Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv—01560-JFC Document 43-9 Filed 09/19/2005 Page1 0f4

APR-13-2anS tufsta {U nr ni- [ A - Lia! Q H ·"` _fB`?g
IN THE UNITED STATES DISTRICT COURT i
FOR THE DISTRICT OF DELAWARE
OWENS CORNING, et al. z CIVIL ACTION
v. NO. 04-00905 I
CREDIT SUISSE. FIRST BOSTON, etal. (Bankr. No. 00-03837)

A Fullam, Sr. J. April [*3 , 2005
On March Bl, 2005, I entered an Order estimating the liability of Owens Coming
for pending and future unliquidated claims relating to asbestos On April Il, 2005, Credit
Suisse First Boston, as Agent for the Bank lenders, tiled a motion for reconsideration of that
Order, pointing out various perceived discrepancies between the views expressed in the body of
my opinion, and the results reached. Movant contends that the estimate of $7 billion should be
amended to reflect an estimate of $4.8 billion.
The rnovant asserts that. having ruled that punitive damages should not be
included in the estimate, the Court nevertheless relied upon the estimates of Dr. Vasquez and Dr.
Ptnbinovitz, which included punitive dainagss; and that my estimate did not make any
adjustments to account for alleged ovetpayrments to unimpaired claimants.
As I attempted to make clear in my March 31 opinion, Ido not regard any of the
experts’ opinions as having mathematical accuracy, and think it a mistake to make detailed
mathematical adjustments; and I do not adopt the Banks' seeming assumption that to
acknowledge that past litigation results were skewed to soma extent by litigation irregularities
(forum-selection, massecreenings, runaway juries, etc.) is equivalent to a guarantee that. fiom

QPR. T ’ · · ‘-’ =
new on, no such factors will be present. This Court dncs not lmvc the authority to wahangc state
law, All cases which can survive summary disposition under mu: law havn sum: potential
value:. The perfect world assumed by the Bs.nks’ ugum » · t — a world in which only persons
suffering serious symptoms make claims, symptoms which could possibly be. caused by i
something other than asbestos arc ruled out, reductions in pulnwnary function will be
disrcghrdcd unluss thuy exceed 20%, and only multiple X-my readings will suffncc — cannot
realistically be predicted with assurance.
I rcccgnizc that D:. Rnbinovitz did not reduce her estimate: by excluding punitive
damages. I did not mam to suggest that the only reason for not accepting har estimate at face
value was hcr failure to account for the aging of thc ¤laimar1t—pcpulati0n. I did not make
mathematical adjustments tn any of the estimates. In finding Dr. Rnbincviws and Dr. Vs,·squcz’s
estimates more persuasive than those of Dr. Peterson or Dr. Dunbar, I did not mean thatl
accepted every detail of the testimony of any of the experts. I also found persuasive the
testimony of the attorneys involved in thc National Settlement Program, which was to the effect
that, at least during the NSP, punitive daxnagcs were not considered, and had virtually no impact
upon settlement values cr other outcomes.
In short, I merely attempted to arrive at an estimate which qmmpriuwly reflected
the diffumcea between what has already ocmrred, and what is likely to happen in the mmm. I V
predicted that there will be some reduction in thc value of claims because of eliminating punitive
damages; that there will be some reduction in the pace at which future claims are filed, because
ofpcmeptiuns that full payment is unlikely; that progress has been made in eliminating
questionable X·ray readings, and this trend will continue; and that some uf the pending and
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QPR-13-21335 1¤=z1 PAM
innuo claims will pmvo to lack merit, but not nearly to the extent assumcd by thc Bm1ks’ i
argument. l
Giving duo consideration in all of the czvidoncc prewntad at the heanings, and
giving due consideration to all of the argmnents of counsel, I adhere: to my estimntz: of $7 billion.
i
The motion for mocnsidnration will bc denied.
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