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HOUSTON — Two big-city attorneys are scheduled to face off later this month in a courtroom in Angleton, Texas — a small community that has been friendly to plaintiffs in the past — to begin a trial in an asbestos-related suit in which the plaintiff wants up to $6 billion in damages. But it’s not just the plaintiff’s quest for a 10-figure payoff that makes this asbestos case different. Stung in the past by litigation brought by plaintiffs alleging they’ve been injured by exposure to asbestos, California-based Kelly-Moore Paint Co. Inc. has turned the tables on Union Carbide Corp. and UCC’s successor, Dow Chemical Co. The paint company is seeking $1.2 billion in actual damages and treble punitive damages from UCC and Dow for allegedly not telling KM about the risks involved in using asbestos-containing products. KM contends that UCC and Dow are liable to KM for the loss in business value it suffered as a result of past and anticipated future asbestos litigation. “Because Kelly-Moore has had this big asbestos albatross around its neck, this has devalued its business,” says Houston attorney Mark Lanier, who represents the plaintiff in Kelly-Moore Paint Co. Inc. v. Union Carbide Corp., et al. Scott Lassetter, UCC’s lead counsel and the managing partner of Weil, Gotshal & Manges in Houston, contends the suit is without merit. “It’s basically a kamikaze case,” Lassetter contends. “It doesn’t have any basis at all. They made up a lawsuit, and they’re going to try to fake a jury into believing it.” UCC has petitioned the Texas Supreme Court for an emergency writ of mandamus that raises, among other issues, a question about whether the 23rd District Court in Angleton has jurisdiction to consider KM’s claim for damages based on anticipated future court judgments against the paint company. The defendants allege in In Re Union Carbide Corp., filed on Dec. 29, that KM is “improperly attempting to secure an unconstitutional advisory opinion” that UCC is responsible for future asbestos personal-injury cases that have yet to be filed against KM and for which judgments have not been rendered and may never be. The 23rd District Court denied UCC’s motion to dismiss the suit on the jurisdictional issue in November and the 14th Court denied a mandamus petition in December. KM filed the suit in May 2002 in the 23rd District Court, where the trial is scheduled to begin on March 22. The paint company alleges in its fifth amended petition that UCC engaged in fraud and negligent misrepresentation when it sold KM raw asbestos fiber under the brand name Calidria in the 1960s and 1970s. Lanier, head of the Lanier Law Firm in Houston, says the fraud case is probably the first of its kind in an asbestos setting. “The issue is, did Union Carbide lie about asbestos health effects in order to seduce Kelly-Moore into buying more asbestos? I think the answer is yes,” Lanier says. Lassetter alleges that everything KM claims it did not know about the hazards of asbestos, it in fact did know. He says that KM, with about 2,400 employees, claims that nobody in the company knew in the 1960s and 1970s that there were dangers associated with using asbestos, although much of the world knew at the turn of the 20th century that asbestos could kill. Jeff Rensberger, a South Texas College of Law associate dean who teaches courses on civil litigation, says it’s not that unusual in products liability litigation for a defendant in a suit to seek to pass liability upstream to a manufacturer or supplier. What’s unusual in Kelly-Moore, Rensberger says, is that a company that has been a defendant in the past is “hopping over” to be a plaintiff. Another irony, he says, is that KM’s counsel is Lanier, who has successfully represented injured workers in suits against companies like Kelly-Moore that have used asbestos in their products. Rensberger says Lanier has done so well with injured workers’ suits that he apparently has developed a new category of asbestos cases. “There’s a huge scramble to find assets in asbestos,” Rensberger says. “A lot of the original [asbestos] defendants are in bankruptcy.” Mary Alice Robbins is a reporter for Texas Lawyer , a Recorder affiliate based in Houston.

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