A legal malpractice suit about to be tried in Middlesex County alleges that a New Brunswick personal injury firm incompetently handled asbestos litigation that could have produced a multimillion-dollar recovery.
The estate of an asbestosis victim alleges that Wysoker, Glassner, Weingartner, Gonzalez & Lockspeiser put a roughly 2,000-case docket in the care of a single attorney who, by his own admission, took the easy route of suing "soft targets."
The firm named as defendants companies that had nothing to do with the decedent’s exposure and failed to sue most of those that were to blame, says Glenn Bergenfield, who represents the plaintiff in Estate of Petit-Clair v. Wysoker Glassner, MID-L-639-10.
"The business model is to join a large group of suits and sue anyone, [then] hang in there for a decade or two until the companies offer small settlements," Bergenfield says.
As a result, only about $80,000 — or $140,000 according to the firm — was recovered in a case worth millions of dollars, the suit alleges.
The firm claims that its efforts to determine which entities to sue were hampered by the fact that Alfred Petit-Clair had died before it took the case.
Petit-Clair was a welder at the Federal Shipbuilding and Drydock Company in Kearny from 1942 to 1947, where he helped build the destroyers used to fight Word War II, and in the process, was exposed to asbestos contained in insulation and welding materials.
Later, he spent more than 30 years as a union organizer for the Industrial Union of Marine and Shipbuilding Workers of America and then the United Steelworkers of America, during which time he allegedly continued to spend time at shipyards, experiencing additional exposure.
Diagnosed with mesothelioma in 1990, he died on Oct. 17, 1991.
Petit-Clair’s widow, Geraldine, and his son, Alfred Petit-Clair Jr., a lawyer, brought the case to Wysoker Glassner in 1992. They met with firm founder Jacob Wysoker, who had regularly socialized with Petit-Clair and Terry Foy, another former shipyard co-worker.
The plaintiffs say that partner Leo Loeb, the only lawyer in charge of the firm’s asbestos cases, was present at the initial meeting and that they told the lawyers Foy was a potential witness.
Loeb filed suit in Middlesex County on May 11, 1992. He died in 1993 and Robert Krieger took over his cases. According to the plaintiffs, neither Loeb nor Krieger interviewed Foy, who died in 1995.
Nor did they take depositions, send out interrogatories or investigate. Instead, the firm named "large, well-known asbestos manufacturers … without any proofs … and waited for the payout," Bergenfield says in the estate’s trial brief. "Krieger’s amateurish work resulted in the firm collecting tiny settlements in this multimillion-dollar mesothelioma case."
Krieger admitted in a deposition he did no investigation and when asked if he had any evidence against any of the nine companies sued, answered no. He said he chose them as "soft targets," "softer targets" and even the "primary soft targets."
Over the years in the Petit-Clair litigation, Krieger recovered $22,785 from Babcock and Wilcox, $9,000 from Johns-Manville, $8,131 from Flintkote, $2,000 from Garlock Sealing Technologies, and $4,941 from the Center for Claims Resolution, a nonprofit formed to settle, pay and defend asbestos claims. Each time Krieger took a fee, Bergenfield says.
No fee was taken, however, from the final sum, $36,337 from GAF Corp., because Petit-Clair Jr., who practices in Perth Amboy, told Krieger in 2009 he was taking over the case.
When Petit-Clair Jr. requested the file, Krieger told him it had been destroyed. Bergenfield learned through discovery that the file was a casualty of a 2002 sewerage leak in the firm’s basement, where it had been stored as a closed case.
He contrasts the monies received by the Petit-Clairs with 11 asbestos suits in New Jersey that brought in $1 million or more. The largest was a $30.3 million Bergen County verdict in Buttitta v. Allied Signal, A-5263-07, in 2008, which was upheld on appeal.
The malpractice suit was lodged in 2010. Wysoker Glassner tried to have it thrown out on the ground that the six-year limitations period had run, but Superior Court Judge Jessica Mayer denied summary judgment on April 5.
Bergenfield says he has been able to uncover a lot of evidence concerning the source of the asbestos and the names of co-workers who could have provided information and testified.
Bergenfield expects the defendants to argue at trial that Petit-Clair Jr. had a duty to assist with the asbestos case as a lawyer who was paid a referral fee and that he must have reviewed his mother’s responses to 1993 interrogatories, which did not mention Foy.
Bergenfield told the court in his brief that the firm should not be allowed to shift responsibility to Petit-Clair Jr., who is not a litigator and hired it to handle the case, and that its payment of a referral was improper because neither Wysoker nor Loeb was a certified civil trial attorney.
The lawyer defending the case, Aileen Droughton of Red Bank’s Traub Lieberman, Straus & Shrewsbury, says, "Our position is that the case is meritless and we’re confident the jury will reach the same conclusion, assuming it even gets to the jury."
Krieger did not return a call. •