Simmons and Bifferato continue filing asbestos in Delaware

Steve Korris Feb. 17, 2011, 2:36pm



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.

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Babcock & Wilcox
13024 Ballantyne Corporate Pl Suite 700
Charlotte, NC 28277

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