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In a move the 5th U.S. Circuit Court of Appeals described as “extraordinary” and “rarely invoked,” the court ordered that two asbestos cases be removed from U.S. District Judge Samuel B. Kent of the Southern District of Texas, partly because of hostility he displayed to the corporate defendants in those cases. The mandamus action, decided June 14, involves a jurisdictional fight between plaintiffs’ lawyers and lawyers for DaimlerChrysler Corp., Ford Motor Co. and General Motors Corp., who are being sued by numerous plaintiffs for injuries allegedly caused by asbestos in “friction products” in the automakers’ vehicles. The automakers successfully removed two cases, Hector M. Armstrong, et al. v. U.S. Gypsum Co., et al. and James Edwards Jr., et al. v. U.S. Gypsum Co., et al., from state court to Kent’s court on April 18, claiming they are related to the bankruptcy proceeding of Federal-Mogul Global Inc., a supplier of automotive parts including parts that allegedly contained asbestos. That case is pending before the U.S. District Court for the District of Delaware. The Delaware federal court then ordered all the friction-product cases pending against the automakers to be transferred to itself to determine whether they were related to the Federal-Mogul bankruptcy proceedings. Although the Delaware court determined on Feb. 8 that the cases were not related to the bankruptcy case, the 3rd U.S. Circuit Court of Appeals accepted the defendants’ appeal for jurisdictional review on Feb. 11 and stayed the Delaware court’s order. On May 10, Kent remanded Armstrong and Edwards to state court. The defendants later filed a mandamus action against Kent in the 5th Circuit. The court allowed Kent to respond to the mandamus action in a letter. Kent, who is known for writing blistering opinions when lawyers displease him, castigated the automakers in his letter calling them “arrogant and remarkably callous,” alleging that they attempted to delay Armstrong and Edwards by taking advantage of the federal court system. Kent based his decision to remand the cases to state court on a Dec. 28, 2001, 5th Circuit ruling — Arnold v. Garlock — in which the appeals court denied asbestos defendants’ request to remove their liability cases to federal court as part of the Federal-Mogul bankruptcy. “The automobile manufacturers have relentlessly employed the most manipulative and craven approach to litigation that this court has ever witnessed,” Kent wrote in his May 29 response to the 5th Circuit regarding the mandamus action. “Drawing upon their enormous coffers, the automobile manufacturers have hired an elite force of lawyers, whose primary purpose appears to be dilatory,” Kent wrote. Kent did not return a call for comment. Christopher Landau, a partner in the Washington, D.C., office of Kirkland & Ellis who represents the automakers, denies that the companies are attempting to delay the asbestos cases. The future of the two cases that were pending before Kent will likely be determined by the 3rd Circuit. HOSTILITY DEMONSTRATED? In its mandamus decision in In Re: DaimlerChrysler Corp., Ford Motor Co. and General Motors Corp., the 5th Circuit ruled that Kent had overstepped his authority by remanding the cases to state court while those cases were bound by the stay issued by the 3rd Circuit. The per curiam opinion by 5th Circuit Judges E. Grady Jolly Jr., Edith H. Jones and Carl E. Stewart also overturned sanction motions that Kent had granted against the automakers at the plaintiffs’ request. The ruling also directed George P. Kazen, chief judge of the Southern District of Texas, to reassign all pending and future friction-product claims that come before Kent to a different U.S. district judge. “We find it necessary to order this and subsequent cases reassigned because of the hostility demonstrated toward the defendants in the district court’s response to the petitions for mandamus,” the opinion stated. Stewart concurred in the opinion but did not join the portion of the ruling that ordered the reassignment of cases. Fred Baron, a partner in Dallas’ Baron & Budd, which represents the plaintiffs in Armstrong and Edwards, says his firm will ask the 5th Circuit court to rehear the mandamus case en banc. “We think it’s totally uncalled for,” Baron says of the removal of the cases. “Judge Kent is expressing in words what so many of the other judges have expressed orally or otherwise over how the lawyers for the asbestos defendants have abused the system. And I think his frustration reached the boiling point,” Baron says. Landau, who represents the automakers, denies that defense lawyers have used delay tactics to stall the asbestos cases. “That’s absolutely incorrect, and that issue was not before Judge Kent,” Landau says of the alleged delay tactics. “That is the argument that the other side is making in Delaware and in the 3rd Circuit.” On June 17, the 3rd Circuit heard oral arguments regarding the removal to Delaware of the asbestos cases against the automakers. Notes Landau, “The point with Judge Kent is he went into the merits of the claims, and the point is the merits of the claim were not before him.”

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