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In re Asbestos Litigation

Supreme Court of Montana

January 7, 2019

IN RE ASBESTOS LITIGATION, Consolidated Cases

         Applicable to: Barnes, et al. v. State of Montana, et al, Lincoln County Cause No. DV-16-111

          ORDER APPROVING ATTORNEY FEES

          Amy Eddy District Court Judge

         This matter is before the Court on Plaintiffs motion for approval of attorney fees. Hearing was held before this Court on January 7, 2019 on the joint motion for approval of settlement. On the basis of the motion for Court approval of attorney fees, and hearing on the joint motion for approval of settlement, good cause appearing, and the Court having fully considered the same, now enters the following;

         FINDINGS OF FACT

         1. Beginning in the late 1960s and increasingly into the 1990s, Zonolite Mining Company/W.R. Grace (collectively "Grace") employees, former employees, and family members made claims against Grace for asbestos-related diseases. Many claims settled, various cases were tried to verdict, and certain cases involved appeals to the Montana Supreme Court and the U.S. Ninth Circuit Court of Appeals. The Plaintiff alleges that the State of Montana is liable in damages for the asbestos-related diseases suffered. Claimants filed claims against the State seeking to establish the legal liability of the State of Montana and to recover monetary damages resulting from that liability.

         2. The Plaintiff extensively litigated their claim, including the exchange of comprehensive written discovery, consultation for the development of expert reports, and the taking Plaintiffs depositions, to which tasks the Plaintiffs counsel have dedicated substantial time in this case, and thousands of hours in other interrelated cases against the State of Montana.

         3. Negotiations led a formal mediation conference. Following the mediation conference, Plaintiff and the State entered into a settlement agreement. Following execution of the agreement, the parties, through their counsel prepared and executed the requisite releases, negotiated Medicaid and Medicare issues, and presented the motion to approve the settlement to this court.

         4. Under the approved joint motion for approval of settlement, the Plaintiffs case and claim against the State of Montana are settled by payment of $250, 000.

         5. The Court's Order Approving Settlement and Dismissal With Prejudice approved the settlement resolves and dismisses Plaintiffs case and claim against the State of Montana but expressly reserves his claims against all other responsible parties. Copies of the release from Plaintiff for his claim against the State of Montana have been provided to the Court.

         6. Counsels' representation of the Plaintiff is subject to a standard 33% contingent fee contract. Representation of the Libby asbestos cases, including the claims of the Plaintiff, has involved more than a decade of litigation on multiple fronts, before various state, federal, and administrative tribunals, and appeals perfected in both state and federal courts of appeal. As recognized by the parties, the cases and claims against the State of Montana involve numerous disputed factual questions and unresolved legal issues of extreme complexity.

         7. The settlement reached with the State of Montana has been fully approved by the Plaintiff, inclusive of the contingent attorney fee that results by operation of the settlement.

         8. There has been no objection to the entry of an order approving the Plaintiffs Motion for Court Approval of Attorney Fees.

         CONCLUSIONS OF LAW

         1. Where the subject of a contingent attorney fee contract does not offend public policy, it will be enforced according to his terms. Frank L. Pirtz Const, v. Hardin Town Pump, Inc.,214 Mont. 131, 139, 692 P.2d 460, 464-65 (1984), citing Gross v. Holzworth,151 Mont. 179, 440 P.2d 765 ...


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