A New Brunswick law firm has been hit with a $750,000 jury verdict for bungling a multimillion-dollar asbestos case.
The verdict against Wysoker, Glassner, Weingartner, Gonzalez & Lockspeiser was handed down Wednesday after a nine-day trial in Middlesex County Superior Court.
Much of the trial in Estate of Petit-Clair v. Wysoker Glassner, MID-L-639-10, revolved around the question of how asbestos litigation should be handled.
The suit charged that the firm used a high-volume, low-return model for asbestos cases, sued incorrect parties and failed to sue some culpable ones.
As a result, the estate of a shipyard worker who died of mesothelioma recovered only $83,000 — or $140,000, according to the firm — in a case worth $6 million, the suit alleged.
Alfred Petit-Clair, a welder at the Federal Shipbuilding and Drydock Co. in Kearny from 1942 to 1947, was exposed to asbestos in insulation and welding materials in the process.
Later, Petit-Clair spent more than 30 years as an organizer for the Industrial Union of Marine and Shipbuilding Workers of America, and then the United Steelworkers of America. He continued to spend time in shipyards during that period, experiencing additional exposure to asbestos.
Petit-Clair was diagnosed with mesothelioma in 1990 and died in 1991 at age 76. His widow, Geraldine, and his son, Alfred Petit-Clair Jr., an attorney in Perth Amboy, met in 1992 with Jacob Wysoker, founder of the Wysoker Glassner firm, who had socialized regularly with Petit-Clair and another former shipyard worker, Terry Foy.
Partner Leo Loeb, the firm’s only asbestos lawyer, was at the meeting, at which Petit-Clair’s wife and son told the lawyers Foy was a potential witness.
The firm paid a referral fee to Petit-Clair Jr., which was improper because neither Wysoker nor Loeb was a certified civil trial attorney.
Loeb filed suit in Middlesex County on May 11, 1992, naming nine companies. He died in 1993, and Robert Krieger took over his cases. The suit said neither Loeb nor Krieger interviewed Foy, who died in 1995.
Krieger admitted in a deposition that he had no evidence against the nine companies.
Over the years, the firm collected $22,785 from Babcock and Wilcox, $9,000 from Johns Manville, $8,131 from Flintkote Mines, $2,000 from Garlock Sealing Technologies, $4,941 from the Center for Claims Resolution (a nonprofit group set up to settle, pay and defend asbestos claims) and $36,337 from GAF Corp.
During the nine-day trial, Superior Court Judge Heidi Currier refused to allow the defendant to shift responsibility to Petit-Clair Jr., noting the referral payment was improper, according to plaintiff lawyer Glenn Bergenfield, a Lambertville solo.
He claims that Wysoker Glassner’s lawyer, Aileen Droughton of Red Bank’s Traub, Lieberman, Straus & Shrewsbury, argued that the younger Petit-Clair had a duty to assist with the case because he received the referral fee and reviewed his mother’s responses to 1993 interrogatories, which did not mention Foy.
Droughton denies that, and, at any rate, Currier turned down Bergenfield’s request to bar testimony from the defense expert on legal malpractice, attorney Frances Tomes.
Bergenfield claimed that Tomes, of Tomes & Hanratty in Freehold, was a fact witness because she discussed the case with Loeb several times and shared information with him on that case and others.
The judge rejected Bergenfield’s claim that Tomes had an interest in the outcome. But Bergenfield says Tomes testified that it is not unusual to sue the wrong people in asbestos litigation.
Bergenfield says Wysoker Glassner did not conduct an investigation, send out interrogatories or take depositions before filing suit. It failed to sue most of the companies that were to blame, Bergenfield says.
And it placed its docket of roughly 2,000 cases in the hands of one attorney, who, by his own admission, took the easy route of suing “soft targets.”
Bergenfield identified more than 400 co-workers of the decedent and others who the firm might have interviewed to learn about the sources of the decedent’s exposure. But, he says, Wysoker Glassner maintained at trial that such spadework would be fruitless.
“Their defense was, even though they did nothing, that was consistent with the standard of care in New Jersey,” Bergenfield says.
Droughton says the 400-worker list does not demonstrate a breach in the standard of care. She says Bergenfield obtained the list from the University of Maryland, whose archivist testified that no lawyers requested the information before Bergenfield did. In addition, Droughton says there’s no evidence the 400 people would have pertinent knowledge.
She also disputes Bergenfield’s assertion that Petit-Clair was exposed to asbestos as a union organizer.
And she says Tomes testified that Wysoker Glassner acted reasonably in choosing defendants because they had been found in other cases to have supplied asbestos to the Petit-Clair’s plant.
Droughton will move for a new trial and appeal if it is not granted.
Bergenfield sought $6 million in damages, which he said was equivalent to the average in 183 asbestos verdicts around the country from 1989 to 2011. Still, he says he is satisfied with the $750,000 award, calling it “a sensible verdict.”
He plans to petition under Saffer v. Willoughby, 143 N.J. 256 (1996), for $1.2 million in fees, expenses and prejudgment interest.
Krieger did not return a call.