Madison County Circuit Judge Barbara Crowder heard arguments Friday on a move to reconsider a March order denying summary judgment to the former Hopkins Goldenberg law firm in an asbestos legal malpractice case.
Attorney Daniel Konicek argued that attorney John Simmons, who used to work for Hopkins Goldenberg before going on to create an asbestos practice empire, had been responsible for asbestos plaintiff Judy Buckles' case. Simmons had been granted summary judgment in Buckles' malpractice suit five years ago.
Representing Hopkins Goldenberg, Konicek argued that Simmons should come back into the malpractice suit because his role in the lapsed underlying claims was at issue.
Buckles' attorney Roy Dripps countered that Konicek's client, now known as Goldenberg, Heller, Antognoli, Rowland & Short, had still been in the underlying Buckles case until nearly a year after it had been fired.
Dripps told Crowder that the Hopkins firm had not turned over the case file to Simmons until after the statute of limitations had run on the claims against several defendants and that Simmons had tried to obtain the file before that.
Simmons did not attend the Friday motion hearing.
His summary judgment was not opposed five years ago.
Buckles is suing the Hopkins firm and William Millar, alleging that they allowed claims against several defendants in her husband's mesothelioma case to lapse in the late 1990s.
Buckles also alleges the defendants failed to secure her an appropriate settlement amount.
The suit is set for trial June 21 with a final pre-trial conference set June 16 at 1:30 p.m.
Simmons and his law firm were originally included in the case because they took it over from the Hopkins firm in July 1999.
However, according to statements made by Dripps and Konicek Friday, the Hopkins firm did not formally leave the case after Buckles fired them until June 2000.
Simmons' role in the claims resurfaced at a hearing in February when both parties sparred and bickered over his role in the case.
Simmons was involved with the case in the late 1990s as both an associate in the Hopkins firm and on his own after he left it in July 1999.
Crowder suggested at the Feb. 8 hearing that the East Alton attorney might need to come back into the case.
Buckles then moved to vacate his summary judgment shortly after.
Crowder, however, denied the motion to vacate the summary judgment in March.
She also refused March 2 to give his former employers summary judgment in the case.
The Hopkins firm filed a motion asking Crowder to reconsider her March 2 order on May 28.
In the May 28 motion, the Hopkins firm argues that Simmons is
vicariously liable for Buckles' claims against his former firm.
The defendants allege that Buckles' claims are based in large part on Simmons' actions while he was with the Hopkins Goldenberg firm as her lead attorney.
The firm goes on to argue that because Buckles allowed Simmons out of the case despite what it claims was his negligence, the plaintiff should be going after him and not his ex-firm.
"Plaintiff has now had two opportunities to show that Simmons was negligent while he was the primary attorney at Defendants' firm responsible for her case," the motion reads. "She is not entitled to a third try simply because the Defedants were his employer."
The motion concludes with the argument that the plaintiff does not have a case against the Hopkins firm.
"The direct and inescapable result of Simmons' dismissal from this action, caused by the Plaintiff's conscious and voluntary decision not to develop a case against him, is that the Plaintiff cannot pursue those same claim against Defendants," the motion reads.
After hearing arguments, Crowder told Konicek and Dripps that she would allow Dripps time to respond to the May 28 filing. Crowder said she would then re-read the motion, the response and expert testimony about the case's issues that had been taken previously by both sides.
She indicated she would not need to hear further arguments before her ruling.
Crowder also expressed her dismay about the "moving around" of the parties as to whom should be in the suit.
"You all stood silent on John Simmons motion for summary judgment," she told the parties. "There was absolutely no argument that John Simmons was negligent. I forsee a lot of confusion in the trial."
Crowder also urged the parties to attempt mediation immediately following the hearing.
"It's my fervent hope this case gets resolved between you all," Crowder said.
Buckles originally filed the suit in 2001. She refiled it in 2006.
Buckles is represented by Roy Dripps of St. Louis.
The Goldenberg firm is represented by John Papa of Granite City and Daniel Konicek of Geneva.
Simmons was represented by A.J. Bronsky of St. Louis.
Defendant William Millar is representing himself.
Madison County Circuit Court case number 06-L-588.