LEBANON, Ohio – Judge Robert Peeler of the Warren County court of common pleas has set trial in a year for a malpractice suit against the Edwardsville asbestos firm of the late Randy Gori.
In conference with lawyers for the firm and former client Kathleen Jones on March 18, Peeler adopted a schedule for trial starting next March 28.
Jones claims the firm settled a claim against AK Steel, employer of her late husband Tiger Jones, for less than she could have received through workers’ compensation.
She and Tiger retained the firm in 2011, and Gori filed a complaint in Madison County against AK Steel and 128 other defendants.
After Tiger died, the firm reached a settlement with AK Steel.
Kathleen Jones released all claims in 2013.
She applied for workers’ compensation in 2014, but the firm advised her that she breached the settlement agreement.
She withdrew her application.
Gori moved to withdraw as her counsel, but withdrew the motion after amending the settlement agreement.
A dispute over allocation of the settlement ensued between Tiger’s widow and his children from an earlier marriage.
Jones retained the late Joseph Brown of Lucco Brown in Edwardsville to represent her in proceedings over the allocation.
Brown withdrew upon finding a conflict of interest, and the late Thomas Falb of Williamson Webster in Alton replaced him.
The family settled the dispute.
In 2014, Jones retained Jack Mueller of Cincinnati to investigate the possibility of a malpractice suit.
The firm continued representing her in the Madison County suit until June 2017.
Mueller filed the Warren County suit for her in November 2017.
He sought damages from Gori, his firm, his former partner Barry Julian, Sara Salger, Erin Beavers, Martavious Thomas, Todd Mathews, and Brandon Belt.
In 2018, defense counsel Joseph Borchelt of Cincinnati moved to dismiss the complaint for lack of jurisdiction.
As an alternative, he moved for transfer to Illinois as a more convenient forum.
Peeler found he had jurisdiction because defendants purposely established contacts with Ohio residents and entered Ohio to secure a relationship with them.
As for convenience, he found factors in favor of an Illinois suit didn’t outweigh factors in favor of permitting it to remain in Ohio.
“If the trial is held here, defendants will be unwilling participants,” Peeler wrote.
“If the trial is held in Illinois, plaintiff will be an unwilling participant.”
In 2019, Mueller moved for summary judgment that Jones filed suit within the appropriate statute of limitations for Ohio.
Borchelt moved for summary judgment that under Illinois law, time ran out.
He wrote that the Joneses chose to hire an Illinois firm, “in order to take advantage of favorable Illinois law and a favorable Illinois jurisdiction.”
“The conduct giving rise to the alleged injury occurred in Illinois, the attorney client relationship was centered in Illinois, and Illinois has a significant interest in applying its laws to lawyers practicing exclusively within its borders,” Borchelt wrote.
He wrote that the Joneses didn’t end up in Madison County by accident.
“In 2015, there were 1,012 mesothelioma cases filed in Madison County, which represented nearly half of all asbestos related lawsuits in the U.S.,” he wrote.
He wrote that Madison County residents brought only six percent of the suits.
“Plaintiffs across the country flock to Madison County due to the fact that it has become a clearinghouse for asbestos malignancy claims, resulting from a number of factors that combine to facilitate the process of extracting maximum value from the defendants.”
Randy Gori died in January 2020, a victim of homicide.
Peeler granted substitution to widow Beth Gori as estate administrator last May.
In June, Peeler found Jones filed a timely suit.
He found Ohio law provides for borrowing of another state’s limitation period if a cause of action accrued there and the period is shorter than Ohio’s period.
He found that in Ohio, a limit of a year begins to run when a client discovers or should have discovered an injury relating to an attorney’s action.
He found the limit of a year begins to run upon termination of the attorney client relationship if that occurs later than the discovery.
He found that in Illinois, a limit of two years begins to run when a plaintiff discovers an injury and incurs damages directly through counsel’s neglect.
“While defendants spend the majority of their motion discussing in which state the cause of action accrued in this case, they fail to address the simple fact that Ohio’s statute of limitations for legal malpractice is shorter than Illinois’s statute of limitations for legal malpractice actions,” Peeler wrote.
“Consequently, the clear language of the borrowing statute does not apply in this case.
“Even if Illinois’s statute of limitations period were shorter than Ohio’s, the court still finds application of Ohio law more compelling, as Ohio is the state wherein this action accrued.”
He found the filing date was well within a year of the date the attorney client relationship ended.
This March, Peeler resolved a discovery dispute in Jones’s favor.
It started last year, when Borchelt served subpoenas on Lucco Brown and Williamson Webster for their files on the allocation dispute.
Brown had died in 2017, Falb in 2018.
Jones retained John Webster to file an action on Madison County’s miscellaneous remedy docket for an order quashing the subpoenas.
Associate judge Thomas Chapman didn’t quash the subpoenas but he didn’t open the files to the Gori firm either.
In January, he ordered the local firms to provide complete copies to Jones’s attorney Mueller.
Mueller delivered the files to Peeler, who read them in chambers.
On March 5, he ruled that none of the contested files would be turned over.
In his March 18 conference, Mueller and Borchelt agreed to cut off discovery on Nov. 1 and file dispositive motions by Dec. 1.
Peeler said plaintiff would file an expert report on Aug. 1, and defendant would file one on Sept. 1.
Peeler asked if they wanted to try mediation and when it might happen.
Mueller said it’s usually done after positions are known.
Borchelt said he’d like discovery to be wrapped up.
Peeler said, “It’s only 500 dollars. That’s hard to beat.”
Mueller and Borchelt estimated seven days for trial, and Peeler set it for eight.
“One day too many is better than one too few,” he said.