequate settlement for her deceased husband's mesothelioma claims.
Buckles originally brought her suit in 2001 before voluntarily dismissing it. She refiled it in 2006.

Both attorneys had filed motions for summary judgment that were to be heard today. However, that matter was quickly overshadowed by arguments about what role John Simmons and his firm played.

Konicek contended that the Simmons firm had really erred because the Hopkins Goldenberg firm withdrew from representing Buckles after her settlement of one asbestos case.

SimmonsCooper, now known as The Simmons Firm, took over the case in July 1999.

Dripps argued that the Goldenberg firm cannot raise Simmons' involvement because he has already been dismissed although he said he planned to introduce certain facts related to it at trial.

Crowder questioned the arguments of both sides and chided them for playing games with one another in an already complex case.

"I realize that you guys are maneuvering at times beyond my
following but I'm not a total idiot," she said referencing the arguments. "It partly aggravates me that you're all trying to maneuver each other into a little box."

Konicek countered that the Goldenberg firm had only brought its claim against Simmons and his firm for contribution purposes and that it did not preclude them from arguing they had not been liable for any damages Buckles incurred.

Crowder disagreed with Dripps' arguments about what the role of a third party defendant is in the case.

In the end, the judge told both parties to continue the matter and file whatever responses or new motions that were necessary to move the case along.

She did not rule on the pending motions in the case.

Dripps represents Buckles.

Konicek and John Papa represent the defendant law firm.

The case is Madison case number 06-L-588.

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