SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL CIVIL WEST

Transcription

1 CHRISTOPHER MOORE STEVENS [SBN ] LKP GLOBAL LAW, LLP 01 Avenue of the Stars, Suite 0 Los Angeles, California 00 Telephone: () -0 Fax: () - CStevens@lkpgl.com On behalf of Defendant Discovery Committee SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL CIVIL WEST May 0:PM Coordinated Proceeding Special Title (Rule.0) LAOSD ASBESTOS CASES CASE NO. JCCP Assigned for All Purposes to the Honorable Emilie H. Elias in Department NOTICE OF DEFENDANT DISCOVERY COMMITTEE S MOTION PROPOSING DISCLOSURE REQUIREMENTS FOR PERSONAL INJURY CLAIMS TO U.S.C.A. (G) ASBESTOS TRUSTS [MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CHRISTOPHER M. STEVENS, INCLUDING EXHIBITS; REQUEST FOR JUDICIAL NOTICE; AND PROPOSED ORDER FILED CONCURRENTLY HEREWITH] Judge: Honorable Emilie H. Elias Date: June, Time: _1: p.m. Location: Dept Notice of Defendant Discovery Committee s Motion Proposing Disclosure Requirements for Personal Injury Claims U.S.C.A. (G) Asbestos Trusts

2 TO THE COURT, ALL PARTIES TO COORDINATED PROCEEDING SPECIAL TITLE (RULE.0) - LAOSD ASBESTOS CASES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June,, at 1: p.m., or as soon thereafter as the matter may be heard in Department of the Superior Court Of The State Of California For The County Of Los Angeles Central Civil West, located at 00 S. Commonwealth Avenue, Los Angeles, CA 000, Honorable Emilie H. Elias presiding, Defendant Discovery Committee will move the Court to enact asbestos trust fund claim and fact disclosure obligations in furtherance of the apportionment of liability policy of the State of California set forth in the Fair Responsibility Act of, codified in California Civil Code 1.. For the reasons set forth in the accompanying Memorandum of Points and Authorities, Defendant Discovery Committee requests that this Court enter an order that requires asbestos personal injury plaintiffs in Los Angeles Superior Court to: 1. Provide a written statement under oath that sets forth all factual information relating to all asbestos exposures that the plaintiff attributes to each operating (G) asbestos trust and to each entity that has commenced bankruptcy proceedings and/or a trust formation process;. produce copies of all claim forms and supporting factual information, and all requests for deferral, delay, suspension or tolling of claim evaluation that have been submitted to (G) asbestos trusts;. produce copies of all declarations, affidavits or other verified statements of plaintiff that memorialize asbestos exposure including any such statements that have not been submitted to (G) asbestos trusts;. provide a written statement under oath certifying that plaintiff has filed all (G) trust claims for which plaintiff has any factual basis. This Motion is brought pursuant to the April, order of this Court authorizing this motion and its page length, as a component of the ongoing case management order proposal initiative currently under way before this Court, and is based upon this Notice of Motion, and the - - Notice of Defendant Discovery Committee s Motion Proposing Disclosure Requirements for Personal Injury Claims U.S.C.A. (G) Asbestos Trusts

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4 CHRISTOPHER MOORE STEVENS [SBN ] LKP GLOBAL LAW, LLP 01 Avenue of the Stars, Suite 0 Los Angeles, California 00 Telephone: () -0 Fax: () - CStevens@lkpgl.com SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CENTRAL CIVIL WEST Coordinated Proceeding Special Title (Rule.0) LAOSD ASBESTOS CASES CASE NO. JCCP Assigned for All Purposes to the Honorable Emilie H. Elias in Department DEFENDANT DISCOVERY COMMITTEE S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION PROPOSING DISCLOSURE REQUIREMENTS FOR PERSONAL INJURY CLAIMS TO U.S.C.A. (G) ASBESTOS TRUSTS (NOTICE OF MOTION; DECLARATION OF CHRISTOPHER M. STEVENS, INCLUDNG EXHIBITS; REQUEST FOR JUDICIAL NOTICE; AND [PROPOSED] ORDER FILED CONCURRENTLY HEREWITH) Hearing Date: June, Hearing Time: _1: p.m. Hearing Location: Dept. - i- Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

5 Table Of Contents Memorandum of Points And Authorities... 1 A. Disclosure of prospective trust claims is fundamental to the legally required application of California apportionment law, codified by California Civil Code B. California Courts are subject to the adverse impacts of delayed trust claiming and disclosure, undermining California law and policy Felix v. M Co., Los Angeles Superior Court Case No. BC, filed on Oct.,..... Skinner v. Basco Drywall and Painting, Alameda County Superior Court Case No. RG1, dismissed Feb.,..... Williams v. AutoZone West, Inc., San Francisco County Superior Court Case No., filed Jan.,..... Smith v. Aurora Pump Co., Alameda County Superior Court Case No. RG0, filed Dec., ).... C. The Practice Of Delaying Trust Claims Until State Civil Cases Have Concluded Has Evolved For The Sole Improper Purpose Of Preventing State Courts And Juries From Properly Allocating Liability To All Responsible Parties, In Order To Maximize Unwarranted Recoveries The Order Estimating Aggregate Liability For Garlock Sets Forth Vivid Findings Of Fact Demonstrating The Improper And Significant Consequences Of Delayed Trust Claiming in California..... The Bankruptcy Court Found A Startling Pattern Of Misrepresentation Regarding Exposure Detailed In Trust Claims Filed Subsequent To State Litigation..... The United States Bankruptcy Court Found That The Prejudicial Practice Of Suppressing Exposure Evidence By Dint Of Delayed Trust Claim Filing Is A National Obstruction Of Justice And Prevalent In California Courts.... D. In Addition To Being Warranted Under Existing California Law, Disclosure Of Prospective Trust Claims Is Already Required In Other Jurisdictions Also Seeking To Apply And Maintain Existing State Law And Policy, Further Demonstrating The Reasonableness Of The Relief Sought Here Texas Courts Require Disclosure Of Prospective Trust Claims ii- Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

6 . West Virginia Courts Require Disclosure Of Prospective Trust Claims..... New York Courts Require Plaintiffs To Disclosure Of Prospective Trust Claims..... Massachusetts Courts Require Disclosure Of Prospective Trust Claims..... Ohio Courts Require Disclosure Of Prospective Trust Claims.... E. Furthering Delayed-Claiming Practices, (G) Trusts Have Been Loaded With Anti-Transparency Provisions In An Additional Effort To Prevent State Courts From Evaluating Complete Evidence Of Exposure... F. Asbestos Trust Funds Formed Under U.S.C.A. (G) Have Increased Dramatically And Impact The Administration Of Justice In California.... G. Disclosure Of Prospective Claims Preserves Trust Assets For Deserving Claimants.... H. The Disclosure Requested Is Reasonable And Warranted Under Law.... I. Disclosure Of Prospective Trust Claims Is Fundamental To Liability Allocation And To Causation Disclosure Of Prospective Trust Claims Is Critical To The Proper Application Of California Apportionment Law..... Prospective Trust Claims Are Critical To Causation.... Conclusion iii- Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

7 California Cases Table Of Authorities Arena v. Owens-Corning Fiberglass Corp., Cal. App. th ()... Espinoza v. Machonga, Cal. App th ()...,, Poire v. C.L. Peck/Jones Bros. Constr. Corp., Cal. App. th ()... Rutherford v. Owens-Illinois, Inc., Cal.th ()... Volkswagen of America, Inc. v. Superior Court (0), Cal. App. th...,,,, Wilson v. John Crane, Inc., 1 Cal. App. th (00)... Wilson v. Ritto, Cal.App.th 1 (0)..., Additional Cases In Re Garlock Sealing Technologies, LLC., No. -0 (Bankr. E.D. N.C., filed Jan., )...,,,,, California Statutes Cal. Evid. Code California Civil Code ,,,, Additional Statutes U.S.C.A. (G)... 1,,,, Mass. Gen. Laws Ann. ch. 1B, N.Y. C.P.L.R Ohio Revised Code Ohio Revised Code Ohio Revised Code Annotated Okla Stat. Title (0)... Okla. Stat. Title, 1... Tex. Civ. Prac. & Rem. Code Ann Wisc Statute 0.0()... - iv- Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

8 Additional Authorities Felix v. M Co.(L.A. Super. Ct. Case No. BC)..., In re Asbestos Litigation, (Tex. Harris County Case No. 0-0, filed Apr., 0)... In re Asbestos Personal Injury Litigation, (W. Va. Cir. Ct. Kanawha County Case No. 0-C In re Massachusetts State Court Asbestos Litigation, (Mass. Super. Ct. Middlesex County, filed June, )... In re New York City Asbestos Litigation, Misc. d (A), WL (N.Y. Sup. Ct. N.Y County Nov., )... In re New York City Asbestos Litigation, N.Y.S.d (N.Y. App. Div. 0)... In re New York City Asbestos Litigation, at XV(E)()(1) (N.Y. Sup. Ct. N.Y County Case No. 0000/, filed May,... In Re Specialty Products Holding Corp., No. -0 (Bankr. D. Del., filed May, ). Skinner v. Basco Drywall and Painting, Alameda County Superior Court Case No. RG1..., Smith v. Aurora Pump Co., Alameda County Superior Court Case No. RG0..., Williams v. AutoZone West, Inc., San Francisco County Superior Court Case No.... Treatises Kaiser Aluminum & Chemical Corp., Third Amended Asbestos Distribution Procedure. (0)..., Leonard E. Eilbacher, Comparative Fault and the Nonparty Tortfeasor, Ind. L. Rev. 0 ()... Lloyd Dixon & Geoffrey McGovern, Asbestos Bankruptcy Trusts and Tort Compensation (Rand Corp. )..., U.S. Gov t Accountability Office, GAO--, Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts () at...,,, W. Page Keeton, et al., Prosser And Keeton On The Law Of Torts - (th ed. )... - v- Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

9 MEMORANDUM OF POINTS AND AUTHORITIES Defendants seek an order that requires disclosure of all facts supporting prospective claims to asbestos personal injury trusts established pursuant to U.S.C.A. (G), on the grounds that the relief requested is fundamental to the application of longstanding California law and policy of apportionment of liability. Defendants submit this motion as a component of the case management order proposals under review by this Court as it seeks to develop efficiencies in these coordinated proceedings. As this Court is aware, Los Angeles Superior Court is attracting a significant amount of asbestos filings, many filed by law firms with no historical connection to this state, as cases and firms continue to migrate to jurisdictions perceived as favorable, that are not yet prepared to handle the onslaught, or have not yet endured enough hard experience to implement modest proposals to prevent prejudice. Los Angeles Superior Court is not immune to prejudicial tactics, and the Court has the means available to it to make the modest disclosures sought here available as a matter of a basic discovery obligation. A. Disclosure of prospective trust claims is fundamental to the legally required application of California apportionment law, codified by California Civil Code 0 -. This Court is requested to recognize and apply essential legal rights and remedies by ensuring that basic evidence is disclosed in asbestos cases. Complete and reliable allocation of liability to all responsible parties, based upon complete and reliable evidence, is required by the Fair Responsibility Act of, as codified in the California Civil Code 1.. California courts have consistently upheld the practice and policy of this state in controlling case law. The proposals presented herein are grounded deeply in existing California law and policy, specifically California Civil Code 0 -, which set forth the apportionment of liability law and policy for this state in multi-party civil tort cases Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

10 The primary issues presented to this Court are: Disclosure of all trust claims and supporting factual information ensures that several liability for non-economic damages is properly allocated as required by California law. Disclosure of all trust claims and supporting factual information ensures that joint and several liability for economic damages is properly allocated and setoffs appropriate pursuant to California law. Disclosure of all trust claims and supporting factual information ensures a complete record of asbestos exposure and an accurate basis for causation. Disclosure of all trust claims and supporting factual information allows California juries to properly allocate liability to all responsible parties. Disclosure of all trust claims and supporting factual information ensures that judges and juries are told all the facts, not selected facts. Disclosure of prospective claims allows the parties to accurately evaluate liability early in the process, facilitates resolution, and creates efficiencies. Disclosure of all trust claims and supporting factual information preserves trust assets for deserving claimants. In furtherance of the modest objective of developing a complete historical record of the plaintiff s exposure to asbestos in the form of admissible evidence, defendants request that this Court enter an order that requires the following disclosures from asbestos personal injury plaintiffs. Specifically, At the close of fact discovery, and pursuant to the rights and remedies set forth in California Code of Civil Procedure sections applicable to discovery obligations, plaintiff shall do the following: - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

11 1. Provide a written statement under oath that sets forth all factual information relating to all asbestos exposures that the plaintiff attributes to each operating (G) asbestos trust and to each entity that has commenced bankruptcy proceedings and/or a trust formation process;. produce copies of all claim forms and supporting factual information, and all requests for deferral, delay, suspension or tolling of claim evaluation that have been submitted to (G) asbestos trusts;. produce copies of all declarations, affidavits or other verified statements of plaintiff that memorialize asbestos exposure including any such statements that have not been submitted to (G) asbestos trusts;. provide a written statement under oath certifying that plaintiff has filed all (G) trust claims for which plaintiff has any factual basis. B. California Courts are subject to the adverse impacts of delayed trust claiming and disclosure, undermining California law and policy. California Courts and litigants experience abuse regularly in the context of the nondisclosure of filed claims, an established legal obligation in this state. See Volkswagen of America, Inc. v. Superior Court (0), Cal. App. th 1,. The ongoing improper practices impede the administration of justice and demonstrate that the disclosure of filed and prospective claims is essential to fairness and to application of California law and policy. Examples include: 1. Felix v. Defendants., Los Angeles Superior Court Case No. BC, filed on Oct.,. On November,, plaintiff s scheduled deposition was commenced. As of this date, no trust claims had been acknowledged or produced. - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

12 On November,, one of the defendants properly requested disclosure of filed trust claims. (Def. sreq. for Produc. Of Docs. to Pl., Set One, No. at, Felix v. Defendants(L.A. Super. Ct. Case No. BC); Stevens Decl. Ex 1). On December,, plaintiff s scheduled deposition concluded. On December 1,, plaintiff filed a trust claim with the ASARCO Personal Injury Settlement Trust, claiming exposure to asbestos as a roofer, pipefitter, and laborer, during the 0 s and 0 s, attributing his increased risk of developing mesothelioma to these exposures. (ASARCO Asbestos Pers. Inj. Settlement Tr. Cl. at ; Stevens Decl. Ex. ). On January,, plaintiff filed a trust claim with the HK Porter Asbestos Trust, claiming exposure to raw asbestos fiber and to additional asbestos-containing products: felt, cloth, rope, tape, and yarn, over the course of years, attributing his increased risk of developing mesothelioma to these exposures. Identified occupations include roofer, plumber, pipefitter, steamfitter, HVAC technician, and laborer. (HK Porter Asbestos Tr. Cl. at ; Stevens Decl. Ex. ). In addition, plaintiff filed a trust claim with the Manville Personal Injury Settlement Trust, claiming exposure as a construction laborer () and as a pipefitter between and, attributing his increased risk of developing mesothelioma to these exposures. (Manville Trust Claim at ; Stevens Decl. Ex. ). The date of this trust claim is not known. On January,, plaintiff concealed the trust claims plaintiff had already filed. (Pl. s Amended Case Rep. at, Felix v. Defendants., (L.A. Super. Ct. Case No. BC); Stevens Decl. Ex. ). On February,, plaintiff filed a second amended case report, revealing for the first time trust claims alleging asbestos exposure had previously been filed with the ASARCO Personal Injury Settlement Trust, with the HK Porter Asbestos Trust, and with the Manville Personal Injury Settlement Trust. (Pl. s Second Amended Case Rep. at, Felix v. Defendants, (L.A. Super. Ct. Case No. BC); Stevens Decl. Ex. ). - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

13 On February,, one of the defendants filed an ex parte motion to reconvene the deposition on the grounds that filed trust claims demonstrating additional exposures to raw asbestos fiber and asbestos-containing products had been improperly concealed. On March,, plaintiff s deposition reconvened to develop asbestos exposure facts supporting filed claims demonstrating exposure to asbestos fibers that had been concealed during written discovery and the plaintiff s oral testimony. At the reconvened deposition, plaintiff disavowed knowledge of trust claims filed on his behalf, despite the fact that the claimed exposures to asbestos captured a wide variety of products and activities claimed to have occurred over the course of two decades in a variety of settings. As demonstrated by this chronology of asbestos exposure fact disclosure, plaintiff systematically concealed as long as possible the disclosure of asbestos exposure facts during the course of the Felix case, in an effort to avoid the implications on causation, apportionment, and impeachment.. Skinner v. Defendants, Alameda County Superior Court Case No. RG1, dismissed Feb.,. In an Alameda County case, Judge Lee confronted concealment of filed trust claims, and was required to issue an order that required compliance with the law and policy of this state as set forth in Volkswagen, because plaintiffs continue to assert improper objections. Noting that the exposure admissions in the filed claim forms constitute credible evidence of asbestos exposure, Judge Lee rejected the arguments that the claims constituted settlement documents entitled to confidentiality, rejected the argument that the claim documents constituted work product, rejected the argument that the trust confidentiality clauses afforded protection from disclosure, and reiterated that the request for disclosure was reasonably calculated to lead the discovery of admissible evidence on the issue of the plaintiff s medical condition and claimed exposures. (Order Mot to Compel Granted at 1, Skinner v. Defendants, (Alameda County Super. Ct. Case No. RG1, filed Aug., ); Stevens Decl. Ex. ). The Skinner case illustrates that the rationale for disclosure of prospective claims applies here, illustrates that despite the published law and policy of this state plaintiffs continue to engage in a pattern of - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

14 conduct constituting concealment and delay and illustrates the need for a standard disclosure requirement relating to the exposure facts relevant to all trust claims, whether filed, prepared, or anticipated. As Judge Lee noted, the trust claims set forth facts directly relevant to matters Plaintiff has placed at issue in this action. Id. at.. Williams v.defendants, San Francisco County Superior Court Case No., filed Jan.,. In a San Francisco County case, Judge Jackson confronted a concealment of trust claims in the circumstance where the plaintiff not only failed to produce filed claims as obligated under standard discovery, but was instructed not to answer questions on filed trust claims at his deposition, even though he admitted that such claims existed. Defendants brought a motion to compel compliance with standard discovery. Judge Jackson entered an order on December, providing that the trust claim documents be produced no later than December,, and stated that the court may vacate the expedited trial date if condition is not met. (Case Management Minute Order at 1, Williams v. Defendants, (S.F. County Super. Ct. Case No., filed Dec., ); Stevens Decl. Ex.. Despite the standard discovery obligation and the order dated December,, plaintiff failed to produce the documents as required by Judge Jackson s order, and only did so the evening before the follow-up status conference, producing 00 pages of responsive documents. Judge Jackson then ordered the plaintiff to be produced at a reconvened deposition, and reiterated that the plaintiff s conduct may merit that the expedited trial date be vacated. Id. at 1. The concealment of the trust claims deprived the defense of its Prop 1 defenses, and Judge Jackson clearly agreed. The Williams case is another example of how plaintiffs continue to avoid Volkswagen, and demonstrates that a uniform approach to reveal all facts supporting all trust claims is necessary.. Smith v. Defendants, Alameda County Superior Court Case No. RG0, filed Dec., ). The Smith case offers evidence that plaintiffs are in control of the exposure facts of their case before trial. The Smith case also demonstrates that plaintiff s argument that they are not in a position to identify all exposures during state court litigation is misleading, and also - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

15 demonstrates that plaintiff counsel, as is reasonably expected of capable lawyers, prepare their cases properly and identify all exposures, regardless of whether the exposure is to a product attributed to a viable California state court defendant or to a bankrupt entity operating a trust outside the tort system, in order to properly represent their clients and pursue all possible sources of compensation. This process commences immediately, and in an effort to collect all available evidence while the plaintiff is able to provide it. The Smith case also demonstrates that the reason plaintiffs delay trust claims is not because they are not in command of the facts, but because they are working to avoid proper causation, avoid full apportionment, and avoid impeachment of their client s occupational histories. Specifically, in Smith, after much obstruction and delay, defendants managed to obtain copies of affidavits signed by the plaintiff that set forth the factual grounds for the trust claims that were being prepared for him during state court litigation but also being withheld from disclosure. Specifically, in Smith, the plaintiff signed numerous affidavits, in which deponent was duly sworn and the signature notarized. Some affidavits included general statements, such as stating that at all of the job sites where Mr. Smith worked, he worked with/or around.... firebrick, pipe covering, gaskets, valves, packing, pumps, cement, and boilers that were left around for me to clean up. Other statements identified specific products, such as Narco asbestos-containing cement, National Gypsum Co. asbestos-containing Gold Bond Siding, United States Gypsum Co. asbestos-containing Durabond Joint Compound, and others. (Stevens Decl. Ex. ). C. The Practice Of Delaying Trust Claims Until State Civil Cases Have Concluded Has Evolved For The Sole Improper Purpose Of Preventing State Courts And Juries From Properly Allocating Liability To All Responsible Parties, In Order To Maximize Unwarranted Recoveries. As demonstrated by the California examples above, the practice of delaying trust claims to avoid disclosure is not conjecture. It is not theoretical. It is not an unfounded suspicion by those prone to buy-in to conspiracy theory. It is an established business model designed to prevent full disclosure to state courts and ramp up jury verdicts and settlements. It is a business - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

16 model implemented in trust governing documents - (See E, infra) - and proven by historical fact, as recently set forth as findings of fact by the United States Bankruptcy Court for the Western District of North Carolina, which specifically identified California as jurisdiction subject to the abuse. 1. The Order Estimating Aggregate Liability For Garlock Sets Forth Vivid Findings Of Fact Demonstrating The Improper And Significant Consequences Of Delayed Trust Claiming in California. On January,, the United States Bankruptcy Court for the Western District of North Carolina issued its estimation order arising out of the Garlock bankruptcy proceedings. The purposes of the proceeding was to establish a reasonable and reliable estimate of Garlock s liability for present and future mesothelioma clams. In Re Garlock Sealing Technologies, LLC., No. -0 (Bankr. E.D. N.C., filed Jan., ), at 1, - (Stevens Decl. Ex. ). In these proceedings, claimant counsel sought between 1.0 and 1. billion dollars for the proposed trust. Id. at. Garlock proposed and the bankruptcy court agreed with an estimation of million dollars. Id. at. The Court arrived at its estimation based on its findings of fact and conclusions of law that the historical valuation of Garlock s liabilities had been unfairly inflated and infected with impropriety, due in large part to the non-disclosure and manipulation of trust claims in state court litigation, including in California. Id. at,. The Bankruptcy Court found that the impropriety of delayed trust claiming and manipulation imposed the adverse impact of inflating settlement numbers for Garlock when it was a state court defendant. Id. at. The findings of fact regarding trust claiming practices are compelling, and based upon the Court s analysis of the results of discovery it ordered of trust claims in cases in which Garlock was a state court defendant. Identifying the same grounds as the defense bar does here in seeking modest discovery practices in this Court, the Bankruptcy Court arrived at its estimation taking into consideration causation, limited exposure and the contribution of exposures to other products. Id at. The overall findings of fact were distilled after the Court conducted days of trial, examined hundreds of exhibits, and took testimony from witnesses. Id. at. - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

17 The evidence obtained caused the Bankruptcy Court to set forth a finding of fact that the historical settlement values presented by claimant counsel to support its proposed estimation for future claims were not reliable because they reflected a deliberate effort to inflate Garlock s share of responsibility by hiding exposure to other product lines during the state court proceedings. It was a regular practice by many plaintiffs firms to delay filing Trust claims for their clients so that remaining tort system defendants would not have that information. Id. at 0. By delaying trust claims, plaintiffs in state courts prevented the state courts from allocating an appropriate percentage of fault to the product lines manufactured by the bankrupt entities. This is the same structural flaw in the allocation of liability under California law and precisely why Los Angeles Superior Court defendants seek modest discovery protocols from this Court requiring Los Angeles Superior Court plaintiffs to identify all trust claims.. The Bankruptcy Court Found A Startling Pattern Of Misrepresentation Regarding Exposure Detailed In Trust Claims Filed Subsequent To State Litigation. The Bankruptcy Court confirmed the facts that defendants present here in seeking modest discovery protocols. Specifically, the Bankruptcy Court found that alternative exposures had disappeared as a result of a concerted effort by asbestos plaintiffs and their lawyers to withhold evidence of exposure to other asbestos products and to delay filing claims against bankrupt defendant s asbestos trusts until after obtaining recoveries from Garlock (and other viable defendants). Id at 0,. The Court allowed Garlock to conduct trust discovery in cases, and unearthed this result: In settled cases, the court permitted Garlock to have full discovery. Garlock demonstrated that exposure evidence was withheld in each and every one of them. These were cases that Garlock had settled for large sums. The discovery in this proceeding showed what had been withheld in the tort cases on average plaintiffs disclosed only about exposures to bankrupt companies products, but after settling with Garlock made claims against about such companies Trusts. Id. at 1. [emphasis in original]. - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts

18 In of the cases subject to transparency, the state court plaintiffs filed in excess of trust claims. Id. at. The cases captured major firms representing state court plaintiffs, and was so widespread that the Court found that the misrepresentation and delayed claiming practices had a significant impact on Garlock s settlement practices and results. Id. at. The Bankruptcy Court estimation order includes a table summarizing the results of misrepresentation of trust claims in the cases it surveyed: Case Disclosed Not Disclosed The Bankruptcy Court also allowed limited discovery on 1 cases in which Garlock had paid in excess of $0,000 while a state court defendant. Even with a more limited view of the record, the Bankruptcy Court found that almost half of those cases involved misrepresentation of exposure evidence. Id. at. - - Motion Proposing Disclosure Requirements For Personal Injury Claims To U.S.C.A. (G) Asbestos Trusts