Free Motion for Extension of Time - District Court of Delaware - Delaware

Case 1:04-cv-01560-JFC

Document 80

Filed 01/05/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IN RE: USG CORPORATION, A Delaware Corporation., et al.,
Debtors.

USG CORPORATION, et al., Movant v. OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS, et al. Respondents.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Chapter 11 Jointly Administered Case No. 01-2094 (JKF)

Civil Action No. 04-1559 (JFC) Civil Action No. 04-1560 (JFC)

MOTION OF BARON & BUDD, P.C., FOSTER & SEAR, LEBLANC & WADDELL, LLP AND SILBER PEARLMAN, LLP TO EXTEND TIME TO COMPLETE DEBTORS' STANDARD QUESTIONNAIRE TO SELECT PERSONAL INJURY ASBESTOS CLAIMANTS TO THE HONORABLE UNITED STATES DISTRICT COURT: Baron & Budd, P.C., Foster & Sear, LeBlanc & Waddell, LLP, and Silber Pearlman, LLP (or the "Movants") respectfully submits this Motion to Extend Time to Complete Debtors' Standard Questionnaire to Select Personal Injury Asbestos Claimants, as follows: Background 1. On June 13, September 20, and October 6, 2005, this court held hearings

regarding discovery issues in this matter, including the Motion for Approval of the

MOTION OF BARON & BUDD, P.C., FOSTER & SEAR, LEBLANC & WADDELL, LLP AND SILBER PEARLMAN, LLP TO EXTEND TIME TO COMPLETE DEBTORS' STANDARD QUESTIONNAIRE TO SELECT PERSONAL INJURY ASBESTOS CLAIMANTS ­ Page 1

Case 1:04-cv-01560-JFC

Document 80

Filed 01/05/2006

Page 2 of 5

Debtors' Sampling Plan and Claimant Questionnaire and the discovery schedule for the estimation of Debtors' asbestos personal injury liabilities. 2. On October 17, 2005, the Court entered its Order Re: Personal Injury

Estimation [Doc. No. 62]. 3. In the Order Re: Personal Injury Estimation, the Court ordered the

Debtors to serve the claimant questionnaire attached to the Order Re: Personal Injury Estimation as Exhibit A, Debtors' Standard Questionnaire to Select Personal Injury Asbestos Claimants (the "Questionnaire"), on a sample of 2000 personal injury claimants. 4. The Movants were served with Questionnaires for in excess of

approximately one and thirty (130) personal injury claimants in the aggregate. Baron & Budd, LeBlanc & Waddell and Silber Pearlman have approximately one hundred (100) Questionnaires for which they have primary responsibility for completion. Foster & Sear has responsibility for approximately thirty (30) Questionnaires. 5. The Order Re: Personal Injury Estimation requires the Questionnaire to

be returned by mail on or before January 9, 2006 to be deemed timely. Grounds for the Motion 6. Upon receipt of the Questionnaires, each of the Movants began reviewing

its files for the information necessary to accurately complete the detailed twenty-seven (27) page Questionnaires. 7. Simultaneously with their work on completing the Questionnaires, each of

the Movants also was reviewing its files and completing the ten (10) page W.R. Grace

MOTION OF BARON & BUDD, P.C., FOSTER & SEAR, LEBLANC & WADDELL, LLP AND SILBER PEARLMAN, LLP TO EXTEND TIME TO COMPLETE DEBTORS' STANDARD QUESTIONNAIRE TO SELECT PERSONAL INJURY ASBESTOS CLAIMANTS ­ Page 2

Case 1:04-cv-01560-JFC

Document 80

Filed 01/05/2006

Page 3 of 5

Asbestos Personal Injury Questionnaire for all of its clients who are holders of Asbestos PI Pre-Petition Litigation Claims for submission by January 12, 2006, pursuant to the Case Management Order for the Estimation of Asbestos Personal Injury Liabilities entered by the court in In re W.R. Grace & Co., et al., Case No. 01-1139 (JKF) in the United States Bankruptcy Court for the District of Delaware.1 8. Completion of each of the Questionnaires in this matter involves

answering over one hundred (100) questions, most of which are multi-part, and compiling and submitting copies of medical reports and records. 9. In fact, the Court has recognized the complexity of the Questionnaires.

See Transcript of Motions Proceedings on Thursday, October 6, 2005, United States District Court, Pittsburgh, Pennsylvania before the Honorable Joy Flowers Conti, District Judge, at p. 15, ll. 23-24 ("It's clear to this Court than an average person is going to have to have counsel assist them in [completing the Questionnaires] . . . ."). 10. Although each of the Movants has worked diligently to complete the

Questionnaires, the diversion of each Movant's attorney and staff resources to the work on completing the voluminous number of W.R. Grace Asbestos Personal Injury Questionnaires for all of its clients who are holders of Asbestos PI Pre-Petition Litigation Claims, coupled with the intervening holiday season and its attendant attorney and staff

The court in W.R. Grace recently extended the time for holders to Asbestos PI Pre-Petition Litigation Claims to complete and served those questionnaires to March 13, 2006. See Order Modifying the Case Management Order for the Estimation of Asbestos Personal Injury Liabilities Regarding the Extension to Time for Claimants to Respond to Questionnaires and to Designate Non-Expert Witnesses dated December 21, 2005 in In re W.R. Grace & Co., et al., Case No. 01-1139 (JKF) in the United States Bankruptcy Court for the District of Delaware.

1

MOTION OF BARON & BUDD, P.C., FOSTER & SEAR, LEBLANC & WADDELL, LLP AND SILBER PEARLMAN, LLP TO EXTEND TIME TO COMPLETE DEBTORS' STANDARD QUESTIONNAIRE TO SELECT PERSONAL INJURY ASBESTOS CLAIMANTS ­ Page 3

Case 1:04-cv-01560-JFC

Document 80

Filed 01/05/2006

Page 4 of 5

vacations, has made completion of the Questionnaires by the January 9, 2006 deadline impossible. 11. Because the Movants want to complete each of the Questionnaires with

which it was served accurately in compliance with the Court's Order Re: Personal Injury Estimation, the Movants seek an extension of time to complete the Questionnaires. 12. Movants reserve their rights regarding objections to the Questionnaires,

including, but not limited to, the jurisdiction of the Court over the Questionnaires. 13. The Motion is not filed for purposes to delaying Personal Injury

Estimation, but so that justice may be done and the Movants may accurately complete the Questionnaires. Relief Requested For the foregoing reasons, the Movants respectfully request the Court to extend the time for them to complete and return the Questionnaires for thirty (30) days or until February 8, 2006 and to grant them such other and further relief to which the Court finds they are justly entitled.

MOTION OF BARON & BUDD, P.C., FOSTER & SEAR, LEBLANC & WADDELL, LLP AND SILBER PEARLMAN, LLP TO EXTEND TIME TO COMPLETE DEBTORS' STANDARD QUESTIONNAIRE TO SELECT PERSONAL INJURY ASBESTOS CLAIMANTS ­ Page 4

Case 1:04-cv-01560-JFC

Document 80

Filed 01/05/2006

Page 5 of 5

Respectfully submitted, /s/Daniel K. Hogan Daniel K. Hogan (DE #2814) THE HOGAN FIRM 1311 Delaware Avenue Wilmington, Delaware 19806 Telephone: 302-656-7540 Facsimile: 302-656-7599 and STUTZMAN, BROMBERG, ESSERMAN & PLIFKA, A Professional Corporation Sander L. Esserman TX State Bar No. 06671500 2323 Bryan Street Suite 2200
Dallas, Texas 75201-2689

Telephone: (214) 969-4900 Telecopier: (214) 969-4999 Counsel for Baron & Budd, P.C., Foster & Sear, LeBlanc & Waddell, LLP and Silber Pearlman, LLP

MOTION OF BARON & BUDD, P.C., FOSTER & SEAR, LEBLANC & WADDELL, LLP AND SILBER PEARLMAN, LLP TO EXTEND TIME TO COMPLETE DEBTORS' STANDARD QUESTIONNAIRE TO SELECT PERSONAL INJURY ASBESTOS CLAIMANTS ­ Page 5