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Judge Blasts Plaintiffs Firm Over Asbestos Suit
The National Law Journal
May 07, 2009
A Los Angeles judge has blasted one of the nation's leading plaintiffs firms in asbestos litigation for attempting to obtain an upper hand in the case through what he called a "type of judicially sanctioned extortion."
The judge's statements came in a lawsuit filed by Waters & Kraus on behalf of a Los Angeles man who died of mesothelioma in December 2007. Six months before, the man had been deposed in Texas, where the case was first filed. The case has since been re-filed in California. During the past month, industrial product manufacturer Crane Co. sought to exclude the man's deposition from the case. In court papers, Crane argued that the information gleaned from the deposition, which under Texas law is limited to six hours, was insufficient to obtain summary judgment in California.
On April 7, Los Angeles Superior Court Judge Aurelio Munoz, while refusing to grant summary judgment, concluded that Waters & Kraus had re-filed the case in California intentionally as a means to force a settlement. Calling such tactics a "waste of the court's time," Munoz noted that Waters & Kraus has played the same "grisly game of asbestos litigation" in at least nine cases.
Peter Kraus, managing partner of Dallas-based Waters & Kraus, told The National Law Journal that the judge "got it 180 degrees wrong." While not denying the firm's actions, Kraus said that its attorneys must file asbestos cases in jurisdictions where ailing clients don't have to endure lengthy depositions.
"And if they die, the facts necessary to prove their case die with them," he said.
Lawyers for Crane, in an April 24 appellate petition, said that the dispute could affect "potentially hundreds of pending and future asbestos personal injury and wrongful death actions in California."
"I definitely think this is something the defense and plaintiff's bar are going to watch very, very closely, and it will have very important ramifications regardless of whichever way it goes," said Alexandra Epand, a partner in the Los Angeles office of Nixon Peabody who handles asbestos litigation.
'BAD FAITH TACTIC'
The ruling came as Texas plaintiff's firms, including Waters & Kraus, have expanded operations in Los Angeles, which has become a hotbed for asbestos litigation. Waters & Kraus opened its Los Angeles office nearly a decade ago. In 2006, the firm added prominent trial attorney Gary M. Paul. This year, the firm, with nearly half its lawyers in Los Angeles, changed its California name to Waters Kraus & Paul.
The recent case was filed by John H. Washington Jr., a maintenance worker at a Los Angeles high school from 1966 to 1986. His deposition took place during less than five hours over four days in July. In August, his lawyers dismissed the case and re-filed the action in California. Washington died before he could be deposed further. Nicholas Vari, a partner in the Pittsburgh office of K&L Gates who represents Crane, declined to comment on the details of the case.
In court papers, Crane argued against using the Texas deposition because the more stringent burden for obtaining summary judgment in California, set forth in Scheiding v. Dinwiddie Construction Co., requires defendants to ask specific questions during a deposition regarding their products. During the Texas deposition, Washington did not implicate Crane's products, leaving the company no reason to ask such questions.
"Plaintiffs' conduct with respect to Mr. Washington's Texas deposition," Crane Co. said, "is a calculated and bad faith tactic specifically designed and carried out by Waters & Kraus to prejudice the defendant's rights to discovery."
Kraus disagreed. "The game-playing here is by the defendants, who literally depose these mesothelioma vicims to death, taking 35 to 40 hours in order to do discovery depositions that they routinely do in six to 10 hours in the rest of the country on the same facts and the same legal issues," he said.
His firm files cases where his clients have a better chance of completing their depositions before becoming too ill or dying, Kraus said. In Washington's case, he said, Crane did not object or request additional time during the Texas deposition and filed a motion to dismiss because the forum was inconvenient, he said. "In an effort to move Mr. Washington's case along during his lifetime, we voluntarily dismissed and re-filed it in California," Kraus said.
Vari told The National Law Journal that the time Crane spends on depositions in states other than California is irrelevant. Regarding Crane's motion to dismiss in Texas, he said that his client was still required to respond to the deposition.
In 2005, a California appellate court, ruling on the same deposition dispute in a separate case, Silvestro v. Bondex International, sided with Waters & Kraus in reversing the decision of a Los Angeles Superior Court judge to grant summary judgment. The panel found no evidence that the firm had "engaged in abusive litigation tactics."
