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In re Asbestos Litigation

Supreme Court of Montana

January 7, 2019

IN RE ASBESTOS LITIGATION, Consolidated Cases

         Applicable to: all KS claims in Bargo, et al. v. State of Montana, Montana First Judicial District Court, Lewis and Clark County, Civil Cause No. BDV 2018-1612 consolidated before this Court under Eustice et. al v. State of Montana et. al

          ORDER APPROVING KS ATTORNEY FEES

          Amy Eddy, Judge

         This matter is before the Court on KS Plaintiffs' (Libby Mine Claimants) 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 KS Libby Mine Claimants included in this settlement allege 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 KS Libby Mine Claimants have extensively litigated their claims, as have those similarly situated before them. Over the years of litigation between the parties, there has been the exchange of comprehensive written discovery, complex and detailed expert reports, taking of numerous depositions, and briefing of complex motions, to which tasks the KS Libby Claimants' counsel have dedicated thousands of hours over a number of years.

         3. Negotiations led to an extensive formal mediation conference. At the conclusion of the mediation conference, KS Libby Claimants and the State entered into a tentative 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 KS Libby Mine Claimants' cases and claims against the State of Montana are settled by payment of $1, 250, 000, with a contingent $400, 000 dependent on the result of pending litigation between the State and its insurance company.

         5. The Court's Order Approving Settlement and Dismissal with Prejudice approved the settlement. It also resolves and dismisses the KS Libby Mine Claimants' cases and claims against the State of Montana but expressly reserves their claims against all other responsible parties. Copies of the releases from KS Plaintiffs for claims against the State of Montana have been provided to the Court.

         6. KS Counsels' representation of the KS Libby Mine Claimants is subject to a standard 33 1/3% contingent fee contract. Representation of the Libby asbestos cases, including the claims of the KS Libby Mine Claimants, 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 each KS Libby Mine Claimant, 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 KS Plaintiffs' Motion for Court Approval of Attorney Fees.

         CONCLUSIONS OF LAW

         9. Where the subject of a contingent attorney fee contract does not offend public policy, it will be enforced according to his terms. FrankL. 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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