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3M seeks judicial notice of results in East Ky. dust-mask cases; Hammond objects
PIKEVILLE, Ky. — A legal dispute between 3M Company and three attorneys over hundreds of coal-worker dust-mask lawsuits has moved into another procedural fight, with 3M asking a federal judge to take judicial notice of developments in related cases and Pikeville attorney Glenn Hammond arguing the request improperly seeks to strengthen 3M’s allegations after the fact.
The latest filings concern 3M’s federal lawsuit against Hammond, Michael B. Martin and John “Johnny” Givens. In its amended complaint, 3M alleges the three attorneys participated in an unlawful enterprise that filed and prosecuted more than 850 claims against the company in Kentucky courts, including claims 3M alleges were fraudulent or knowingly lacking factual support. 3M accuses the defendants of violating the federal Racketeer Influenced and Corrupt Organizations Act, along with fraud and civil conspiracy.
The amended complaint alleges the attorneys worked together in filing complaints involving the dust-mask claims and says the enterprise included recruiting clients, preparing claims and pursuing litigation against 3M. Those allegations remain disputed.
In a motion filed Aug. 27, 3M asked the court to take judicial notice of developments in two related federal proceedings, Adams v. 3M and Mounts v. 3M. The company says those cases provide evidence supporting its allegation that claims filed by Hammond, Martin and Givens were objectively baseless and that the attorneys knew it.
3M’s motion focuses on 446 claims filed by the defendants in those two proceedings. According to 3M, 199 of the claims — about 45 percent — have been dismissed, including 171 dismissed after plaintiffs failed to comply with court orders. One claim has been dismissed on summary judgment and 27 were voluntarily dismissed. Another 105 claims were the subject of pending summary judgment motions as of Aug. 27.
3M says it had conducted 183 depositions of the 247 remaining plaintiffs as of Aug. 21 and had filed 105 summary judgment motions, many based on statute-of-limitations issues, lack of evidence of 3M product use and other alleged deficiencies. The company highlighted deposition testimony it says showed some plaintiffs could not identify a 3M product, some said they never wore a 3M mask, and others had been diagnosed with black lung decades before the lawsuits were filed.
3M characterizes 332 of the 446 claims as “frivolous” and says the developments support its allegations that the claims were baseless from the beginning. The company argues the federal court can take judicial notice of its own records in related proceedings.
Hammond, in a response filed Sept. 17, asks the court to reject the motion.
Hammond’s attorneys argue 3M is attempting to use judicial notice as a way to supplement or effectively amend its amended complaint with developments that occurred after the allegations were filed. They contend a court deciding a motion to dismiss generally evaluates whether the complaint itself contains enough factual allegations to support the claims.
They also argue that while a court may take notice that a document exists, it generally cannot accept disputed statements within court filings as true simply because those statements were filed. Hammond’s response says 3M is asking the court to accept disputed conclusions that the underlying claims were “objectively baseless,” “patently unsupported” and part of a fraudulent scheme.
Hammond’s filing also argues that the developments cited by 3M largely involve claims dismissed on procedural grounds, including statute-of-limitations issues, and that such weaknesses in underlying lawsuits do not, by themselves, establish liability under RICO.
The court has not yet ruled on 3M’s motion for judicial notice.
Copies of 3M’s motion and Hammond’s response follow:
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