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Two big-city attorneys are scheduled to face off later this month in a courtroom in Angleton, Texas�a small Gulf Coast 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 payment that makes this asbestos case different. Stung in the past by litigation brought by plaintiffs alleging that they’ve been injured by exposure to asbestos, California-based Kelly-Moore Paint Co. (KM) has turned the tables on Union Carbide Corp. and Carbide’s successor, Dow Chemical Co. The paint company is seeking $1.2 billion in actual damages and treble punitive damages from Carbide and Dow for allegedly not telling KM about the risks involved in using asbestos-containing products. KM contends that Carbide and Dow are liable to it 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,” said Houston attorney Mark Lanier, who represents the plaintiff in Kelly-Moore Paint Co. Inc. v. Union Carbide Corp. Scott D. Lassetter, Union Carbide’s lead counsel and the managing partner of New York-based Weil, Gotshal & Manges’ Houston office, said that the suit is without merit. “It’s basically a kamikaze case,” Lassetter asserted. “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.” Carbide has petitioned the Texas Supreme Court for an emergency writ of mandamus that raises, among other issues, a question about whether the Brazoria County District Court in Angleton has jurisdiction to consider KM’s claim for damages based on anticipated future court judgments. The defendants allege in In re Union Carbide Corp., filed on Dec. 29, 2003, that KM is “improperly attempting to secure an unconstitutional advisory opinion” that Carbide 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 district court denied Carbide’s motion to dismiss the suit on the jurisdictional issue in November and a Dallas district court denied a mandamus petition in December 2003. KM filed the suit in May 2002 in Brazoria County, where the trial is scheduled to begin on March 22. The paint company alleges in its fifth amended petition that Carbide engaged in fraud and negligent misrepresentation when it sold KM raw asbestos fiber under the brand name Calidria in the 1960s and 1970s.

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