Madison - St. Clair Record

Wednesday, April 8, 2020

Yandle cancels Alaskan’s asbestos trial three days from start; Plaintiff lawyer apologizes for mistakes and lack of preparedness

By The Madison County Record | Feb 24, 2016


BENTON – U.S. District Judge Staci Yandle prepared for an asbestos trial but nobody else did, so the trial didn’t happen.

Yandle called it off on Feb. 19, three days before it would have started, after plaintiff Steven Watts settled with the last of 45 companies he sued.

Yandle and Magistrate Judge Donald Wilkerson had denied motions from both sides to fix strategic errors.

First, Wilkerson refused to delay the trial for defendants who had ignored the proceedings in reliance on a side agreement that didn’t hold up.

Then Yandle ruled that because Watts missed a deadline for identifying witnesses, he could call no one to the stand but himself and his doctor.

Watts had hired the Napoli Bern firm of New York City in the midst of a feud that would reduce the firm to a shell.

Napoli Bern exists today only on paper, for the convenience of a New York court referee dividing its clients between former partners Paul Napoli and Marc Bern.

Damage from their split shows up throughout the record of the Watts case.

Steven Aroesty, from the Edwardsville office of Napoli Bern, filed the suit in Madison County in 2014.

The complaint stated that Watts lived in Wasilla, Ala., and that he had worked in Kansas and California, as well as on Navy ships.

It stated that exposure to asbestos caused his lung cancer.

For defendant Crane Co., Benjamin Wilson of HeplerBroom in Edwardsville removed the action to federal court.

Wilson wrote that Watts sued Crane Company for acts it undertook at the direction of a federal officer.

“Unless Crane Company products were first determined to be in conformity with all applicable Navy specifications, they could not be installed aboard Navy ships,” Wilson wrote.

Aroesty soon withdrew from the action, giving a St. Louis address.

Eric Jackstadt and Stephanie Gold, from the Edwardsville office of Napoli Bern, entered appearances.

Gold soon withdrew.

Crane Company and most other defendants settled with Watts, and Yandle signed orders dismissing them.

For the rest, she set trial for this Feb. 22.

On Jan. 20, Wilson moved to continue the trial on behalf of Georgia Pacific, Ingersoll Rand and Trane US.

Wilson wrote that those three, along with Crane Company, CBS, Certainteed, General Electric and Union Carbide, entered into an agreement with Napoli Bern in 2014.

He wrote that the agreement covered all lung cancer cases filed through 2014, and that defendants agreed to pay $650,000 and dismiss appeals of two Madison County cases at the Fifth District appellate court in Mount Vernon.

He wrote that Napoli Bern agreed to make good faith efforts to obtain each client’s acceptance of the agreement.

“Defendants and Napoli agreed to ‘stand down’ with respect to litigation activities in the potentially affected cases during the period of time given to Napoli to advise defendants which of Napoli’s clients, if any, did not accept the terms of the agreement,” Wilson wrote.

“Implementation of the agreement was delayed due principally to litigation among the partners at the Napoli law concerning management of the Napoli firm.”

Wilson wrote that his clients didn’t participate in depositions of Watts and his doctor, James Strauchen of New York State.

He wrote that his clients didn’t collect medical records or respond to discovery.

“Napoli has now changed its position and has indicated to moving defendants that the settlement of Napoli cases contemplated by the agreement will not be implemented,” he wrote.

He wrote that his clients relied on the agreement to their detriment.

Kirra Jones and Kathleen Hardee, from the Polsinelli firm in St. Louis, joined the motion on behalf of Honeywell International.

Wilson also moved to postpone a Jan. 29 settlement conference, writing that his clients would not be in position to properly evaluate Watts’s claims.

On Jan. 21, defendants Excelsior Inc. and Viking Pumps joined the motion to continue the trial.

Their lawyer, James Grabowski of Heyl Royster in Edwardsville, wrote that Watts had produced no medical records other than X-rays and a pathology report.

Wilkerson denied the motion to continue the trial on Jan. 22.

“The court’s schedule is simply not subject to a private agreement between defendants and plaintiff’s attorneys,” he wrote.

Wilkerson wrote that the parties made a decision to fail to conduct discovery at their peril.

Their contract dispute “is wholly unrelated to plaintiff’s claims against defendants and concerns matters beyond the court’s jurisdiction,” he wrote.

He wrote that all parties who had not been dismissed were expected to appear in person at the settlement conference.

On Jan. 27, defendant Borg Warner moved to remand the case to Madison County.

On Jan. 28, defendant Ingersoll Rand moved for transfer to federal court in Alaska.

Yandle denied the motions.

The settlement conference on Jan. 29 started at 8:30 a.m., and ended badly.

After it, Wilkerson ordered Watts to show why the court shouldn’t order him to pay Borg Warner and defendant Goodyear Tire and Rubber for their costs.

Wilkerson wrote that Watts represented through his attorneys that they would appear with unlimited authority.

“That did not happen,” Wilkerson wrote.

He wrote that Sean Barth represented Watts at the conference, and told the court he was in the same firm as Jackstadt.

“However, Mr. Barth had not entered an appearance in this case and had to consult with someone by phone as negotiations continued,” Wilkerson wrote.

“Indeed, Mr. Barth appeared unfamiliar with which defendants were still remaining in this case.”

Wilkerson wrote that he asked defendants if they knew Barth or had dealt with him in this case, and all defendants answered in the negative.

Jackstadt appeared at 11 a.m.

Wilkerson wrote that failure to bring necessary parties wasted precious judicial resources and the resources of any party prejudiced by the failure to follow court orders.

On Feb. 1, on behalf of Ingersoll Rand, Wilson moved to strike Watts’s pretrial disclosures or bar witnesses and exhibits he had not previously disclosed.

On Feb. 3, at a final pretrial conference, Yandle prohibited Watts from calling any witness except himself and Strauchen.

She ordered Watts to designate portions of exhibits he would offer at trial.

On Feb. 10, Ingersoll Rand, Honeywell, Excelsior and Viking Pump moved to strike Watts’s designations of deposition testimony.

Their lawyers wrote that he designated portions of depositions of defense witnesses in prior unrelated matters.

Also on Feb. 10, Jackstadt apologized to the court “for the mistakes made and the perceived lack of full preparedness” on Jan. 29.

Jackstadt wrote that he was currently the sole lawyer in the firm with an Illinois license, and that he had to cover an asbestos court motion docket at the same time.

He wrote that Barth was briefed but information given to him was incorrect. He also wrote that Goodyear and Borg Warner settled and waived their costs.

On Feb. 12, Yandle wrote that Watts sought to reserve the right to call numerous unnamed witnesses.

“Plaintiff cannot reserve to himself a right he does not have,” Yandle wrote.

“The court finds that the vague and boilerplate identification of categories of potential witnesses is insufficient and inconsistent with the spirit and purpose of Rule 26.”

“Discovery in this matter is closed and the time to depose any newly identified ‘may call’ witness has long passed.”

On Feb. 12, for Ingersoll Rand, Wilson notified Yandle that Watts intended to offer the entire transcript of Strauchen’s deposition instead of bringing him to trial.

Wilson wrote that Watts, who had obtained an order that he didn’t have to testify in person due to illness, had designated the entire transcript of his deposition.

“Plaintiff chose to file the instant lawsuit approximately 3,000 miles from his home in Alaska despite the lack of any connection whatsoever between plaintiff, his alleged claims, and the state of Illinois,” Wilson wrote.

He wrote that Watts presented no evidence that he was unable to attend his trial.

On Feb. 17, Yandle ruled that Watts must produce Strauchen live at trial.

She struck the deposition designations on Feb. 18, and ordered Watts to confer with defendants and identify excerpts.

She ruled that Watts could not testify by deposition unless he was unavailable.

That left very little for a jury to ponder, and Watts settled with all remaining defendants on Feb. 18.

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Organizations in this Story

Honeywell InternationalGeorgia-PacificCrane CompanyHeyl RoysterMadison County