CHICAGO - Asbestos attorney John Simmons of Alton alleges at U.S. district court that J-M Manufacturing of Los Angeles sued his firm in retaliation for winning a $22.2 million verdict.
The Simmons Hanly Conroy firm and eight of its attorneys moved on July 19 to dismiss J-M’s claims of fraud, conspiracy, and racketeering.
“J-M is no victim here,” the firm’s counsel John Storino of Chicago wrote.
Storino claimed J-M made a conscious decision to sell asbestos cement pipe into the late 1980s despite well known dangers.
He claimed J-M sued its lawyers for malpractice after a California trial produced a $30 million verdict with 74% of liability for J-M.
“This lawsuit is yet another attempt by J-M to blame others for foreseeable consequences of its own decision to make and sell a deadly product,” he wrote.
Ashwin Ram of Los Angeles sued the firm, Nicholas Angelides, Perry Browder, Suvir Dhar, Crystal Foley, Amy Garrett, Benjamin Goldstein, Stan Jones and Deborah Rosenthalin May.
He claimed the firm filed more than 430 cases against J-M since 2001 and J-M settled more than 75 cases based on facts the firm presented.
“It is now clear that at least some of those facts were not facts at all,” Ram wrote.
Ram claimed a story was offered in case after case that a plaintiff or decedent was exposed when pipe was cut with a power saw or drilled with a power drill.
He claimed the firm developed a narrative and a plan for demonstrating consistent and prolonged exposure.
He claimed the firm reconstructed or fabricated a work history, determined what products were relevant, and fit the history around a defendant.
He claimed the firm identified any solvent company that might have had a product containing asbestos at any site where a client might have worked.
He further claimed the firm scripted testimony on product identification and exposure; that it offered unverifiable and fraudulent details about employers and coworkers; that it obstructed efforts to obtain evidence that might refute the narrative; that it concealed information about claims with bankruptcy trusts or delayed those claims until the conclusion of tort litigation and that the firm filed suits to extract or entice settlements in other matters.
“The firm knows the cost of defense and the risk of a runaway verdict in its hand picked forum provide settlement leverage even for dubious lawsuits,” he wrote.
He claimed mass asbestos litigation led to bankruptcies of some of the country’s most prominent companies and developed into a Petri dish for fraud.
He claimed the trusts operate with little or no judicial oversight and that firms with the most plaintiffs populate the advisory committees and write the distribution procedures.
“The parallel sources of compensation, tort and trust, create an environment that facilitates fraud,” he wrote.
“No asbestos plaintiff or claimant is being sued for liability in this complaint.
“Based on information and belief, these individuals have been exploited by the Simmons Hanly Defendants to effectuate the scheme.”
Storino responded in his motion to dismiss that the vast majority of the allegations in the complaint were about firms other than Simmons Hanly and J-M’s general gripes.
He claimed J-M could have challenged the firm’s conduct in court by moving for sanctions, unwinding settlements or seeking attorney discipline.
“J-M did not pursue those and admits it does not want to unwind any settlements,” Storino wrote.
He found no surprise that after a mesothelioma latency period of 20 to 30 years, J-M found itself on the receiving end of successful injury claims.
He claimed J-M’s based its mail and wire fraud allegations solely on litigation activity including discovery responses, depositions, and settlement communications.
“Litigation activities cannot constitute mail or wire fraud as a matter of law,” he wrote.
“J-M’s allegations of obstructing justice and witness tampering are nonsensical, as the statutes it cited apply only to federal proceedings and this case involves none.”
“As every trial lawyer knows, contradictions and conflicting evidence are hallmarks of litigation.”
Three days earlier the firm moved to dismiss under California law that prohibits suing as a strategy to interfere with participation in public issues.
Storino claimed black letter law and basic logic made clear that J-M could not have been defrauded if it never relied on an alleged misrepresentation.
He claimed reliance would have been unreasonable as the alleged misrepresentations came from a litigation adversary at arm’s length.
“Reasonable reliance by a party upon an attorney’s representations cannot exist where the interests of that party are adverse to those of the attorney’s client,” he wrote.
District Judge Robert Gettleman presides.