1 OBJECTION OF QUIGLEY COMPANY, INC. AND PFIZER INC. TO ...

Bruce R. Zirinsky (BZ 2990)
John H. Bae (JB 4792)
CADWALADER, WICKERSHAM & TAFT LLP
Attorneys for Pfizer Inc.
One World Financial Center
New York, New York 10281
Telephone: (212) 504-6000
Facsimile: (212) 504-6666
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re :
Chapter 11
QUIGLEY COMPANY, INC., :
Case No. 04-15739 (PCB)
Debtor. :
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QUIGLEY COMPANY, INC., : Adv. Proc. No. 04-04262 (PCB)
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Plaintiff, :
v. :
A. C. Coleman, THE OTHER PARTIES :
LISTED ON EXHIBIT A
TO THE COMPLAINT, JOHN DOES :
1-1000 AND JANE DOES 1-1000,
:
Defendants.
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OBJECTION OF QUIGLEY COMPANY, INC. AND
PFIZER INC. TO GERALD J. CLARK, SR.’S MOTION
TO MODIFY OR VACATE THE PRELIMINARY INJUNCTION
Quigley Company, Inc. (“Quigley”), plaintiff debtor in possession, and Pfizer Inc.
(“Pfizer”) hereby object to the motion of Gerald J. Clark Sr. (“Clark”), filed on March 11, 2005
(the “Motion”), for an order modifying or vacating the preliminary injunction issued by the
Court to allow Clark to prosecute his personal injury claim against Pfizer.
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INTRODUCTION
1. As a preliminary matter, Quigley and Pfizer request that the Court defer
hearing the Motion until such time as Clark provides proper notice of the Motion to all parties in
interest in accordance with appropriate rules. Although Clark filed the Motion on March 11,
2005, he did not provide any party in interest, including Quigley and Pfizer, with notice of a
hearing or an objection deadline. As discussed below, on March 17, 2005, Pfizer’s Maryland
counsel requested certain information from Clark’s counsel regarding the basis for the Motion.
By letter dated March 28, 2005, Clark’s counsel provided Pfizer’s Maryland counsel with limited
information, and requested that Pfizer inform Clark’s counsel whether Pfizer intended to oppose
the Motion. By letter dated April 13, 2005, Pfizer’s Maryland counsel advised Clark’s counsel
that Pfizer intended to oppose the Motion and that Pfizer would submit responsive papers only
after Clark obtained a hearing date from the Court and provided proper notice to all parties
entitled to receive such notice.
2. On April 14, 2005, only days before the hearing, Clark filed both an order
to show cause and a motion to set a hearing date on the Motion. Contrary to Clark’s assertions in
his motion to set a hearing date, Pfizer is not the only party in interest with respect to the Motion.
As discussed below, the Motion, if granted will impair the insurance Pfizer shares with Quigley.
Since the shared insurance is Quigley’s primary asset, and will be used to fund its plan of
reorganization, all holders of present and future asbestos-related personal injury claims against
Quigley have an interest in having the Court deny the Motion. Accordingly, proper notice
should have been provided to, among others, the Official Committee of Unsecured Creditors and
the future claimants’ representative. Because Clark provided improper notice of the Motion, the
Court should defer the hearing on the Motion until proper notice is given.
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3. To the extent the Court determines to hear the Motion on April 18, the
Motion should be denied. Clark first sued Quigley as well as other defendants in 1987 in an
asbestos personal injury lawsuit. The lawsuit sought damages for personal injury related to
asbestos exposure that Clark alleged he had received while working. In the complaint, Clark
sued twenty defendants, and Clark’s attorney from the Law Offices of Peter Angelos made the
representation to the Court that Clark was exposed to asbestos as a fire fighter at the Bethlehem
Steel Sparrows Point Steel Plant from 1968 through the filing of the lawsuit in 1987. See Exhibit
A. The lawsuit was settled, and Clark agreed to a limited disease release. Clark did not sue
Pfizer in that lawsuit, nor did he ever contend in that lawsuit that he was ever exposed to
Kilnoise, an asbestos-containing product previously made by Pfizer. Moreover, Clark did not
even allege any exposure to asbestos prior to 1968.
4. Clark then commenced his current personal injury lawsuit in 2004 against
Quigley and Pfizer and thirty-seven other defendants. Clark’s current complaint makes no
specific mention of Pfizer’s products, including Kilnoise, nor has Clark ever testified in the
current or prior action that he was exposed to Kilnoise. It was not until the Court issued the
preliminary injunction order that Clark conveniently recalled using Kilnoise over thirty years
ago, despite having no recollection almost eighteen years ago of having any Kilnoise exposure or
any asbestos exposure before 1968 when he filed his 1987 lawsuit. Notwithstanding, Clark has
not provided any credible evidence to support his allegations that he was exposed to and worked
with Kilnoise. Clark merely states in his affidavit in support of the Motion that he specifically
recalls using Kilnoise. Despite Clark’s unsubstantiated recollections to the contrary, Pfizer’s
business records do not contain any evidence indicating that Pfizer sold Kilnoise to any of
Clark’s employers or that Kilnoise was sold to any of the sites where Clark worked.
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5. The preliminary injunction order was issued to protect the insurance
Quigley shares with Pfizer, which will be used to fund Quigley’s chapter 11 plan of
reorganization. Allowing Clark’s claim to proceed against Pfizer will impair Quigley’s
reorganization efforts by depleting the shared insurance, and defeat the primary purpose of the
preliminary injunction.
6. The Court should deny the Motion.
BACKGROUND
7. In 1987, Clark commenced his first asbestos personal injury action against
Quigley and nineteen other defendants. That action was settled for $12,000 and Clark executed a
limited release. Clark did not sue Pfizer in that lawsuit, nor did Clark mention he ever used or
was exposed to Kilnoise. Clark claimed in the lawsuit that his asbestos exposure did not begin
until 1968. A copy of the Short Form Complaint and Prayer for Jury Trial is attached hereto as
Exhibit A.
8. On August 3, 2004, after being diagnosed with mesothelioma, Clark
commenced his current personal injury action, naming thirty-nine defendants, including both
Quigley and Pfizer. The complaint makes no specific mention of Kilnoise.
chapter 11 case.
9. On September 3, 2004 (the “Petition Date”), Quigley commenced its
10. On the Petition Date, Quigley filed a motion (the “PI Motion”) for a
preliminary injunction enjoining the commencement or continuation of all actions against Pfizer
that allege personal injury or wrongful death based upon purported exposure to asbestos,
asbestos-containing products, silica and mixed dust, and enjoining all parties from taking any
action with respect to any property in which both Pfizer and Quigley have an interest, including,
the shared insurance.
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11. On December 17, 2004, the Court entered an order granting the PI Motion
(the “PI Order”). On December 27, 2004, the Ad Hoc Committee of Tort Victims filed a notice
of appeal of the PI Order and simultaneously filed a motion for leave to appeal the PI Order. On
April 8, 2005, the United States District Court for the Southern District of New York issued a
decision and order (the “Decision”) denying the Ad Hoc Committee of Tort Victims’ motion for
leave to appeal, and directing that the clerk not docket the Ad Hoc Committee’s notice of appeal.
12. The PI Order by its terms provides for relief from the preliminary
injunction if a party demonstrates to the Court, based on competent evidence, that it has an
asbestos-related personal injury claim solely against Pfizer based on exposure to a Pfizer
product, and the Court determines that the insurance Quigley shares with Pfizer could not be
used to satisfy the claim. See PI Order at 6.
13. On March 11, 2005, Clark filed the Motion in an attempt to demonstrate
that he possesses a Pfizer-only claim that would entitle him to relief from the preliminary
injunction. The Motion alleges that Clark will be irreparably harmed if the preliminary
injunction protecting Pfizer is not promptly vacated to allow him to prosecute his claim against
Pfizer, and more particularly, that his deposition needed to be taken with Pfizer counsel able to
participate 1 . Clark alleges that he now specifically recalls that between 1962 and 1967 at several
job sites where he was employed, he was exposed to Kilnoise, an asbestos-containing product
previously made by Pfizer. Clark further asserts that his alleged exposure to Kilnoise occurred
prior to Pfizer’s 1968 acquisition of Quigley. See Affidavit of Gerald J. Clark, Sr., dated March
9, 2005 (the “Clark Affidavit”).
1 Notwithstanding Clark’s “urgent need” to have Pfizer present at his deposition, Clark has waited approximately
3 months since the PI Order was entered to seek relief from the preliminary injunction.
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14. In order to ascertain the validity of Clark’s allegations, by letter dated
March 17, 2005, Pfizer’s Maryland counsel requested the following information from Clark’s
counsel: (i) the names of Clark’s employers at the various jobsites described in the Clark
Affidavit where Clark alleges exposure to Kilnoise, (ii) the specific months and years that Clark
worked at the jobsites described in the Clark Affidavit, (iii) the specific locations on each jobsite
where Clark worked when the alleged exposure to Kilnoise took place, and (iv) a copy of Clark’s
social security records showing his employers for the years in question.
15. By letter dated March 28, 2005, Clark’s counsel responded to Pfizer’s
Maryland counsel’s request by only enclosing Clark’s social security records, which lists Clark’s
employers from January 1960 through December 1980, and by stating that the other requested
information was currently unavailable.
16. Thereafter, Pfizer reviewed its business records to determine whether
Kilnoise was sold either to any of the jobsites where Clark worked or to any of his employers
from 1962-1967, the years of Clark’s alleged exposure. Pfizer reviewed a list of twenty-five
possible exposure sites and employers, which was compiled from Clark’s social security records
and the jobsites referenced in the Clark Affidavit. See Affidavit of Gabriel Silva, sworn to April
14, 2005 (the “Silva Affidavit”), 3, a copy of which is attached hereto as Exhibit B. Pfizer’s
records do not show that it sold Kilnoise to any of the sites where Clark worked or to any of
Clark’s employers during the alleged exposure period. Id. 4. This serves to confirm Clark’s
original representations in his 1987 lawsuit that his exposure did not begin until 1968.
17. By letter dated April 13, 2005, Pfizer’s Maryland counsel advised Clark’s
counsel that Pfizer’s records did not show sales of Kilnoise to any of Clark’s employers or job
sites during Clark’s alleged years of exposure. Pfizer’s Maryland counsel further advised
Clark’s counsel that Pfizer intended to oppose the Motion and that Pfizer would submit
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esponsive papers only after Clark obtained a hearing date from the Court and provided proper
notice to all parties entitled to receive such notice. A copy of the April 13, 2005 letter is attached
hereto as Exhibit C.
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BASIS FOR OBJECTION
18. Clark has failed to demonstrate that he holds a Pfizer-only claim that
would entitle him to relief from the preliminary injunction. As a preliminary matter, prior to
commencing the lawsuit at issue, in 1987 Clark commenced a personal injury action against
Quigley and certain other defendants. Clark did not sue Pfizer in that lawsuit, nor did Clark
mention use of or exposure to Kilnoise or claim any asbestos exposure prior to 1968. Thereafter,
in August 2004, after being diagnosed with mesothelioma, Clark commenced his current
personal injury action, naming thirty-nine defendants, including both Quigley and Pfizer.
Despite Clark’s allegations in the Motion that he has specific recollections of working with and
being exposed to Kilnoise, his complaint contains no details about Pfizer or its products,
including Kilnoise. Moreover, Clark specifically represented in his 1987 lawsuit that his
asbestos exposure did not start until 1968. Clark has never testified, in his current or prior
action, that he was ever exposed to Kilnoise. It was not until the Court entered the PI Order that
Clark conveniently recalled being exposed to a Pfizer product. However, aside from his sudden
purported recollection of Kilnoise, Clark has provided no evidence of exposure to a Pfizer
product. Indeed, he has sued thirty-eight other defendants in addition to Pfizer.
19. As described above, Pfizer reviewed its business records to determine
whether Kilnoise was sold either to any of the jobsites where Clark worked or to any of his
employers from 1962-1967, the years when Clark purportedly was exposed to Kilnoise. Pfizer
reviewed a list of twenty-five possible exposure sites and employers, which was compiled from
Clark’s social security records and the jobsites referenced in the Clark Affidavit. See Silva
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Affidavit, 3. Pfizer’s records do not show that it sold Kilnoise to any of the sites where Clark
worked or to any of Clark’s employers during the alleged exposure period. Id. 4. Other than
bald allegations contained in the Affidavit, Clark has not provided any credible evidence that
demonstrates that he was exposed to Kilnoise. Clark’s own pleadings from his 1987 complaint
refute allegations of any asbestos exposure, let alone exposure to Kilnoise, prior to 1968.
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20. Moreover, the complaint filed by Clark names scores of defendants
besides Pfizer. Nothing in the PI Order prevents Clark from continuing to prosecute his claim
against the other defendants. Under Maryland law, the jurisdiction where Clark’s lawsuit is
pending, all defendants in the action can be held jointly and severally liable. See Cooper v.
Bikle, 334 Md. 608, 619 (1994). Clark’s inability to proceed against Pfizer because of the
preliminary injunction in no way impairs Clark’s ability to receive a 100% recovery from one or
more of the other thirty-seven defendants, excluding Quigley. Id.
21. Similarly, having brought an action against a number of defendants other
than Pfizer, Clark has no basis to contend that he has a claim solely against Pfizer, as required by
the PI Order. The procedure contained in the PI Order for relief from the preliminary injunction
for a so-called Pfizer-only claim is intended to be restrictive, and requires that the party have
asserted a claim only against Pfizer, not numerous other defendants.
22. Further, Clark’s claim if allowed to proceed against Pfizer will deplete the
insurance Quigley shares with Pfizer, even though the alleged exposure period pre-dates Pfizer’s
acquisition of Quigley. Under certain settlement agreements between Pfizer, Quigley and
several of their insurers, Pfizer is required to bill claims across the coverage block (i.e., to
allocate claims among all of its insurance policies, both shared and non-shared). Accordingly,
Pfizer cannot bill only its pre-1968 insurance coverage for liability on account of pre-1968
exposure, but is required by contract to bill its post-1968 insurance policies, which are shared
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insurance policies, to the detriment of Quigley’s estate and its creditors. The shared insurance
policies constitute a significant portion of the assets that will be used to fund Quigley’s chapter
11 plan of reorganization. Allowing Clark’s claim to proceed would defeat the primary purpose
of the preliminary injunction, which is to protect the shared insurance so it can be used to fund
Quigley’s plan of reorganization.
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23. Moreover, the preliminary injunction is not permanent, but is merely in
place long enough to preserve Quigley’s assets while it reorganizes. As the District Court
explained in the Decision:
This case involves only a preliminary injunction staying, rather
than channeling, claims that is intended to provide Quigley with
time and certainty regarding available resources that is necessary
for it to achieve a successful reorganization.
Decision, at 16. Allowing Clark’s claim to proceed will impair Quigley’s available resources,
i.e., the shared insurance, and will impede Quigley’s ability to reorganize.
24. As a practical matter, allowing Clark’s claim to proceed only will
encourage other plaintiffs to seek relief from the preliminary injunction with nothing more than
self serving assertions that they also have a specific recollection of using a Pfizer product over
thirty years ago. Opening the floodgate to these types of allegations will significantly hinder
Quigley’s reorganization efforts.
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CONCLUSION
25. For all of the foregoing reasons, the Motion should be denied.
Dated: New York, New York
April 15, 2005
CADWALADER, WICKERSHAM & TAFT LLP
Attorneys for Pfizer Inc.
By: /s/ John H. Bae
Bruce R. Zirinsky (BZ 2990)
John H. Bae (JB 4792)
One World Financial Center
New York, New York 10281
Telephone: (212) 504-6000
Facsimile: (212) 504-6666
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