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At first it seemed a coincidence that almost all asbestos litigation filed by a San Francisco plaintiffs’ firm was sent to the same judge for pretrial motions. When defense attorneys took a closer look, they saw a disturbing pattern. “It appears that over the past two years, of 173 asbestos cases filed by the plaintiffs’ firm of Wartnick, Chaber, Harowitz & Tigerman, nearly all (168) have received even case numbers,” attorney Gregory Meronek wrote in a Jan. 22 letter to the San Francisco Superior Court. A Recorder review covering 1999 and 2000 showed that of 201 asbestos complaints filed by the San Francisco-based Wartnick’s office, 189 received even docket numbers. That meant that in 94 percent of the firm’s cases, pretrial motions would be heard by Judge Ronald Quidachay instead of Judge David Garcia. Quidachay left law and motion to become presiding judge in early January; a review of Wartnick complaints filed so far this year shows that 19 out of 39 complaints — or 48 percent — were assigned even numbers. In his letter, Meronek, an associate with Carroll, Burdick & McDonough, told court executive officer Gordon Park-Li that something looked fishy. “Since deputy clerks are supposed to file cases and assign case numbers in the sequence that pleadings are presented to them, this pattern obviously cannot be explained by random chance,” he added. “The implications of this pattern and practice have raised serious concerns.” Meronek asked Park-Li for an explanation. He has not heard from him or Quidachay or name partner Harry Wartnick of the plaintiffs’ firm, both of whom were copied on the letter. Wartnick declined to discuss how such a high percentage of his office’s asbestos complaints could have received even numbers. “I have no comment on that,” Wartnick said Friday. “I’m not going to reduce myself to addressing these accusations in the press.” He instead questioned why asbestos defense counsel would raise these issues with the court. “I think it speaks for itself,” Wartnick said. The implication of assigning only even numbers to cases was that all were sent to Quidachay, where they were more likely to survive summary judgment motions, Meronek said. San Francisco has two law and motion judges. Quidachay handled evenly numbered matters. Garcia gets the odd-numbered cases. Quidachay said in an interview last week that he thought the number of asbestos cases sent to him “was about the same as went to David [Garcia.]“ He also said that he never thought much about “which [summary judgment motions] I granted and didn’t.” The presiding judge said that after receiving Meronek’s letter he asked Park-Li to look into the situation. Quidachay said he doesn’t believe the court or its personnel are responsible for any wrongdoing. Park-Li said he ordered his staff to look into the matter. He said no definitive answer has been found, and the inquiry is still open. He said his preliminary findings point to two possible explanations as to why a major player in asbestos filings almost always came up with even numbers. “One initial response is that the messengers were waiting for — I don’t want to use the word manipulating — but were essentially presenting the cases in such a fashion that they would get odd or even numbers,” he said. Law firms often call a messenger service to pick up their complaints and have them bike the suits to the courthouse for filing. Park-Li said another possible explanation was that the two filing clerks at the main desk would hand back and forth the stamp that gives each case its number. Only one stamp gadget is used to avoid numerical duplication, he said. If the clerks alternated using the stamp, he said, presumably one line of filings would always get the even numbers, the other the odd numbers. This could occur even over a two-year period. Park-Li said he had no suspicions of wrongdoing by any of his clerks. “I’ve never heard or got an inkling that some clerk was in collusion with some firm or some messenger,” he said. “It’s just not worth it.” He added that “we’re still looking into it,” and he hopes to have a more clear-cut explanation for Meronek and other asbestos defense attorneys “sooner or later.” Meronek said defense attorneys had theories as to why a plaintiffs’ firm would like to avoid Garcia. “The perception was that Judge Garcia was more of a strict constructionist on summary judgment motions,” Meronek said in an interview. “He would hold parties to stricter standards … . Garcia would look at the thing with a much closer eye.” Quidachay, however, was thought to be “more lenient” on summary judgment motions and more likely to allow the cases to go to trial, Meronek said. “Some would say that Judge Quidachay had a more pro-plaintiff style,” Meronek said. Another asbestos defense attorney, who asked that his name not be used, said he believes there should be a formal investigation of the matter. “This should go to the district attorney and the Bar Association,” said the San Francisco East Bay lawyer. “I have filed some righteous motions that I thought were dispositive and fatal to the plaintiffs,” he said, only to have Quidachay deny them. A San Francisco Bay Area attorney said he wasn’t sure that Garcia was more or less likely to grant summary judgment motions, but he agreed the “perception” was that he would. “I don’t know how that happened or why that happened,” he said regarding the even-numbered conundrum. “I would think the Wartnick office may be able to help you more.” Although declining to explore the happenstance of even-numbered cases, Wartnick eagerly questioned the ethical behavior of Carroll Burdick lawyers for sending a letter to the court raising the issue. “I’m amazed that the management at Carroll, Burdick & McDonough would allow this type of behavior to occur,” he said. “It is totally inconsistent with the performance that I have encountered in the past from the Carroll Burdick firm.” Wartnick questioned why the even-number issue arose now, more than two months after Meronek sent his letter to Park-Li. “I’m surprised that this is news today,” he said Friday. Although asbestos defense attorneys began to suspect something smelled funny long ago, they weren’t sure what to think without some hard evidence. That was provided by the Oakland, Calif., firm of Berry & Berry, which has been designated by San Francisco and Alameda County, Calif., courts as coordinating defense counsel for discovery, including records production and scheduling depositions. In a computer search, Berry tracked Wartnick’s asbestos cases from Dec. 10, 1998 through Dec. 12, 2000, and determined that all but five received even numbers when filed with the San Francisco court clerk. Meronek said when he saw Berry’s printout of even-numbered cases, he felt he had to act. “There is a real appearance of potential improprieties, when something like this jumps out as this did,” he said. “You have to say, ‘What’s going on here?’ This just isn’t right. If there’s a reason for it, tell us.” Meronek said the court’s silence has been disturbing in its own right. “Letters get lost and people get busy,” he said. “I’m reluctant to come to any conclusion without someone having the opportunity to say this is what happened.” He said asbestos defense attorneys are awaiting an explanation. He said the even-number mystery remains a topic of conversation among defense counsel during taking of depositions. “We couldn’t understand how it could happen unless someone in the clerk’s office was working with the Wartnick office,” he said. “But you really don’t know what happened.”

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