Wilkinson & Welding Rods, Williams & Westinghouse

“When you have a conspiracy, everyone is tied to the conspiracy. Those who come early. Those who come late.” -Richard Scruggs to District Judge Kathleen O’Malley

 

In the early 2000s the Mississippi mass tort landscape was in upheaval.  The legislature was busy at work on tort reform, intent on slowing the rise of “jackpot justice.” Tobacco litigation was over, already having been memorialized in the 1999 film The Insider.  Mike Moore was handing over the reins of the AG’s office to Jim Hood. Scruggs was downsizing his operation and was selling his office building to Dogan & Wilkinson (D&W).

Asbestos defense work, Wilkinson’s bread-and-butter, was providing a steady stream of billable hours and trial lawyers were gearing up for Asbestosis the Sequel: Silicosis. By way of asbestos defense work, some of Wilkinson’s clients became silicosis defense clients, but that steady stream of billable hours was nothing in comparison to the bounties the pirates over at the plaintiffs firms were taking home. The winds were changing and D&W picked up the scent wafting across the Pascagoula River to their Delmas Street offices.  That wind carried the fumes of welding rods and to the ambitious lawyers at D&W, that smelled liked money.

In September of 2004 Dickie Scruggs filed Ruth v. A.O. Smith which alleged that manganese exposure from welding rods caused neurological damage to Mr. Ruth.  The groundwork for such a lawsuit had been in the making for several months. D&W wanted a piece of the action and joined in, but strictly as a back office.  After getting their hands slapped by the insurers paying for asbestos defense, they were certain not to make the same mistake twice.

A mass tort such as the asbestos or welding rod cases has a lot of moving parts. One group of law firms might concentrate on marketing and screenings to find potential plaintiffs, another might work on obtaining industry research to prove conspiracies, and others might work on compiling evidence about when and where certain products were used. D&W would play a role in a couple of these.  A simple explanation of the arrangement comes from Suzanne Sataline writing in Legal Affairs:

The evidence-gathering is bankrolled by the 40 firms working with Scruggs; each chips in $50,000 to $100,000 to join the litigation, and Scruggs and his co-lead counsel seek additional contributions to cover costs as the need arises.

In the marketing efforts Dogan & Wilkinson sent partners and associates to attend health screenings in search of plaintiffs. They would also print and mail hundreds of questionnaires to potential plaintiffs, though the return address on the envelopes was that of another firm.

D&W  used its position as defense counsel in asbestos and silicosis cases to obtain information on welding rod defendants, which it would pass along to plaintiffs’ attorneys.  In 2003, silicosis lawsuits were gearing up with thousands of plaintiffs. The discovery in these cases would provide hundreds of thousands of pages of records regarding the purchasing activities of industry in Mississippi and work history of employees.

D&W sent attorneys and staff to review these documents on behalf of their asbestos and silica defense clients. Simultaneously, they were also searching for any documents related to dozens of companies being sued in the welding rod cases – none of which D&W represented. Apparently D&W was on the hunt for evidence to be used by the welding rod plaintiffs group in identifying where defendants had products in use. The bills for the time spent digging through these documents were sent to D&W’s asbestos and silica clients.

It appears that no Dogan & Wilkinson client was ever sued in the welding rod litigation.  That would change in 2008 when Roy Williams joined the firm.  Williams brought many clients with him, including Westinghouse Electric.  Westinghouse was a target in nearly all of the welding rod suits filed.

D&W would now be representing the same company they helped to sue. Westinghouse might have been informed of this and signed a waiver, though it seems unlikely.

It is unknown the extent to which Dogan & Wilkinson has informed clients of potential conflicts. Industrial corporations and their insurers tend to avoid conflicted firms.  Indeed, Dogan & Wilkinson’s clients objected when D&W joined up with plaintiffs attorneys in the vaccine lawsuits. It would be difficult to imagine such clients continuing to engage the firm if such information was fully disclosed.

The regular reader will recall that this publication has previously linked Judge Breland Hilburn and attorney Jim Reeves to having worked together to sue welding rod companies.  Now you can add Dogan & Wilkinson to that mix.  While many might think that the conflicts would only impact Dogan & Wilkinson’s clients, Slabbed commenter “Nunn Yabidnez” opines there is a spillover effect for the whole legal system:

PRO-TIP – Dogan and Wilkinson have yet again ***pay attention: brought the bar and the profession into disrepute and their conduct, along with that of certain judges, has caused the public to lose confidence in the neutrality of the judicial process. The conduct in question is in direct conflict with both the Code of Judicial Conduct as well as canons of professional ethics. Just a thought, but if enough complaints to the Mississippi Bar, as well as the Commission on Judicial Performance (both almost useless, but…), and the press, were filed, who knows what might happen?

 

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