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Bill Larson is a native Delawarean with deep ties throughout the state and a well-rounded litigator and trial attorney with extensive experience in national asbestos litigation and Delaware corporate and commercial litigation.

Justice Traynor writing for a unanimous, en banc court, ruled that former Town of Newport (“Newport”) Police Chief Michael Capriglione could take office as a Newport Town Commissioner in Capriglione v. State of Delaware, Ex. Rel. Kathleen Jennings, Attorney General, No. 138, 2021 (Del. Oct. 1, 2021).  The Court overruled a Superior Court decision that prevented him from taking office.  The Superior Court ruled Town Commissioner Capriglione was ineligible for the office because his prior conviction for misdemeanor Official Misconduct was an infamous crime under Article II, Sec. 21 of the Delaware Constitution.  The Supreme Court held, however, that “under Section 21, only felonies can be disqualifying ‘infamous’ crimes.

Background

As previously discussed here on April 5, 2021, Newport elected Michael Capriglione to serve as a Commissioner.  Newport has a Council-Manager form of government with five Commissioners forming the town council, including the Mayor.  On May 19, 2018, while serving as Police Chief and on his way to teach a defensive driving course, Mr. Capriglione backed his police car into a parked car in the police department’s parking lot.  A surveillance camera recorded the collision, and Mr. Capriglione later ordered the deletion of the surveillance video capturing the collision.  As a result, a grand jury indicted him, and he eventually pleaded guilty to Careless or Inattentive Driving and Official Misconduct (resulting from the deletion of the surveillance video), both misdemeanor convictions.

The Constitution

The Delaware Constitution provides:

No person who shall be convicted of embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.

The Delaware Supreme Court’s Interpretation

In interpreting this provision, the Supreme Court analyzed the text, historic intent, and precedent.  The Court homed in on two portions of the text.  First, the Court noted that the provision did not include reference to “or misdemeanor,” as the impeachment provision does elsewhere in the Constitution.  Second, the Court noted the delineated crimes were all felonies or punishable by more than one year when the provision was drafted in 1987.  The Court also looked to the convention debates and found that the discussion focused on felonies.  The Court found “the constitutional text and the historical evidence of its understanding strongly suggest that Section 21’s ‘infamous crimes’ bar did not encompass offenses that were not felonies or punishable by more than one year in prison.” However, the Court did not find this dispositive and went on to analyze the existing case law interpreting the provision.

The Court discussed and analyzed numerous decisions from both the Supreme Court and the Superior Court that applied Section 21.  The Court concluded “before this case, Delaware’s Section 21 jurisprudence uniformly indicated that only felonies can be infamous crimes.  And although we have never explicitly announced this rule as a holding, we do so today.”  It is important to note, however, that not all felonies are
Continue Reading Delaware Supreme Court Finds Only Felonies can Disqualify a Candidate from Office: Newport Town Commissioner Takes Office

Considering a rarely invoked provision, the Delaware Superior Court interpreted a Delaware Constitutional provision prohibiting individuals convicted of certain crimes from holding elected office. President Judge Jan R. Jurden granted the State of Delaware’s motion to bar former Town of Newport (“Newport”) Police Chief Michael Capriglione from taking office as a Newport Town Commissioner despite his election to the position earlier this year in State of Delaware, Ex. Rel. Kathleen Jennings, Attorney General v. Michael Capriglione, and Town of Newport, C.A. No. N21C-04-091 JRJ (Del. Super. May 4, 2021). [1] She ruled he was ineligible for the office because his prior conviction for misdemeanor Official Misconduct was an infamous crime under Article II, Sec. 21 of the Delaware Constitution.

On April 5, 2021, Newport elected Michael Capriglione to serve as a Commissioner.  Newport has a Council-Manager form of government with five Commissioners forming the town council, including the Mayor.  On May 19, 2018, while serving as Police Chief and on his way to teach a defensive driving course, Mr. Capriglione backed his police car into a parked car in the police department’s parking lot.  A surveillance camera recorded the collision, and Mr. Capriglione later ordered the deletion of the surveillance video capturing the collision.  As a result, a grand jury indicted him, and he eventually pleaded guilty to Careless or Inattentive Driving and Official Misconduct (resulting from the deletion of the surveillance video), both misdemeanor convictions.


Continue Reading Delaware Judge Bars Town of Newport Commissioner from Taking Office

de-courtJudge Vivian L. Medinilla of the Delaware Superior Court recently denied defendant Monsanto Company’s motion to dismiss on the basis of forum non conveniens (“FNC”) in Barrera v. Monsanto Company.  This ruling, along with a similar ruling issued by Judge Andrea L. Rocanelli one day prior in Gilchrist v. GlaxoSmithKline, LLC, reaffirms and provides new strength to Delaware’s long-standing precedent of offering great deference to a plaintiff’s choice of forum and requiring a defendant to establish “overwhelming hardship” in order to dismiss a case on FNC grounds.

In Barrera, the Court considered the claims of three Plaintiffs alleging their cancers were caused by Monsanto’s glyphosate pesticide known as Roundup.  The case’s only connection to Delaware was Monsanto’s status as a Delaware corporation (although Monsanto’s principle place of business is in Missouri).  None of the Plaintiffs lived in Delaware or alleged any exposure to Roundup in Delaware.  Rather, Plaintiffs alleged exposure to Roundup in Michigan, New York, Oregon, Texas, Virginia, and Washington.  Monsanto therefore asserted that Plaintiffs’ claims would be more properly adjudicated in the respective jurisdictions of their alleged exposures and moved to dismiss the Delaware action on FNC grounds.

In analyzing Monsanto’s motion, the Barrera Court considered the following six factors, known as the “Cryo-Maid” factors, which Delaware Courts have long relied upon in examining FNC motions:

  1. The relative ease of access to proof;
  2. The availability of compulsory process for witnesses;
  3. The possibility of viewing the premises;
  4. Whether or not Delaware law will be applied;
  5. The pendency or nonpendency of similar actions in another jurisdiction; and
  6. All other practical problems that would make the trial of the case easy, expeditious, and inexpensive. Barrera, at 12-13.

In considering all of the factors as a whole, the Court concluded an overwhelming hardship did not exist.  Although the relevant proof, witnesses, and premises (factors 1-3) mostly lie outside of Delaware, the Court found  obtaining such evidence was not a hardship on Monsanto given the technology available in today’s global age.  The Court also noted that it routinely applies other states’ laws (factor 4) and that no other action was currently pending in another jurisdiction (factor 5).  The Court found that the “other practical problems” sixth factor weighed in Monsanto’s favor, but nevertheless concluded that this single hardship was insufficient to justify dismissal, stating:

It may be true that there are more appropriate or convenient forums to litigate Plaintiffs’ claims.  Yet to prevail on this FNC motion to dismiss, Defendant is nonetheless required to demonstrate with particularity that this is “one of those rare cases where the drastic relief of dismissal is warranted” because Defendant will suffer overwhelming hardship if forced to litigate here.  Defendant has not demonstrated that this is one of those rare cases.  Barrera, at 22.

The Barrera ruling takes on added significance given that Delaware’s FNC jurisprudence had come under some question of late after a pair of decisions,  Martinez v. E.I. DuPont de Nemours & Co., Inc. in the Delaware Supreme Court and Hupan
Continue Reading Court Rules Monsanto Roundup Cases to Stay in Delaware

Overview:

In an opinion written by Justice Henry DuPont Ridgely, a unanimous panel of the Delaware Supreme Court recently threw out a $2.8 million verdict in the case of Michael Galliher v. R.T. Vanderbilt.  Defense Litigation Insider previously covered the verdict and Trial Court’s post trial opinion.  Here, R.T. Vanderbilt (“Vanderbilt”) appealed the verdict claiming the Trial Court failed to include a necessary jury instruction and certain testimony from plaintiff’s witnesses prejudiced the trial.  Plaintiff cross appealed and claimed he should receive post-verdict interest on the award, but the Supreme Court did not reach that issue.  Instead, the Court ordered a new trial based on the fact that Dr. Barry Castleman provided inadmissible testimony and the Trial Court did not provide a jury instruction on the duty of care owed by Mr. Galliher’s employer.

Dr. Castleman’s Testimony:

During cross examination, Dr. Castleman made several statements that were non-responsive to questions of defense counsel, including some information that had been specifically excluded by the Trial Court.  Dr. Castleman testified that: (1) Johns-Manville employees had called Vanderbilt “liars;” (2) Vanderbilt spent millions of dollars on studies to undermine government regulatory action with respect to its talc; and (3) it was “buying senators and lobbying the government.”  The Court determined Dr. Castleman’s unsolicited testimony during cross examination was inadmissible and its prejudicial effect required a new trial.

Jury Instructions:

The Court also overturned the verdict because the Trial Court did not include an instruction to the jury on the duty of care owed by Mr. Galliher’s employer.  Vanderbilt sought apportionment of fault to the employer and requested a duty of care instruction.  While the Trial Court indicated it would include such an instruction in the final set of jury instructions, it omitted the instruction from the set given to the jury.  The Court found that was an error and such an instruction must be added for the re-trial, which has since been scheduled for March 9, 2015.

 

Trial Tip Take Aways:

  1. All parties should carefully review the final jury instructions and be prepared to address any omissions or errors with the Court prior to or, if necessary, immediately after the instructions are given to the jury, so any errors can be corrected immediately.
  2. All parties should be sure to tell witnesses of evidentiary rulings that impact their testimony and instruct them to limit their testimony accordingly.
  3. Video testimony played by plaintiff at trial included a line of testimony that the Trial Court had ruled was inadmissible.  Although the Court did not thoroughly analyze this issue in this ruling, it created an appealable issue and all parties should be sure to review final cuts of videos before they are played to the jury to avoid potential appellate issues.
  4. Defense counsel should be armed with this opinion in future trials where Dr. Castleman will testify and be prepared to immediately address his testimony with the Court if his answers start to stray from the questions asked.  This opinion may encourage Trial Courts to


Continue Reading Delaware Supreme Court Tosses $2.8 Million Verdict in Galliher Asbestos Trial

Court Ruling

Background: Garlock Sealing Technologies, LLC (“Garlock” or “Debtors”) filed for Chapter 11 bankruptcy protection in June 2010.  Garlock had been an active asbestos defendant for its asbestos-containing precut gaskets, sheet gasket material, and packing materials.  In January, after extensive discovery and a trial held under seal, the Bankruptcy Court issued an opinion (pdf download) in which it estimated Garlock’s liability for present and future mesothelioma claims.  The Court adopted the Debtors’ estimate of $125 million despite the $1-$1.3 billion estimate of the representatives of current and future claimants (“Claimants”).

Estimation Analysis: In the past, bankruptcy courts have taken a variety of approaches to estimating liability for present and future claims, which has led to billions of dollars being set aside for claimants in asbestos bankruptcy trusts.  Here, Debtors requested that the Court follow a “legal liability” approach, in which the merits of claims are considered and an econometric analysis is conducted to determine the likelihood of recovery.  Meanwhile, Claimants requested that the Court follow a “settlement approach” based on extrapolating data from Garlock’s past settlements in the tort system.

Before making a determination, Judge George R. Hodges allowed Garlock to conduct additional discovery in 15 cases that it settled or took to trial.  Plaintiffs in these cases were represented by 5 major asbestos plaintiff firms.  In every case, Garlock found that evidence of alternative exposure was withheld.  The Court found on average pre-settlement disclosure of exposure to 2 bankrupt entities’ products, but after settlement those same plaintiffs made claims to an average of 19 bankruptcy trusts.  The Court found several occasions when lawyers misrepresented a plaintiff’s exposure history to judges and juries only to later file claims against trusts for products to which they had previously denied exposure.  Garlock has filed civil lawsuits against several plaintiff firms based on allegations of fraud.  For more details on the allegations and related litigation see the Court’s opinion and accounts from NPR, Forbes, and BusinessWeek.

While the Court recognized a comfort in relying on settlement history to estimate liability, it found in this case a “divorce” from that process was necessary and it adopted the Debtors’ approach and estimate.  The Court determined that the Claimants’ approach did not adequately account for cases in which exposure evidence was withheld and it did not take into consideration the cost of litigation as a driving factor in settlements.  The Court concluded that Garlock’s products were made of low potency chrysotile asbestos and generally Claimants had also been exposed to more potent amphibole asbestos from other manufacturers’ products.  Based on this alternative exposure and the fact that some claimants had never been exposed to asbestos from a Garlock product, the Court concluded Garlock should be responsible only for a small percentage of each claimant’s recovery and only if exposure actually occurred.

The Court adopted the analysis of Dr. Charles E. Bates of Bates White.  It found that $25 million was a reliable estimate of Garlock’s liability to its approximately 4000 current mesothelioma
Continue Reading North Carolina Bankruptcy Court Limits Garlock’s Asbestos Liabilities and Ford Wants the Court Records Unsealed