Free Reply Brief - District Court of Delaware - Delaware

Case 1:08-mc-00090-RLB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
IN RE: W. R. Grace & Co. et al.
Libby Claimants

1 :08-mc- 00090- RLB

Appellants Bankruptcy Case No. 01- 1139
Adversary Case No. 01- 771

R. Grace & Co. et al.

Appeal No. 08-

Appellees.

REPLY OF LIBBY CLAIMANTS IN SUPPORT OF MOTION FOR LEAVE TO APPEAL ORDER ENJOINING ACTIONS AGAINST BNSF
The Libby Claimants

, Cohn Whitesell &

and Landis Rath &

, hereby submit this Reply in support of the Motion
Grace & Co. to Libby Claimants '

response to: (i) (Corrected) Opposition of W. R.

Motion for
Grace

Leave to Appeal Order Enjoining
Opposition
) (Dist. Crt. D. l. 7; Adv. Proc. D. l. 533),

, 2008

Objection to Motion of Libby Claimants for Leave to Appeal Order Enjoining Actions Against

BNSF dated May 5 , 2008

Maryland Casualty Objection

) (District Crt. D. l. 3),

Maryland Casualty Company s Joinder in Opposition to Motion of Libby Claimants for Leave to

Appeal Order Enjoining Actions Against BNSF dated May 6 , 2008 (District Crt. D. l. 6), and (iv)

Arrowood Indemnity Company f/k/a Royal

s Joinder in Opposition to

Motion of Libby Claimants for Leave to Appeal Order Enjoining Actions Against BNSF dated
May 7 2008 (Adv. Proc. D. l. 529). In

1 Capitalized terms used but not defmed herein shall have the meaning

Claimants for Leave to Appeal Order Enjoining Actions Against BNSF (District Crt. D. I. 1; Adv. Proc. D. I. 51lJ (the " Motion

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The Order is Appealable as of
The Libby Claimants filed the Motion as an alternative to their notice of appeal , wherein
they assert that the Order is appealable as of right pursuant to 28 U.
C. 9 158(a)(1) or 28 D.

9 1292(a)(1). Grace incorrectly asserts that this Court has previously recognized that " the Libby
Claimants ' appeals of expansions of the injunction is governed not by 28 U.
c. 9 1292(a)(1),

but instead by 28 US. C.

9 158.

Grace Opposition at p. 6. In
as improperly entered

, the Libby

Claimants were challenging the entry of " temporary stays "

This Court did not agree that the " temporary stays
5:6- 7 (" I don t think it's an injunction.

" were injunctions.

See 4/25/06 Hr ' g Tr. at

2 In this case , there is no dispute that the Order is an

injunction since the bankruptcy court denominated it as such.
whether an actual injunction of the bankruptcy court may be appealed as of right.

Claimants submit that such a right exists.

See Motion at pp. 6- 11.
C. 9 1292(a)(1) does not apply to

The cases cited by Grace 3 in its argument that 28 U.

appeals to the district court from bankruptcy court injunctions do not support that proposition. In
those cases ,

the Court of Appeals merely recited the jurisdictional history (as most decisions do)

but did not face the situation of an appeal of a bankruptcy court injunction to the district court.

Courts in the Third Circuit
bankruptcy court injunctions are appealable as of right to the district court.

See In re Prof! Ins.

Mgmt. , 246 B. R. 47 , 59 (D. N. J. 2000),

vacated and remanded on other grounds , 285 F. 3d 268

282 n.16 (3d Cir. 2002) (approval of District Court' s analysis of appellate jurisdiction);

Honig v.
*3- 4 (D. N.J.

Broege (In re
2006);

, 2006 WL 3308585 ,

In re Reliance Acceptance Group, Inc. , 235 B.R. 548 , 553 (D. Del. 1999);

Avella, Jr. v.

2 Case No. 06- , District Crt. D. I. 27. 3 Grace Opposition at pp. 6- , n.

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City of New burgh (In re Bertoli) , 1987 WL 8196 , *4 (D. N. J. 1987). The Third Circuit's recital

of jurisdiction in non-analogous cases does not represent a long line of Third Circuit cases that

the Libby Claimants are asking this Court to reject. The only cases Grace cites that
position are district
established precedent in this Circuit represented by the

Prof!

Midstate Mortgage

Reliance Acceptance , and

Bertoli decisions.
position.

Circuit- level authority outside the Third Circuit favors the Libby Claimants '

The Ninth Circuit Court of Appeals recently held that a bankruptcy court injunction "constitutes
an appealable final decision.

Solidus Networks, Inc. v. Excel

Innovations, Inc. , 502 F. 3d 1086 , 1092 (9th Cir. 2007).
Circuit case as a " new

twist" that is

contrary to Third Circuit authority.

Grace

Opposition at p. 9.
See Motion at pp. 9- 10. Rather than refuting

Excel Innovations applies equally to the present appeal.

Excel Innovations ,

Grace cites cases that it admits

are not bankruptcy cases " and , indeed , do not even involve injunctions. One of the cases

cites suggests that if an injunction had been involved , it would have been appealable.
v. Pennsylvania, 587 F. 2d
1340 ,

See Hoots

1348 (3d Cir. 1978) (stays that are " injunctive in character are

appealable). Thus , the cases cited by Grace , to the extent relevant at all , support the Libby

Claimants ' position.

II.

The Libbv Claimants Have Met the Standard for Grantine: Leave
If this Court concludes that the Order is an interlocutory order requiring leave to appeal

under 28 US. C.

9 158(a)(3), leave should be granted

and all other criteria for granting an

s Opposition

demonstrates as much.

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difference of opinion as to any controlling question of law , then proceeds to disagree with the

Libby Claimants that the
Engineering
non- precedential
line of decisions

Pacor/Federal- Mogul/Combustion

4 asserting instead that controlling law consists of the

Gerard decision which Grace argues (incorrectly, in the Libby Claimants ' view)

must be followed because it is law of the case. 5 If nothing else , Grace s attack on long-standing
Third Circuit authority is a concession that there are grounds for differing opinions on questions
of law.

Grace

s own

Opposition , the subsequent "Corrected" having been filed in the Bankruptcy Court two days after

the initial filing) establish a
jurisdiction in this case just as it did in

Pacor Federal- Mogul , and
Grace

Combustion Engineering.

its " Corrected" Opposition ,

acknowledgement that the
highlight its position that it denies the validity of such claims.

See Grace Opposition at p. 13 , n.4

Grace
indemnification rights against Grace for the causes of action alleged in the (BNSF Litigation).
Grace s challenge to the validity of BNSF' s indemnification claims serves as Grace s admission
that the case is parallel with

Federal- Mogul. As was

Motion:
At most , any were to be

BNSF indemnity agreements-if extant at all ,

and if they

analogous to the indemnification agreements submitted by Chrysler in the
In re Federal- Mogul Global. Inc. , 282 B.R. 301 cert denied sub nom Daimler Chrysler Corp. v. Official Pacor. Inc. v. Higgins 743 F. 2d 984 (3d Cir. 1984). Comm. of Asbestos Claimants 537 U.S. 1148 (2003); Carol Gerard v. W. R. Grace & Co. (In re W. R. Grace & Co. , 115 Fed. Appx. 565 (3d Cir. 2004). 6 The initial Opposition was filed on May 6 , 2008. (Dist. Crt. D. I. 4; Adv. Proc. D. I. 524.
(D. Del.),

In re Combustion Engineering, Inc. , 391 F.3d 190 (3d Cir. mandamus denied , 300 F. 3d 368 (3d Cir. 2002),

2004);

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Federal- Mogul case ,

as to which the question whether this

the

determined to bind the (debtors) is open and one not easily resolved. The Court is unwilling again to rest subject matter jurisdiction on this tenuous support. . at 311 In re Asbestos Litig. , 271 B. R. 118 , 124 (S. D. W. Va. To the extent that the validity of an indemnity agreement is in doubt , the directness between the third- party action and a judicial ruling that will attenuated. Federal- Mogul , 282 B.R. at 311- 12.

Motion at p. 21. In sum , Grace offers no argument to differentiate the instant matter from
Federal- Mogul , and

Pacor

Combustion Engineering

Given that the
s own

established Third Circuit precedent and
Injunction Denial Order ,
there is

Bankruptcy Court' s holding in the Order.

In its Opposition , Grace also suggests that " the Libby Claimants do not contend that the
Court applied the incorrect legal
Litigation.

Grace Opposition at pp. 15- 16. That
, the Bankruptcy Court' s reliance on collateral

position is wrong. As

estoppel and " record taint" as justification for
whatsoever. The Bankruptcy Court' s reliance on disputed and unproven indemnity claims as the

basis for " related- " jurisdiction can be explained ,
standard other than the one enunciated by the Third Circuit in (most particularly)

if at all

, only as the
Federal- Mogul.
(supporting interlocutory

If Grace is attempting to draw a distinction between " legal standards "

review) and factual findings (which do not), then it is perfectly clear that the Bankruptcy Court'
injunction presents a violation of

evidentiary record whatsoever on which to base any finding

issuance of an injunction without any

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incorrect legal standard. At every turn in this matter , the Libby Claimants have questioned the
Bankruptcy Court' s legal authority to enjoin the BNSF Litigation.

The issue in this appeal is the Bankruptcy Court' s failure to apply the Third Circuit's
heavily litigated , thoughtfully considered and now well established precedent concerning subject

matter jurisdiction to enjoin third-party litigation.
combination with the other

This error ,

especially

require any evidentiary support for the injunction sought by Grace and failure to

suffering of the Libby Claimants , establish exceptional
Court to grant leave for the Libby Claimants to appeal from the Order.

III.

Gerard is Not Law

of the

Case
Maryland Casualty

By their oppositions , Grace and Maryland
argue that

Gerard

is law of the

See

Grace Opposition at p.

Objection at p. 1. 7 However , the doctrine of law of the
request to enjoin the BNSF Litigation
same case as

not the

Gerard and (b) law of the

precedent that

Gerard (or , more Gerard

s and

interpretation of

Grace s Request to Enjoin the BNSF Litigation is Not the Same Case as Gerard
Under the law of the

, once an
Hayman Cash Register Co. v.

relitigated in the same case except in
Sarokin
669 F.2d 162 ,

165 (3d Cir. 1982). " (T)he doctrine posits that when a court

7 Maryland Casualty filed a one-sentence objection in which it asserts that the Motion is " inconsistent with the law of the case as established by the Bankruptcy Court and the U. S. Court of Appeals for the Third Circuit in this
Adversary Proceeding.

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upon a rule of law, that decision should continue to govern the same issues in subsequent stages

in the same case.
(quoting

Christianson v. Colt Indus. Operating Corp. , 486 U. S. 800 , 815- 16

(1988)

Arizona v.
130 F. 3d 568

, 460 U. S.

605 , 618 (1983)

see also Williams v.

Runyon ,

, 573 (3d Cir. 1997). " This rule of practice
protecting against
, J. Lucas & T. Currier Moore
s Federal

efficiency of the

Christianson , 486 U. S. at 815 (quoting IB
Practice 'll 0.404(1), p.

118

Its purpose is to " maintain

reconsideration of matters once decided during the course of a single continuing lawsuit."

Casey
848 ,

v. Planned Parenthood of Southeastern Pennsylvania,
omitted).

14 F. 3d

856 (3d Cir.

Grace s request for an injunction against the BNSF Litigation does not concern the same

issues , does not involve the same parties , and , therefore , is not the same case as

Gerard . The

happenstance (or stratagem) that
adversary proceeding to include BNSF and the Libby Claimants rather than file a new adversary
proceeding does not cause Grace s request for a new injunction against different litigation among
different parties

8 to be the same "

case "

as the

Gerard
1240 ,

litigation for

purposes of " law of the case.

See U. S.

v. Guy , 903 F. 2d

1242 (9th Cir. 1990) (law of the

case does not apply where court is faced with a similar dispute involving different
this reason alone , law ofthe case does not govern Grace s request to enjoin the BNSF Litigation.

See Debtors ' Motion for Leave to Further Amend Complaint dated March 16 2007 (Adv. Proc. D. I. 395), whereby

Grace seeks to amend the original
Claimants in the BNSF Litigation were not plaintiffs in the BNSF was not a party in

Gerard matter versus Maryland Casualty, and of course

Gerard

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Law of the Case Does Not Applv Where Supervenine: Precedent Exists
Law of the case does not apply where a supervening decision has changed an

rule oflaw. Magnesium Elektron 123 F. 3d at 116 - 117;
re AmeriServe Food Distribution, Inc. ), 315 B. R.

AFD Fund v. Transmed Foods, Inc. (In
Grace
s and

24
squarely
contrary to

Maryland Casualty

s interpretation of

Gerard

places it

In re
, and one

Engineering, Inc. 391 F. 3d 190 (3d Cir. 2004)---a later
expressly decided on a

Gerard , which was

precedential decision. In

Gerard , the Third Circuit panel vacated a District Court order that the

Bankruptcy Court

to jurisdiction for the

Preliminary Injunction to include the Libby Claimants ' independent actions against Maryland
Casualty. The
Combustion Engineering
in permitting an injunction

against litigation among third
jurisdiction over that litigation.

Combustion Engineering made clear in the Third Circuit what

had previously been made clear in the Fifth and Seventh

establish jurisdiction over the matter to be
Combustion Engineering , 391 F. 3d at 224- 25;
751 (5th Cir. 1995);

Feld v. Zale Corp. (In re Zale Corp. , 62 F. 3d 746
159 , 162 (7th Cir. 1994)(" only

Zerand- Bernal Group, Inc. v. Cox , 23 F. 3d

after (the non- debtor lawsuits) are shoehorned into the bankruptcy court on authority of Section
1334(b) can such suits be stayed by authority of Section 105"

9 The three primary exceptions to the law of the case doctrine , which permit reconsideration of an issue previously

decided in a case , include situations in which: (i) new evidence is available; (ii) a supervening new law has been See Public announced; or (iii) the earlier decision was clearly Interest Research Group of New Jersev. Inc. v. Magnesium Elektron. Inc. 123 F. 3d Ill , 116 - 117 (3d Cir. 1997).

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It should also be noted that

Gerard is distinguishable from the instant case by reason of its

procedural posture. The

Gerard

panel imposed the burden of proof on the Libby Claimants

because they sought to clarify or modify a
independent claims against Maryland Casualty (the Libby
entry of the injunction). This procedural peculiarity
Gerard panel stated:

Gerard decision. Specifically, the

But , here , the issue before the Bankruptcy Court was not whether it exercise jurisdiction over suits pending elsewhere , nor even whether it should enjoin such suits , but , rather , whether it should modify an injunction already entered in the Bankruptcy Court in favor of Grace and
. at 567.

It is important to note at the outset that the appeal before us is not an appeal from the entry of the Injunction , but , rather , from the
refusal to interpret , alter , or reconsider the Injunction

Plaintiffs urge.

, as moving parties , who had the burden to demonstrate to the court that the Injunction was
, it
somehow improper as to them. This they failed to do.

. at 568.

. We concluding that the Bankruptcy Court did not err in
previous grant of an injunction broad enough in scope to include a stay of The
Lawsuit.

. at 569.

The

Gerard panel criticized the District Court' s order vacating the injunction for lack of

subject matter jurisdiction on the basis that the District Court did not appreciate "the nature of
the proceeding before the Bankruptcy Court.
. at 568. The

Gerard panel stated that because

the appeal concerned the Bankruptcy Court' s refusal to modify an already-entered injunction , the

issue of bankruptcy jurisdiction to entertain the motion relating to the Injunction was in reality a
non- issue.
. at 568. The panel
related to '

the case

because it resulted from an adversary
. at 568- 69.

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It is a misreading of

Gerard for Grace to argue , on the basis of the words just cited , that

Gerard

establishes that bankruptcy jurisdiction exists to enjoin

merely because the debtor , as distinct from

, filed an

proceeding requesting a Section 105 injunction. The panel was saying no more than that , when a
party asks the bankruptcy
, the relevant

jurisdictional issue is whether the bankruptcy court has jurisdiction to consider the modification
request rather than the underlying jurisdictional

jurisdiction to enter the injunction in the first place. Whether or not the panel was correct in this
regard , it is clear that the procedural posture of
Gerard
involving a motion to modify or clarify

an already- issued injunction rather than a motion to obtain an injunction in the first
permeated the panel' s analysis of jurisdiction. Right or wrong,
Order because

Gerard is simply irrelevant to the

in the current

the issue is whether the

jurisdiction to enter a new injunction , not limit an injunction that has already been
sum ,
Grace s and Maryland Casualty
s reliance on

Gerard

as having addressed

presented by this
superseded by, in contravention of and

Gerard

is an expressly non- precedential decision

Combustion Engineering and the

earlier line of decisions from the Third Circuit and elsewhere upon which it relies.

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Conclusion
For the reasons in the Motion and this Reply, if this Court should conclude that the Order

is not appealable to this Court as of right (and , in any event , as an alternative to a determination

that the Order is appealable as of right), this
Claimants leave to appeal pursuant to 28 U.
c. 9 158(a)(3).

Dated: May 16 , 2008 Wilmington , Delaware

LANDIS RA TH & COBB LLP

9/J G. Landis (N . 3401, Adam

~e.~
- and -

Kerri K. Mumford (No. 4186) 919 Market Street , Suite 600 O. Box 2087 Wilmington , DE Telephone: (302) 467- 4400 Facsimile: (302) 467- 4450 Email: landis~lrclaw. com mumford~lrclaw. com

Daniel C. Cohn Christopher M. Candon COHN WHITESELL & GOLDBERG LLP 101 Arch Street Boston , MA 02110 Telephone: (617) 951- 2505 Facsimile: (617) 951- 0679

Counsel for the Libby Claimants

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELA WARE
IN RE: W. R. Grace & Co.
et at.

Libby Claimants
1 :08-mc- 00090- RLB

Appellants Bankruptcy Case No. 01- 1139
Adversary Case No. 01- 771

R. Grace & Co. et at.

Appeal No. 08-

Appellees.

AFFIDAVIT OF SERVICE
STATE OF DELA WARE
) SS

NEW CASTLE COUNTY

Cathy A. Adams , being duly sworn according to law , deposes and says that she is employed by the law firm of Landis Rath & Cobb LLP , attorneys for the Libby Claimants in the above-referenced cases , and on the 16th day of May, 2008 , she caused a copy of the following:

REPLY OF LIBBY CLAIMANTS IN SUPPORT OF MOTION FOR LEAVE TO APPEAL ORDER ENJOINING ACTIONS AGAINST BNSF
to be served upon the parties on the attached list via first class mail or in the manner as indicated.

(2 a ~/)xsy
SWORN TO AND SUBSCRIBED before me this 16th day of May, 2008.

UN
Y PUBLIC
STAre OF
My commission

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R. Grace & Co.,

et ai.

Mark Shelnitz R. Grace & Co.
7500 Grace Drive

District Court Appeal
Service List

Columbia, MD 21044 (Debtors and Debtors in Possession)

David M. Bernick, P. Janet S. Baer , Esquire Lori Sinanyan , Esquire Kirkland & Ellis LLP 200 East Randolph Drive Chicago , IL 60601 (Counsel to W. R. Grace & Co. et al.

HAND DELIVERY
Laura Davis Jones , Esquire James E. O' Neill , Esquire Pachulski Stang Ziehl & Jones LLP 919 North Market Street , 17th Floor O. Box 8705 Wilmington , DE (Counsel to Debtors and Debtors in Possession)

Lewis Kruger, Esquire Kenneth Pasquale , Esquire Stroock & Stroock & Lavan LLP 180 Maiden Lane New York , NY 10038- 4982 (Counsel to Official Committee of Unsecured Creditors)

HAND DELIVERY
Michael R. Lastowski , Esquire Richard W. Riley, Esquire Duane Morris LLP 1100 North Market Street , Suite 1200 Wilmington , DE 19801- 1246 (Counsel to Official Committee of Unsecured Creditors)

HAND DELIVERY
Michael B. Joseph , Esquire Ferry, Joseph & Pearce , P. 824 Market Street, Suite 904
O. Box 1351

Wilmington , DE (Counsel to Official Committee of Asbestos Property Damage Claimants)

Scott L. Baena , Esquire Bilzin Sumberg Baena Price & Axelrod LLP First Union Financial Center 200 South Biscayne Blvd. , Suite 2500 Miami , FL 33131 (Counsel to Official Committee of Asbestos Property Damage Claimants)

HAND DELIVERY
Marla Rosoff Eskin , Esquire Mark T. Hurford , Esquire Campbell & Levine , LLC 800 North King Street , Suite 300 Wilmington , DE (Counsel to the Official Committee of Asbestos Personal Injury Claimants)

Peter Van N. Lockwood , Esquire
Nathan D. Finch , Esquire

Caplin & Drysdale , Chartered One Thomas Circle , N. Washington , DC 20005 (Counsel to the Official Committee of Asbestos Personal Injury Claimants)

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Elihu Inselbuch , Esquire Caplin & Drysdale , Chartered 375 Park Avenue , 35th Floor New York , NY 10152- 3500 (Counsel to the Official Committee of Asbestos Personal Injury Claimants)

HAND DELIVERY
Frank J. Perch , Esquire Office of the United States Trustee 844 King Street Suite 2311 Wilmington , DE (United States Trustee)

HAND DELIVERY
Teresa K.D. Currier , Esquire Buchanan Ingersoll & Rooney PC 1000 West Street , Suite 1410 Wilmington , DE (Counsel to Equity Committee)

Philip Bentley, Esquire Thomas M. Mayer , Esquire Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York , NY (Counsel to Equity Committee)

John C. Phillips , Jr. , Esquire Phillips , Goldman & Spence , P. 1200 North Broom Street Wilmington , DE (Counsel to David T. Austem , Future Claimants Representative)

Richard H. Wyron , Esquire Orrick , Herrington & Sutcliffe , LLP 3050 K Street , NW Suite 300 Washington , DC 20007 (Counsel to David T. Austern , Future Claimants Representative)

HAND DELIVERY
Edward B. Rosenthal , Esquire Rosenthal , Monhait , & Goddess , P . 919 Market Street Mellon Bank Center , Suite 1401 Wilmington , DE (Counsel to Continental Casualty Company)

Brian H. Mukherjee , Esquire Goodwin Procter LLP Exchange Place Boston , MA 02109 (Counsel to CNA Financial Corporation)

HAND DELIVERY
Elizabeth DeCristofaro , Esquire

Ford Marrin Esposito Witmeyer & GIeser, L.L.P. Wall Street Plaza , 23rd Floor New York , NY 10005- 1875 (Counsel to Continental Casualty Company)

Ian Connor Bifferato , Esquire Garvan F. McDaniel , Esquire Chad J. Toms, Esquire Bifferato Gentilotti LLC 800 North King Street , First Floor Wilmington , DE (Counsel to Royal Indemnity Company)

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Carl J. Pemicone , Esquire Wilson , Elser , Moskowitz , Edelman & Dicker LLP
150 East 42nd Street

New York , NY 10017- 5639 (Counsel to Royal Indemnity Company)

Daniel C. Cohn , Esquire Cohn Whitesell & Goldberg LLP 101 Arch Street Boston , MA 02110 (Counsel to Libby Plaintiffs)

HAND DELIVERY
Evelyn J. Meltzer, Esquire Pepper Hamilton LLP Hercules Plaza , Suite 5100 13 13 Market Street
PO Box 1709

Wilmington , DE 19899- 1709 (Counsel to BNSF Railway Company)

Edward C. Toole , Jr. , Esquire Anne Marie Aaronson , Esquire Pepper Hamilton LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia , P A (Counsel to BNSF Railway Company)

HAND DELIVERY
Mark J. Phillips , Esquire Jeffrey C. Wisler , Esquire Connolly Bove Lodge & Hutz LLP The Nemours Building
1007 N. Orange Street

O. Box 2207 Wilmington , DE (Counsel to Maryland Casualty Company)

Esquire Edward J. Longosz Laura G. Stover , Esquire Eckert Seamans Cherin & Mellott, LLC 1747 Pennsylvania Avenue , N. , Suite 1200 Washington , DC 20006 (Counsel to Maryland Casualty Company)

HAND DELIVERY
Steven M. Yoder , Esquire The Bayard Firm 222 Delaware Avenue , Suite 900 O. Box 25130 Wilmington , DE (Counsel to DIP Lender)

J. Douglas Bacon , Esquire Latham & Watkins LLP Sears Tower , Suite 5800 Chicago , IL 60606 (Counsel to DIP Lender)

HAND DELIVERY
David S. Rosenbloom , Esquire McDermott , Will & Emery 227 West Monroe Street Chicago , IL 60606- 5096 (Counsel to National Medical Care , Inc.

David E. Wilks , Esquire Buchanan Ingersoll PC The Nemours Building 1007 N. Orange Street , Suite 1110 Wilmington , DE (Counsel to Gamma Holding, NY)

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HAND

DELIVERY
Gary Smolker

Kathleen M. Miller , Esquire Smith , Katzenstein & Furlow LLP The Corporate Plaza 800 Delaware Avenue Wilmington , DE (Counsel to the Allen Plaintiffs)

Alice Smolker 4720 Lincoln Blvd. , Suite 280 Marina del Rey, CA 90292- 6977

HAND DELIVERY
Steven K. Kortanek, Esquire Klehr Harrison Harvey Branzburg & Ellers LLP 919 Market St. , Suite 1000 Wilmington , DE (Counsel to Carol Gerard)

Brian Parker , Esquire 36 South Charles Street
Charles Center South

Suite 2200 Baltimore , MD 21201 (Counsel to Carol Gerard)

HAND DELIVERY
Thomas D. Walsh , Esquire McCarter & English , LLP 919 Market St. , Suite 1800 Wilmington , DE (Counsel to James and Julie Holland)

Michael S. Etkin , Esquire Lowenstein Sandler P. 65 Livingston Avenue Roseland , NJ 07068 (Counsel to Keri Evans)

David K. Foust , Esquire
3030 W. Grand Boulevard
10th Floor

HAND DELIVERY
Francis A. Monaco , Jr. , Esquire Kevin J. Mangan , Esquire Womble Carlyle Sandridge & Rice , PLLC 222 Delaware Avenue , Ste. 1501 Wilmington , DE (Counsel to the State of Montana)

Detroit , MI 48202 (Counsel to the State of Michigan , Department of Corrections)

HAND DELIVERY
Mark D. Collins , Esquire
Deborah E. Spivack , Esquire Richards , Layton & Finger , P.

HAND DELIVERY
Bernard G. Conaway, Esquire Fox Rothschild LLP 919 Market Street , Suite 1300 Wilmington , DE (Counsel to the Lanier Law Firm Asbestos ClaImants)

One Rodney Square 920 N. King Street O. Box 551 Wilmington , DE (Counsel to The Chase Manhattan Bank)

Case 1:08-mc-00090-RLB
HAND DELIVERY
Daniel B. Butz , Esquire Gregory T. Donilon, Esquire William H. Sudell , Jr. , Esquire Morris , Nichols , Arsht & Tunnell 1201 N. Market Street O. Box 1347 Wilmington , DE (Counsel to The Scotts Co.

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Robert J. Sidman , Esquire
V orys ,

Tiffany Strelow Cobb , Esquire Sater, Seymour and Pease LLP 52 East Gay Street O. Box 1008 Columbus OH 43216 (Counsel to The Scotts Co.

HAND DELIVERY
Greenberg Traurig, LLP The Nemours Building 1007 North Orange Street , Suitel200 Wilmington , DE (Counsel to ExxonMobile)

HAND DELIVERY
Ellen W. Slights Assistant U.S. Attorney The Nemours Building 1007 Orange Street , Suite 700 Wilmington , DE

Dale R. Cockrell , Esquire

Christensen , Moore , Cockrell , Cummings & Axelberg, P. O. Box 7370 Kalispell , MT 59904 (Counsel to the State of Montana)