Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - February 2014

February 11, 2014

Edited by Timothy D. Rau, Esquire

Delaware Judge Grants 95 Defense Motions to Dismiss in Napoli Bern Asbestos Cases

by Ana M. McCann, Esq.

On February 6, 2014, Delaware Superior Court Judge Paul R. Wallace granted 95 Motions to Dismiss based on failure to timely serve the original pleadings. The motions were filed by 19 separate defendants in 73 separate cases. Each of the 73 cases was filed by the firm of Napoli Bern Ripka Shkolnik.

In seeking dismissal, the moving defendants argued that Napoli Bern failed to serve the defendants within the 60 days required by the Delaware Asbestos Standing Order in place at the time of the filing of the cases at issue. In many cases, the service was not perfected within the 120 days required by Delaware Superior Court Civil Rule 4(j).

Plaintiffs' counsel in attendance argued that the problem stemmed from their Delaware office being understaffed with only one attorney and two paralegals, one of which went out on maternity leave and then bereavement leave. Several months later, two additional attorneys were hired, and they began the task of relieving the backlog.

Defense liaison arguing the motions pointed out that the Napoli Bern Delaware office continued to file hundreds of cases during the months in which they were not perfecting service. Judge Wallace spoke about Delaware favoring cases proceeding on their merits, however, he stated during arguments that there clearly were no diligent efforts asserted by Napoli Bern to perfect service on any of the defendants in question.

Judge Wallace quoted from the Napoli Bern website, which states that they are a national law firm with headquarters in New York that oversees several fully- staffed offices throughout the country with dozens of attorneys and hundreds of staff ready to protect the rights of clients. Judge Wallace opined, "I cannot find good cause, I simply cannot" and granted all the motions without prejudice.

The motions to dismiss rulings by Judge Wallace come following a year in which Delaware saw a surge in asbestos filings, which mostly originated from the Napoli Bern firm and consist predominantly of lung cancer cases.

In 2013, there were 814 new asbestos cases filed in Delaware, and 623 of them were filed by Napoli Bern. Of the 623 cases filed by Napoli, 615 were lung cancer cases, five involved mesothelioma claims and the remaining three involved other asbestos-related diseases.

It is unclear at this point whether Napoli Bern can or will attempt to re-file the cases against the dismissed defendants in Delaware or an alternative jurisdiction. In some cases, the statute of limitations may bar re-filing.

An additional round of motions to dismiss has been filed by defendants for lack of service and are scheduled to be heard by the court on March 6.

For more information on the Motion ruling, contact Ana McCann of our Wilmington office.

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