CHARLOTTE - From 430,000 asbestos lawsuits Georgia Pacific entity Bestwall selected 221 to support its theory that plaintiffs inflated settlements by concealing evidence of other exposures.
Bestwall aims to show Bankruptcy Judge Laura Beyer that each plaintiff alleged one set of exposures in claims against private trusts and a different set of exposures in court.
Bestwall’s cases remain under seal but a committee of plaintiff lawyers provided a clue to their impact by calling them “salacious and defamatory.”
The plaintiff committee wants Beyer to find all 221 cases irrelevant.
They claim Bestwall can’t prove all the elements of fraud in any of the cases.
Bestwall counsel Richard Worf of Charlotte claims he doesn’t have to prove fraud.
On Jan. 7 he wrote, “To be sure, the facts of many of the non disclosure claims paint a picture of questionable conduct by plaintiffs and their counsel.”
He claimed some plaintiffs executed affidavits of exposures to trust products before or shortly after denying those exposures in tort cases.
“In still other cases plaintiffs executed affidavits attesting to dozens of alternative exposures to trust products that the debtor could have used to greatly reduce its risk of being found liable and the potential amount of any liability,” he wrote.
Georgia Pacific created Bestwall to resolve its asbestos liability and Bestwall petitioned to reorganize in 2017.
Bestwall moved for an estimation hearing similar to trial to determine the amount it would need to cover its liabilities.
The plaintiff committee opposed estimation and argued that Beyer could determine future liability by reviewing past liability.
Bestwall advanced its theory and Beyer granted estimation.
Bestwall sought access to trust claims and trusts resisted.
Through litigation and negotiation Bestwall obtained a random sample of claims.
Last October, the plaintiff committee moved to exclude from the estimation hearing statements or other alleged evidence from incomplete files.
Attorney Robert Cox of Charlotte wrote that Bestwall picked statements from claims settled long ago and self serving data from trust claims resulting in a skewed presentation.
He claimed Bestwall intends to present 79 individual claims and 142 in the aggregate.
He claimed the average age of the settlements is 14 years.
He claimed it would take significant time to locate documents and much if not all the missing information could never be recovered.
He claimed neither the lawyers nor the judge would know what transpired orally.
He claimed Georgia Pacific “had the ability and resources to protect itself from settling on the basis of incomplete information.”
He predicted a trial on each file.
“The court should compel the debtor to certify under penalty of perjury that the claimant file for an alleged non disclosure claimant is complete and rule that absent such certification, any information about such alleged non disclosure claimant is inadmissible at the estimation trial," he wrote.
Worf objected to the motion in December, claiming Bestwall produced all the documents it had, served subpoenas on 31 firms and deposed eight firms.
“The evidence leaves no doubt that numerous exposures asserted in trust claims were not disclosed in those suits and in many cases were expressly denied and that this impacted the amounts the debtor paid in settlement," he wrote.
“Regardless of whether the statements in those trust claims were true, the debtor would have been able to use them to reduce its risk and settlements.”
He claimed failure to disclose occurred across a wide array of plaintiff firms and jurisdictions.
“They are quite simply asking to be relieved of the burden of preparing their cases, perhaps because they fear they are not able to rebut the debtor’s evidence," he wrote.
Cox amended the plaintiff committee’s motion to hold Bestwall to fraud standards.
“The debtor intends to introduce salacious and defamatory allegations about alleged omissions against long dead claimants and their counsel who are unable to defend themselves," he wrote.
He claimed Bestwall alleged wrongdoing as a litigation and political strategy and to color the proceedings and public perception.
He claimed Bestwall can’t ask the court to assume that any settlements would have been different if claimants and their attorneys had disclosed alternative exposure.
“The debtor must prove that the alleged non disclosure had actual consequences in each individual case," he wrote.
He claimed inconsistent statements are not substantive evidence and are generally admissible only for impeachment.
“Further, an inconsistent statement can be admitted for impeachment only if the witness is given an opportunity to explain or deny the statement," he wrote.
He claimed more than 35% of claimants were dead by the conclusion of litigation.
He claimed statements in trust admissions might have been made by someone on behalf of the injured person.
“Courts routinely exclude salacious evidence that cannot support a claim," he wrote.
Worf responded that Bestwall didn’t offer the evidence to recover damages, rescind settlements or make any other affirmative claim.
“Convincing a jury that alternative exposures are the cause of an alleged asbestos related injury or a contributing cause is difficult if not impossible if the plaintiff denies or fails to acknowledge those exposures," he wrote.
He wrote that the 221 cases constituted a substantial portion of Georgia Pacific’s highest value claims and accounted for a large amount of its historic indemnity payments.
He wrote that the committee offered no support for a notion that lawyers lack an obligation to tell the truth under both the discovery rules and the ethical rules.
“The plaintiffs in the tort actions are not witnesses in the estimation trial and the debtor will not be impeaching them," he wrote.
He wrote that the committee’s experts will be witnesses, not the plaintiffs.
Beyer plans to hear argument on Jan. 23.