CONSTANCE PODEDWORNY, Executor for the ESTATE of JOSEPH PODEDWORNY, by her agent, THE FEDERAL-MOGUL ASBESTOS PERSONAL INJURY TRUST Plaintiff,
AMERICAN INSULATED WIRE CORP., T&N LIMITED, f/k/a T&N plc, TURNER & NEWALL PLC, and TURNER & NEWALL LIMITED, TAF INTERNATIONAL LIMITED, f/k/a TURNERS ASBESTOS FIBRES LIMITED and RAW ASBESTOS DISTRIBUTORS LIMITED, and JOHN DOE Defendants. MAUREEN GALLAGHER, Executor for the ESTATE of DENNIS GALLAGHER, by her agent, THE FEDERAL-MOGUL ASBESTOS PERSONAL INJURY TRUST Plaintiff,
AMERICAN INSULATED WIRE CORP., T&N LIMITED, f/k/a T&N plc, TURNER & NEWALL PLC, and TURNER & NEWALL LIMITED, TAF INTERNATIONAL LIMITED, f/k/a TURNERS ASBESTOS FIBRES LIMITED and RAW ASBESTOS DISTRIBUTORS LIMITED, and JOHN DOE Defendants.
Providence County Superior Court
For Plaintiff: Vincent L. Greene, Esq.
For Defendant: Lawrence G. Cetrulo, Esq.; Stephen T. Armato, Esq.
GIBNEY, P.J. JUSTICE/MAGISTRATE
Before this Court is the Plaintiffs' Objection and Motion to Quash Defendants' Notice of Deposition. Pursuant to Super. R. Civ. P. 30(b)(6), Defendants filed a notice of deposition, seeking to depose the representative of the Federal-Mogul Asbestos Personal Injury Trust.
Facts & Travel
The factual background and travel of the case, in pertinent part, follows. Mrs. Gallagher and Mrs. Podedworny allege that their husbands' mesotheliomas were caused by exposure to the Defendants' product, Limpet, when they worked for Narragansett Electric. Both Mr. Podedworny and Mr. Gallagher are now deceased. On the 12th and 14th of September 2011, the Federal-Mogul Asbestos Personal Injury Trust (the Trust) filed the instant complaints against T&N entities on behalf of Mr. Podedworny's and Mr. Gallagher's estates.
For the purposes of this decision, this Court briefly discusses the bankruptcy reorganization plan entered into by T&N and the corresponding Federal-Mogul Asbestos Personal Injury Trust Distribution Procedures. See Federal-Mogul Form of Asbestos Personal Injury Trust Distribution Procedures (TDP). On October 1, 2001, T&N and 156 domestic and foreign affiliates (the Debtors), including its corporate parent Federal-Mogul Global, Inc., filed voluntary chapter 11 petitions. In re Fed.-Mogul Global, Inc., 282 B.R. 301, 303 (Bankr. D. Del. 2002). Pursuant to 11 U.S.C. § 524(g), the Debtors proposed a reorganization plan to resolve all current and future liability claims. In re Fed.-Mogul Global, 402 B.R. 625, 628 (D. Del. 2009). Under the proposal, a "§ 524(g) trust was created 'to which all of [the debtors] personal injury liabilities . . . would be transferred for resolution and payment . . . .'" Id. at 628. Funding for the § 524(g) trust (Trust) included 50.1 percent of the reorganized Federal-Mogul Global stock and the rights of all remaining Federal-Mogul Global insurance coverage for the transferred asbestos liabilities. Id. The proposed plan of reorganization went through several amendments before being confirmed as the Fourth Amended Joint Plan of Reorganization (the Plan) by the U.S. Bankruptcy Court for the District of Delaware. Id.; see Order Confirming Fourth Am. Joint Plan of Reorganization, filed Nov. 8, 2007. The Plan became effective on December 27, 2007. Id.
The Plan provides that on the effective date, December 27, 2007, "the Trust shall . . . assume sole and exclusive responsibility and liability for all Asbestos Personal Injury Claims . . . ." Fourth Am. Joint Plan of Reorganization § 4.4. Regarding the Trust's authority to bring claims on behalf of claimants, the Plan states, in pertinent part:
"[f]rom and after the Effective Date, each holder of a Debtor HPE Asbestos Claim irrevocably appoints the Trust as his agent, in the name of such holder or otherwise, to assert such Debtor HPE Asbestos Claim against the Reorganized Hercules-Protected Entity in any appropriate forum, and such holder shall not be entitled to assert such holder's Debtor HPE Asbestos Claim except through the agency of the Trust." Id. at § 4.5.8 (emphasis added).
In sum, the Plan creates a system in which a claimant—who has alleged injury as a result of exposure to one of the Debtor's products—must bring his or her claim through the Trust in order to recover. Id.
Pursuant to the Plan, Trust Distribution Procedures (TDPs) were promulgated and set forth detailing how the Trust would assess, process, and liquidate claims. See TDP, § 9. Ultimately, the Plan sought to create a system that quickly, efficiently, and fairly assessed and paid claims without proceeding through the tort system. The Trust, and the ensuing TDPs, were designed so as "to enable each claimant to receive a payment from the [Trust] . . . of the liquidated value of his or her asbestos personal injury claim that [was] at a level proportionate to payments to other claimants and that [was] calculated by reference to the level of settlements, verdicts or judgments, which claimants [had] historically received in their respective tort systems." TDP, § 2.1(a).
Accordingly, claimants submit their claims to the Trust, along with relevant medical evidence, and elect to either pursue their claim under the Expedited Review or Individual Review Process. TDP, §5.3(a)(1)(A). Once a claim is submitted, the Trust reviews the claim, and the supporting medical documentation, and makes a determination as to whether the claim meets certain predetermined "Medical/Exposure Criteria." TDP, § 5.3(a)(1)(A). If the evidence meets such criteria, the claim is paid based upon a schedule which has been created to reflect the type and severity of the disease as well as the calculations of average settlement amounts. TDP, §§ 5.3(a)(1)(B)-(C). If the Trust determines that a claim is meritorious, it tenders to the claimant an offer of payment. Accordingly, the Claimant may choose to accept the payment; however, as a condition to making any payment, the Trust requires the claimant ...