Napoli leaders talk about past mistakes, future plans for firm's asbestos lung cancer cases

By Heather Isringhausen Gvillo | Sep 9, 2014

Just two years after opening an office in Madison County, leaders with New-York based Napoli, Bern, Ripka, Shkolnik are acknowledging their law firm has developed a bad reputation for the number of asbestos lung cancer cases it has filed.

"We continue to hear the almost panic in some people’s voices over the lung cancer docket," said Patrick Haines, who manages the firm's Edwardsville office.

Haines on Friday joined his colleagues-- Marc Bern, a senior partner in New York; Ethan Horn, a partner in California; and Brad Smith, a partner who heads the firm's bankruptcy trust team in Texas --to express their intentions to change the firm's reputation.

The firm leaders held a meeting with local asbestos attorneys to discuss their future litigation plans, as well as some of the mistakes made, particularly with the firm’s initial approach to filing asbestos lung cancer cases.

"We are committed to bringing the practice to a manageable and a realistic level," Bern said.

Napoli opened an office in Madison County in 2012. Just one year later, the firm dominated the docket, representing roughly 32 percent of the new case filings. Of those 525 cases, more than 90 percent of those cases were lung cancer claims.

Haines agreed his firm files a larger number of lung cancer cases than other asbestos plaintiffs’ firms, but explained that it had obtained an influx of lung cancer cases all at once a few years ago that resulted in mass lung cancer filings last year.

Since then, the Napoli firm has been steadily rejecting and selecting which claims it will represent, Haines said, noting the initial wave of work is complete and should allow for a drop in filing rates.

"We chewed through that work that was all there in one chunk," he said.

The firm admitted that it erred in its initial filing practices.

"I admit," Bern said, "in the past couple of years, there have been some mistakes that have been made. But we’ve also done a lot of things right."

Bern explained that because the firm received so many cases so quickly, it had to file them before it had a chance to thoroughly complete evaluation and review. Those cases, he said, are now being reviewed properly, which could take some time.

"I can’t tell you that tomorrow all these cases will be resolved on our part," Bern said. "It’s going to take a while. There were a lot of cases that were filed relatively quickly."

In fact, the firm used its recent decrease in case filings as an example that it intends to improve the way it is perceived.

As of June 30, Madison County has seen 656 new cases filed in its asbestos docket, a drop from last year’s record of 793 mid-year filings.

Of the new filings, the Napoli firm has filed about 19 percent of the total filings, or about 124 new cases – a drop from previous years.

Bern said he hopes people can recognize the firm is committed to improvement by the decrease in its filings. Haines said the firm only filed 40 or 50 cases in January and has gone down every month since then.

"That’s not because we are giving up on the firm or we have surrendered our position," Haines said. "It’s because we filed what we had."

He promised that the filing numbers from 2012 and 2013 will not come from the Napoli firm again, saying the "floodgates" that "appeared" to be open are now closing.

Bern said the firm plans to handle the cases the same way many other asbestos firms handled these cases in the past by filing more consistent, lower numbers after thorough review.

As for the cases that have already been filed, the leaders made it clear the firm does not want to be involved in unnecessary lengthy and costly litigation– meaning the attorneys want to resolve disputes over who should be in the case or where the case should be tried now rather than by filing motions back and forth.

"Ultimately, whatever parties that should be in the case, will be in the case," Bern said. "Those who shouldn’t be in the case, won’t be in the case."

"If we don’t need you in the case," Horn added, "we don’t necessarily want you in the case."

Bern and Haines both said defendants that don’t have merit in the cases will be voluntarily dismissed.

"Many of these cases will have a large number of defendants that will get dismissed," Haines said. "I would rather do that now than later."

He added, "[W]e all have way more work than we can handle, and we don’t need a way breaking out where we just fling motions one after another."

The two encouraged defense attorneys to come to them personally to take a look at the cases and make progress rather than address their concerns in the courtroom.

"I want to again confirm our pledge that that’s the direction we’re heading," Horn said about the resolving cases earlier if possible.

However, the firm leaders said their attorneys are prepared to address disputes in court when the parties do not agree, noting that they still believe some defendants are properly included in certain asbestos lawsuits.

Haines said there are several lung cancer cases set for trial in February and March, but he said there is a better way of resolving these cases than trying them to verdict.

"We’re not here to get a bunch of verdicts or drive anybody into bankruptcy," Haines said. "That’s not our plan."

Bern also took the chance at Friday's meeting to dispel what he said was a rumor started about his firm.

"We are not the new Simmons," he said.

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