In re Asbestos Litigation Cases

04/09/2021
Case Number: AC 17-0694
IN THE ASBESTOS CLAIMS COURT OF THE STATE OF MONTANA
IN RE ASBESTOS LITIGATION, Cause No. AC 17-0694
Consolidated Cases ORDER APPROVING
MCGARVEY LAW
ATTORNEY FEES
This matter is before the Court on MHSL Plaintiffs'(Libby Mine Claimants) motion
forapproval of attorney fees. Hearing was held before this Court on March 30, 2021 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
Libby Mine Claimantsincluded 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.
ORDER APPROVING ATTORNEY FEES 1
2. The 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
expertreports, taking of numerous depositions, and briefing of complex motions, to
which tasks the Libby Claimants' counsel have dedicated thousands of hours over a
number of years.
3. Negotiations led to a formal mediation conference. At the conclusion ofthe mediation
conference, 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 Libby Mine
Claimants' cases and claims against the State of Montana are settled by payment of
$4,900,000, with a contingent $1,470,000 dependent on the result ofpending litigation
between theState and its insurance company.
5. The Court's Order Approving Settlement and Dismissal with Prejudice approved the
settlement resolves and dismisses the 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 Plaintiffs for claims against the State of
Montana have been provided to the Court.
6. Counsels' representation of the Libby Mine Claimants is subject to a standard 33%
contingent fee contract, with the exception of 7 individuals with co-counsel
agreements. Representation of the Libby asbestos cases, including the claimsof the
Libby Mine Claimants, has involved more than a decade of litigation on multiple
ORDER APPROVING ATTORNEY FEES 2
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
Libby Mine Claimant, inclusive ofthe 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
forCourt 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 (1968); Wight v. Hughes Livestock Co., (Mont.
1983), 664P.2d 303, 40 St. Rep. 696.
2. MCA § 2-9-314(2) provides in relevant part that when reviewing attorney fees, the Court
shouldconsider the time the attorney was required to spend on the case, the complexity of
the case, and any other relevant matter the Court may consider appropriate. In Stimac v.
State, 248 Mont. 412,417, 812 P.2d 1246, 1249(1991), the Montana Supreme Court held
that the following factors should be considered by a District Court when assessing
the reasonableness of an attorney fee: 1. The novelty and difficulty of the legal and
factual issues involved; 2. The time and labor required to perform the legal service
properly; 3. The character and importance of the litigation; 4. The result secured by the
attorney; 5. The experience, skill, and reputation of the attorney; 6. The fees customarily
ORDER APPROVING ATTORNEY FEES 3
charged for similar legal services at the time and place where the services were rendered;
7. The ability of the client to pay for the legal services rendered; and 8. The risk of no
recovery. Given the complexity of the case, the duration of this litigation, the numerous
disputed factual questions and unresolved legal issues, the contracts of employment
between the Libby Mine Claimants and their counsel are fair and reasonable.
ORDER
IT IS HEREBY ORDERED that the Plaintiffs' Motion for Court Approval of
Attorney Fees is GRANTED.
DATED AND ELECTRONICALLY SIGNED BELOW. ,..p1/4',i.a8
ORDER APPROVING ATTORNEY FEES 4