MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. ATTORNEYS AT LAW

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1 ATTORNEYS AT LAW DELAWARE OFFICE Suite Delaware Ave. Wilmington, DE (302) Fax: (302) EFiled: Nov :49PM EST Transaction ID Case No. N09C ASB Brian L. Kasprzak Member DE & VA Bars bkasprzak@mooclaw.com VIA LEXIS-NEXIS FILE &SERVE and HAND DELIVERY Superior Court of Delaware New Castle County Courthouse 500 North King Street, Suite Wilmington, DE RE: June Montgomery v. Foster Wheeler C.A. No.: 09C ASB Our File No.: Dear Judge Ableman: We write this letter requesting sanctions against Plaintiff in the form of a dismissal of all claims for the willful violation of Standing Order No. 1 pursuant to Superior Court Civil Rule 37 and Sundor Electric, Inc. v. E.J.T. Construction Co., Inc., 337 A.2d 651 (Del. 1975). On Saturday, November 5, 2011, at 10:53 p.m. EDT, counsel for Foster Wheeler received the following from Scott Barnes, counsel for Plaintiff and counsel for the Plaintiff s Estate and heirs, attached: My client just arrived in town tonight. While speaking with him about the case, I learned that he has received two bankruptcy settlements from another law firm that filed those claims on his behalf. I have been completely unaware of this until this moment, and in fact believed there had been no bankruptcy claims filed as discussed on Thursday. My firm has filed no such claims and was given no information about the filing of these claims. Given the late hour, I don't have any other information. I have reached out to the other firm to get as much information as I can, as quick as I can. My client does not know the names of the two bankrupt entities off hand, but can confirm that he received two separate checks. Obviously, the existence of these bankruptcy claims is directly inconsistent with the unequivocal representations by Mr. Barnes to this Court at last Thursday s Status Conference. Philadelphia Pennsauken New York City Pittsburgh Towson Elmsford Pennsylvania New Jersey New York Pennsylvania Maryland New York

2 Page 2 Moreover, the failure to identify these claims and produce the documents relating to the same is a direct violation of Standing Order No. 1, Section 7 (l) 1, which governs this case: 7. Immediately upon the filing of an asbestos action, plaintiff or plaintiff s counsel is to serve a paper or electronic copy of the complaint with the date of filing clearly noted on the first page thereof upon Defense Coordinating Counsel. Within 30 days after filing the complaint plaintiff shall file responses to the form interrogatories and requests for production approved and mandated by this Order (Exhibit A ) and shall serve Defense Coordinating Counsel with electronic or paper copies thereof along with electronic or paper copies of all documents and materials produced therewith. Plaintiff shall file an electronic notice to all other parties indicating that such materials have been sent to Defense Coordinating Counsel. Until completion of trial, plaintiff shall supplement its responses as additional information or documents are received. Also within 30 days of the filing of an asbestos action, plaintiff shall serve upon the Defense Coordinating Counsel the following (emphasis added): (l) Copies of all claim forms and related materials related to any claims made by plaintiff to any insurance carrier, employer, governmental agency, trust, entity or person related to or in any way involved with asbestos claims, or other agency, entity, or person wherein plaintiff directly or indirectly asserts, suggests, advocates, or requests investigation into potential entitlement to compensation or benefits of any type as a result of exposure to and/or injury related to asbestos. This shall include, but is not limited to, copies of all materials related to applications for Social Security benefits, worker s compensation benefits, military service benefits, disability benefits, and claims made to trusts for bankrupt asbestos litigation defendants. (underlining added) At the deposition of Brian Montgomery on Sunday,, Mr. Montgomery disclosed that he first contacted a Texas law firm by the name of Brent Coon & Associates to seek legal representation for his parents, Arthur and June Montgomery. Mr. Montgomery confirmed that Brent Coon & Associates referred the Montgomery family to Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. Mr. Barnes confirmed that he did not make any attempt to inquire about the existence of bankruptcy trust submission by Brent Coon & Associates before November 5, Brian Montgomery also confirmed during the deposition that in February or March of 2011, he received two settlement checks from Brent Coon & Associates, which he deposited in the bank account for the Estate. 1 Transaction ID

3 Page 3 A submission of a claim for compensation to a bankruptcy trust constitutes an admission of exposure to asbestos to the product or products for which the bankruptcy trust was formed. Plaintiff s admission of these exposures is admissible for purposes of allocating fault under Florida law. Stat ; Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Moreover, to the extent that the Plaintiff s admission of exposure to those products was not identified by Arthur Montgomery during his deposition or by Plaintiff in response to the discovery requests relating to exposure in this case, the documents relating to these trust submissions are relevant on the issue of credibility, for both fact and expert witnesses. Counsel for Foster Wheeler received another today, Sunday,, at 2:43 p.m. EDT from Scott Barnes, counsel for Plaintiff and counsel for the Plaintiff s Estate and heirs, that twenty bankruptcy claims had been submitted, attached. Three of these bankruptcy claims, those to Keene, Celotex and Johns Manville, had been paid based solely on Mr. Montgomery s work history. The remaining seventeen submitted claims, to Halliburton, Harbison Walker, AWI, USG, B&W, OC, FB, Ferado, Flexitallic, Turner & Newell, Plibrico, GI Holdings, Artra, HK Porter, Asarco, Porter Hayden and ABB Lummus, remain pending. Nevertheless, Plaintiff asked for money from these trusts on the representation to these trustees that Mrs. Montgomery s mesothelioma was caused by her exposure to asbestos from products made by the companies that established the trusts. Whether these omissions were done intentionally or by negligence, the result to Foster Wheeler is the same: severe prejudice. There is no longer any time to conduct additional discovery to remedy the violation. Thus, Plaintiffs discovery violation has resulted in substantial prejudice. Under Rule 37 of the Delaware Superior Court Rules of Civil Procedure, a party may seek sanctions against an opposing party who fails to obey an order or permit discovery. The rule provides, in relevant part, that the Court may remedy the violation by issuing such orders as are just, including: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

4 Page 4 (E) [...] In lieu of any of the foregoing orders or in addition thereto, the Court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. On the eve of trial, literally, Plaintiff has disclosed, for the first time, the existence of admitted exposure to asbestos, including, apparently, exposure to products that, to date, have not been the focus of discovery, including asbestos clothing, sewer pipe, gaskets, roofing materials, and automotive parts (although the precise nature of the alleged exposure is not apparent from the list of names provided by counsel, because many of these companies made multiple products.) The complaint in this case was filed on November 25, Within 30 days of filing this asbestos action, December 25, 2009, Plaintiffs were to serve copies of all bankruptcy claim forms and related materials related to any claims made by plaintiff, pursuant to Standing Order No. 1. To date no claim forms or related materials have been produced. Had these claims been timely disclosed by Plaintiff, Foster Wheeler would have taken a number of steps towards developing discovery and defenses in this case, the very least of which would have been to explore these exposures at the deposition of Arthur Montgomery and the depositions of Plaintiff s experts. Foster Wheeler was given no such opportunity, however. Delaware Courts will dismiss an action for discovery violations that are willful or made in conscious disregard of a discovery order. 2 Courts are more disposed to dismiss actions where the Plaintiff, and not only his attorney, is at fault for the discovery violation. 3 The extreme lateness of the disclosure, coupled with the fact that it was made so soon after Plaintiff counsel s false assurances suggests that the violation was reckless (i.e. made in conscious disregard of the discovery order). Moreover, it is apparent that Brian Montgomery, the decedent s personal representative, bears responsibility for the failure to disclose bankruptcy claims. According to his testimony today, he accepted settlement checks from his Texas lawyers for two bankruptcy claims 8 or 9 months before trial. Brian Montgomery claimed that he did not bother to apprise his Florida or Delaware lawyers of the claims. The failure to do so was at least reckless, in light of the Court s scheduling order. And the Plaintiff bears responsibility for the discovery violation as well. The seriousness of the discovery violation cannot be overstated. The only reasonable remedy now that we are at trial is to dismiss all claims as to Foster Wheeler. For the foregoing reasons, Foster Wheeler submits that dismissal would be an appropriate sanction in this case. 2 Sundor Electric, Inc. v. E,J.T. Construction Co., Inc., 337 A.2d 651 (Del. 1975). 3 Rittenhouse Assocs. v. Frederic A. Potts & Co., 382 A.2d 235, 237 (Del. 1977) (citing Nat. Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976).

5 Page 5 BLK/ Enclosures cc: Respectfully Submitted, MARKS, O NEILL, O BRIEN & COURTNEY, P.C. By: _/s/ Brian L. Kasprzak Brian L. Kasprzak (No. 3846) and SEDGWICK, LLP Chris Marks, Esq. Michael Sensor, Esq. (via Lexis-Nexis File & Serve) Counsel for Foster Wheeler Energy Corp.