SimmonsCooper looks to Delaware court as 'new' Madison County, lawyer says

By Steve Korris | Apr 5, 2007

Connor Bifferato

Judge Slights

WILMINGTON, Del. – Delaware, mother of corporations, has begun to devour her children.

In the first trial from a wave of asbestos suits that hit two years ago, jurors returned a $2 million verdict March 2 against General Motors and other companies.

A single plaintiff won the verdict. The next asbestos trial, set for May, will feature not one plaintiff but 20.

Four more groups of plaintiffs stand ready for trials to follow.

The plaintiffs do not live in Delaware. They sued in Delaware because they named Delaware corporations as defendants.

Many companies incorporate in Delaware regardless of their location, so, any asbestos suit can include a Delaware corporation.

In a way the choice of venue seemed as strange as Madison County becoming a universal asbestos forum. Delaware would have to sacrifice its pro-business reputation.

Until two years ago, asbestos attorneys with clients all over the nation did not need Delaware courts. They sued in Madison County, where Circuit Judge Nicholas Byron allowed suits from residents of other states.

But when Circuit Judge Daniel Stack replaced Byron as asbestos judge, Stack started dismissing new suits from other states.

Madison County's top asbestos firm, SimmonsCooper of East Alton, started sending new asbestos suits to New Castle County, in Wilmington.

Baron & Budd, a Texas firm that had filed many asbestos suits in Madison County, followed SimmonsCooper to Wilmington.

In the next 22 months following SimmonsCooper first asbestos suit in Wilmington, the court would receive 412 more asbestos cases, compared to only 126 in the 22 preceding months.

SimmonsCooper and Baron & Budd account for almost all the expansion. They have also brought hundreds of benzene suits to Wilmington.

The Illinois and Texas attorneys did not sign the complaints or file them. For that they needed local counsel.

SimmonsCooper filed its suits through Bifferato, Gentilotti and Biden, of Wilmington.

A member of the firm, Joseph Biden III, would win election in 2006 as Delaware's attorney general. He is the son of U. S. Sen. Joe Biden Jr.

The suits named many defendants, but General Motors, Ford and DaimlerChrysler regarded themselves as the prime targets.

Asbestos suits no longer focus on asbestos companies, because litigation has bankrupted many of them. Suits focus on businesses that used asbestos in making products – especially auto makers.

In July 2005, General Motors and Ford moved to dismiss the suits on the doctrine of forum non conveniens. Both are Delaware corporations.

Ford and GM's attorney Christopher Singewald of Wilmington wrote, "SimmonsCooper wants New Castle County to be its new Madison County."

"Delaware citizens should not be forced by a forum shopping Illinois law firm to give up time and income to sit as a juror and decide a case that has no real connection to Delaware," he wrote.

Singewald attached to his motion articles from the Madison County Record about SimmonsCooper's shift to Delaware.

One article reported that SimmonsCooper contributed to the campaign of Delaware's governor.

Connor Bifferato of the Bifferato firm moved to strike the articles. County asbestos Judge Joseph Slights III heard the motion in September 2005.

Bifferato said, "Whether SimmonsCooper represents these plaintiffs or not is completely irrelevant to whether or not these cases belong in Delaware."

Slights asked Singewald if he had any support for the notion that contributions to the governor would affect the outcome of the litigation.

Singewald said he did not believe contributions to the governor would affect the court's impartiality.

Slights asked why he attached an article suggesting the contrary.

Singewald said it was relevant to public interest.

Slights asked if it occurred to him that it might offend opposing counsel and the court.

Singewald said he did not intend to offend the court.

"I was trying to provide some background information to the court, in educating the court a little bit on the history, the firm, what has occurred in Illinois, why these cases are now coming to Delaware," Singewald said.

He said the information might be embarrassing.

Slights asked, "Scandalous?"

Singewald said, "I don't think it's scandalous."

Slights said, "If you don't have any evidence to suggest strongly that a judiciary of another jurisdiction is so completely tainted and off base that they should be characterized the way you have in your papers, how can you call them anything but scandalous?"

"These defendants have trashed a state court in another jurisdiction, have trashed a local law firm and its practitioners, including both a senior member of the Delaware Bar who has served his clients, the courts of Delaware and the citizens of Delaware with distinction, and the lead attorney in these cases, who also enjoys an impeccable reputation for professionalism, competency and civic responsibility," Slights said.

Slights granted the motion to strike the articles.

That November, Slights held a hearing on forum motions of Ford, General Motors and other defendants.

Singewald said, "If these cases are not dismissed from Delaware, then theoretically every tort case pending nationwide involving a Delaware corporation can be sued here."

Elizabeth Geise of Wilmington, for Certainteed Corporation, said, "In 1985 there was one asbestos case filed in Madison County. In 2003 there were a thousand."

She said every court that went down this road decided that plaintiffs should file cases where they live.

Bifferato said, "The citizens of Delaware, the members of the Delaware judiciary, the members of the Delaware State Bar Association derive a tremendous benefit from the existence of Delaware being a corporate home."

"With those tremendous benefits often time comes some burden, and that burden comes in the form of policing," Bifferato said.

"There is nothing nefarious about the decision to come here to Delaware. It is because there are so many defendants here.

"This is not Madison County, and I mean no disrespect to Madison County but Madison County is a small county court system.

"The defendants in these cases have chased these plaintiffs from jurisdiction to jurisdiction.

"Plaintiffs' counsel decided you know, let's stop being chased around. Let's go to where the defendants are located. There is a fine court system there who is above reproach.

"I don't think the Court should be influenced by the argument of, Madison County was pegged as this awful jurisdiction and if you allow it to come here to Delaware too, you're going to be pegged with that kind of label.

"This is not something that we would assert is a wave, a tidal wave that is waiting to overwhelm these courts."

Bifferato introduced William Kohlburn of SimmonsCooper.

Kohlburn said, "The characterization that we are being run out of there, or that the court cannot handle the volume of litigation there, is simply a misconception."

"We come to Delaware because it's the jurisdiction of incorporation of many defendants and because we feel that we are not going to suffer that same sort of criticism of trying to get some sort of even improper advantage…," Kohlburn said.

Richard Wyner of Wilmington, for Dana Corporation, challenged the court's jurisdiction over defendants who were not Delaware corporations.

He said, "Delaware has no interest, zero interest, in devoting its time, its jurors, its other resources to hearing claims of Arizona and Montana plaintiffs involving Arizona and Montana exposures against a Virginia corporation with its principal place of business in Ohio."

Slights denied the motions.

As suits continued rolling in, Slights combined them in groups according to similar disease or work histories.

The groups blended SimmonsCooper cases with Baron & Budd cases.

Last September, at a pretrial conference for a group of 20 plaintiffs, Kohlburn moved to exclude testimony about bankruptcies.

"One of the impressions that creates is that asbestos litigation bankrupts companies," Kohlburn said.

Slights set the group trial for May.

While he prepared a group trial, Superior Court Judge Mary Johnston opened trial Feb. 12 on a single suit from a different Texas attorney.

Rick Nemeroff of Dallas filed the suit against nine companies in November 2005, on behalf of Roland Grenier Sr.

On March 2 Johnston closed the trial and sent jurors to deliberate.

Jurors agreed that Grenier had asbestos related mesothelioma and that negligence of General Motors proximately caused it.

They found that defective and unreasonably dangerous products of General Motors and Ford proximately caused his disease.

They found that failure to warn on the part of General Motors and Ford proximately caused his disease.

They found that defective and unreasonably dangerous products of Abex, Bendix, Borg Warner, DaimlerChrysler, H. K. Porter, Johns Manville and Maremont proximately caused his disease.

They awarded $2 million in compensatory damages.

They allocated $1.4 million to General Motors.

They allocated $320,000 to Ford.

They allocated $40,000 each to the other seven companies.

They found no malice, wantonness or willfulness requiring punitive damages from General Motors or Ford.

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