The Fifth District Appellate Court has ruled in a Madison County asbestos legal malpractice case involving high profile lawyers and allegations of secret agreements with defendants and undisclosed fee-splitting arrangements with a national asbestos firm.
In an order issued March 26, the court upheld Circuit Judge Barbara Crowder who dismissed Alton asbestos attorney John Simmons from a malpractice claim brought by plaintiff Judy Buckles.
The court also upheld Crowder who granted summary judgment to the former Hopkins Goldenberg firm on the adequacy of a $750,000 asbestos settlement reached with Pittsburg Corning in the same case.
But the court, in an opinion authored by Justice Stephen Spomer, reversed another Crowder order that had granted partial summary judgment in favor of the Hopkins Goldenberg firm. On that issue, the court remanded the matter for further proceedings.
Buckles is a former Hopkins Goldenberg client who claims attorneys from that firm and later attorney Simmons botched the settlements of her husband's mesothelioma lawsuit. Her suit is currently against Goldenberg, Heller, Antognoli, Rowland and Short - the successor to the Hopkins Goldenberg Firm.
In one of the counts of Buckles' suit, she alleges that the Hopkins Goldenberg firm had several secret agreements with potential defendants, including W.R. Grace and Owens
Corning, to classify and settle claims against its various clients for predetermined figures.
The complaint alleged that these predetermined figures bore no relationship to the loss the plaintiff suffered and that the Hopkins Goldenberg firm did not disclose these arrangements to the plaintiff.
And, among other things, Buckles' complaint alleges that the Hopkins Goldenberg firm failed to file suit within the statute of limitations against one potential defendant, W.R. Grace.
In addition, the complaint alleged that the Hopkins Goldenberg firm failed to collect settlements from the various entities in a timely manner before those entities filed bankruptcy, made improper and excessive cost deductions from the settlement proceeds, unilaterally allocated the proceeds of group settlements to the plaintiff without her knowledge or consent, and failed to disclose to the plaintiff the terms of its fee-splitting arrangements with the national asbestos firm, Ness Motley of Mt. Pleasant, S.C.
The court noted that the "crux" of Buckles' appeal was Crowder's June 18, 2010 order which granted a partial summary judgment to Hopkins Goldenberg on any claim that Simmons – who worked with Hopkins until 1999 – was negligent while employed by the firm, and that Buckles could not pursue the Hopkins Goldenberg firm for any conduct other than that connected with relinquishing her case to Simmons and collecting the settlements made while representing the plaintiff.
"Based on the record before us, we find that there are questions of material fact surrounding the issue of whether any of the Hopkins firm's conduct outside of the Pittsburgh Corning settlement and prior to their relinquishing the file to Simmons was a proximate cause of the plaintiff recovering less than the full value of her damages for her husband's mesothelioma," Spomer wrote.
"There are simply not enough facts in the record for this court to determine as a matter of law which of the underlying defendants should have been the 'target' defendants and which defendants the plaintiff could have successfully pursued for all of her damages.
"The resolution of this issue will depend on evidence of the following with regard to the potential defendants: (1) the role each defendant played, whether manufacturer, installer, or premises owner; (2) the level of the plaintiff's decedent's exposure to the defendants' products or locations; and (3) the frequency of such exposure."
The appellate court remanded the case to Madison County for further proceedings.
Circuit Judge William Mudge presides in the case.
Buckles originally sued in 2001, but dropped the case and re-filed it in 2006.
The Buckles suit has been at the Fifth District Appellate Court in Mount Vernon since 2010.