Document LJjB1ab002Ydk0OM80yr02nab

Tuesday, September 12, 2000 Drew Berry law suit IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION OWENS-ILLINOIS, INC., Plaintiff. vs. C.A. No. 2-99CV-117-TJW T&N, LTD. AND FEDERAL-MOGUL, CORPORATION, Defendants. DEFENDANT, T&N, LTD'S THIRD-PARTY COMPLAINT Page: 1 COMES NOW, Defendant, T & N, Ltd. ("T&N"), and files this Third-Party Complaint against Phillip McWeeny, Andrew T. Berry, and McCarter & English, LLP ("Third-Party Defendants") and alleges the following: A. PARTIES 1. Plaintiff is Owens-Illinois, Inc. ("O-I"). 2. Defendant, T&N, is a United Kingdom corporation that has answered in this case. 3. Defendant, Federal-Mogul Corporation ("F-M") is a Delaware corporation. As of the time of this pleading F-M has not answered. 4. Third-party Defendant, Phillip McWeeny, is an individual who is a citizen of the state of Ohio. He may be served with process at One Seagate, Toledo, Ohio 43666. 5. Third-party Defendant, Andrew T. Berry, is an individual who is a citizen of the state of New Jersey. He may be served with process at Four Gateway Center, 100 Mulberry Street, P. O. Box 652, Newark, New Jersey 07101-0652. 6. Third-party Defendant, McCarter & English, LLP, is a limited liability partnership under the laws of the state of New Jersey. It may be served with process at Four Gateway Center, 100 Mulberry Street, P. O. Box 652, Newark, New Jersey 07101-0652. B. INTRODUCTION 7. O-I sued T&N for fraud, aiding and abetting fraud, conspiracy, negligent misrepresentation, punitive damages, violation of the Sherman Anti-Trust Act, violation of the Racketeer Influenced and Corrupt Organizations Act, violation of Florida's Deceptive Trade Practices Act, and violations of the California Business & Professional Code. 8. T&N denies the allegations of O-I. 9. O-I alleges that T&N fraudulently concealed wrongful conduct and documents, and failed to provide full information publicly "up through 1958 and to date." (Original Complaint paragraph 50). In fact, Third-party Defendants are directly responsible for any such wrongful conduct, not T&N. C. JURISDICTION AND VENUE 10. This Court has jurisdiction and venue over the Third-party Defendants under 28 U.S.C., Sections 1331 and 1332. D. CAUSE OF ACTION http://www.egilman.com/3P%20COMPLAINT.htm Tuesday, September 12, 2000 Drew Berry law suit Page: 2 11. Between June 19, 1985, and October 3, 1988, O-I and T&N were members of the Asbestos Claims Facility ("ACF"), a consortium of asbestos defendants organized for the purpose, among others, ofjointly defending against asbestos personal injury claims brought throughout the United States. Phillip McWeeny was Assistant General Counsel of O-I and also a director and executive of the ACF. As a director of the ACF he was in a fiduciary relationship with T&N. Andrew T. Berry and his law firm, McCarter & English, LLP were one of the principal defense counsel hired to defend O-I, T&N, and other members of the ACF. For many years prior to June 1985 Andrew T. Berry and McCarter & English LLP had been national and/or regional asbestos defense counsel to O-I. 12. In the Spring and Summer of 1986, T&N's national counsel traveled regularly to England for the purpose of assembling in one place T&N's historical documents concerning the hazards of asbestos. During the course of that work, T&N's national counsel discovered T&N documents demonstrating that since the 1930s, T&N had been providing specific directions to end-users of finished insulation products concerning how to minimize health risks when handling such products. The specific directions contained in the documents were that end-users should cut finished insulation products only in well-ventilated areas and should wet down such products in order to reduce dust. 13. T&N's national counsel produced the documents containing the aforementioned directions to plaintiffs' counsel in United States litigation beginning no later than the end of 1986. In addition, in order to ensure that T&N's written answers to interrogatories were consistent with the knowledge reflected in the documents, T&N's national counsel sent to ACF attorneys amendments to standard interrogatory answers to reference specifically the fact that T&N gave the above instructions to end-users of finished insulation products since the 1930s. These amended answers were sent to Andrew T. Berry and others in or around the end of 1986. Third-party Defendants flatly refused to serve the new interrogatory answers. 14. Instead, on February 4, 1987, Third-party Defendants convened a meeting in order to convince T&N to alter the interrogatory amendments and delete the language concerning T&N's historical directions on how end-users should handle finished asbestos insulation products. Third- party Defendants informed T&N that O-I and other members of the ACF did not give similar directions to end-users of finished asbestos insulation products, and that public disclosure of T&N's amended interrogatory answers would "knife" O-I and other ACF members "in the back." Based upon false representations made to it by Third-party Defendants, T&N acceded to the demands of the Third-party Defendants, and the language reflecting T&N's specific directions to end-users was deleted. 15. In its complaint, O-I alleges that T&N conspired to fraudulently and negligently misrepresent that end-users of asbestos insulation products were not at risk of contracting asbestos-related diseases at times when it knew otherwise. O-I further alleges that in order to conceal its guilty knowledge, T&N made and served incomplete interrogatory answers in asbestos personal injury litigation. Third- party Defendants are liable to T&N for damages because THEY insisted that T&N remove the very language from its interrogatory answers concerning the dangers of asbestos to end-users, in order to protect O-I and other asbestos manufacturers in http://www.egilman.com/3P%20COMPLAINT.htm Tuesday, September 12, 2000 the ACF. Drew Berry law suit Page: 3 16. Further, Third-party Defendant, Phillip McWeeny, while a board member of the ACF and a fiduciary to T&N, negotiated the reorganization plan of the Johns-Manville Bankruptcy. These negotiations resulted in a plan that discharged O-I's claims against Johns-Manville, and limited T&N's rights to recover contribution or indemnity from Johns-Manville. Phillip McWeeny has since instigated and authorized O-I's lawsuit against T&N for claims that are derivative of O-I's claims against Johns-Manville . O-I did not purchase fiber from or communicate with T&N; O-I's commercial dealings and communications were, therefore, with Johns-Manville, and any false statements, negligent omissions, or other wrongful acts were made or performed by Johns-Manville. O-I's suit seeks derivative liability against T&N and constitutes a clear breach of Phillip McWeeny's fiduciary duties. 17. For these reasons, T&N sues Third-party Defendants for negligence, legal malpractice, breach of fiduciary duty, fraud, aiding & abetting fraud, negligent misrepresentation, conspiracy, violation of the Racketeer Influenced and Corrupt Organizations Act, violation of Florida's Deceptive Trade Practices Act, and violations of the California Business & Professional Code. T&N seeks all actual and punitive damages caused or properly awarded thereby, including attorneys' fees, past and future actual damages, all applicable interest, and all other damages allowed under law. 18. In the alternative, if Third-party Defendants are found to be agents of O-I for purposes of this third-party action, then O-I itself is responsible for the very acts of which it complains in its suit against T&N, and therefore its lawsuit is a fraud upon the Court properly subject to Rule 11 sanctions. E. PRAYER 19. For these reasons, T&N asks for judgment against Third-party Defendants, Phillip McWeeny, Andrew T. Berry, and McCarter & English, LLP for all damages, past and future, all applicable interest, all attorneys' fees, all actual and punitive damages and all relief allowed by law and justice. Respectfully submitted, By: W. MARK LANIER TSB#: 11934600 PATRICK N. HAINES TSB#: 00784191 LANIER, PARKER & SULLIVAN, P.C. 1331 Lamar, Suite 1550 Houston, Texas 77010 Telephone: (713) 659-5200 FAX: (713) 659-2204 OF COUNSEL: Shepard A. Hoffman State Bar No. 24011523 LAW OFFICES OF SHEPARD A. HOFFMAN 3100 Monticello Avenue, Suite 750 Dallas, Texas 75205 Telephone: (214) 443-4319 http://www.egilman.com/3P%20COMPLAINT.htm Tuesday, September 12, 2000 FAX: (214) 443-0358 Kip Glasscock State Bar No. 08011000 KIP GLASSCOCK P.C. 550 Fannin, Suite 1350 Beaumont, Texas 77701 Telephone: (409) 833-8822 FAX: (409) 838-4666 J. Thad Heartfield State Bar No. 09346800 HEARTFIELD & McGINNIS 2195 Dowlen Road Beaumont, Texas 77706 Telephone: (409) 866-3318 FAX: (409) 866-5789 Drew Berry law suit Page: 4 Ken Carroll State Bar No. 03888500 Kelli Hinson State Bar No. 00793956 CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P. 200 Crescent Court, Suite 1500 Dallas, TX 75201 (214) 855?3000 FAX: (214) 855?1333 ATTORNEYS FOR DEFENDANTS, T&N, LTD. CERTIFICATE OF CONFERENCE Counsel for Defendant conferred with Counsel for Plaintiff, Mr. Paul Sadler, regarding the filing of the foregoing Third-Party Complaint and Mr. Sadler states he is unopposed to this Third-Party Complaint against Andrew T. Berry and McCarter & English, LLP, however, he is opposed to a Third-party Complaint against Phillip McWeeny. W. MARK LANIER CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing instrument was served upon the attorneys of record of all parties to the above cause in accordance with the Federal Rules of Civil Procedure, on thisday of June, 2000. W. MARK LANIER http://www.egilman.com/3P%20COMPLAINT.htm