When the Melard bathroom-components factory closed in Passaic, New Jersey, 112 workers were laid off, and more than 80 filed workers’ comp claims alleging that they’d been injured on the job but just hadn’t gotten around to reporting it previously. Mass comp filings of this sort are by no means rare following plant closings, at least in some parts of the country. However, the employer, Bath Unlimited — a subsidiary of Masco that does business as Melard — sniffed fraud, and decided to fight back. It sued the workers and the law firm that represented them, Ginarte O’Dwyer and Winograd, alleging racketeering:
The company claimed in its 2004 federal lawsuit that the Ginarte law firm and attorney [Michael] Policastro encouraged workers angry at being fired to file claims, most of which were identical except for employees’ personal information. According to the suit, the law firm directed workers to provide false information to doctors, and “virtually all” of the employees examined by physicians for Bath had no disabilities or none attributable to the company, the complaint charged.
The 84 worker-defendants did not make an appearance to contest the charges, and last month a federal judge signed a default judgment against them which leaves them personally on the hook for at least $2.26 million. (Greg Saitz, “$2.26M fraud judgment against workers shakes labor landscape”, Newark Star-Ledger, Mar. 21; “Workers penalty to be reviewed”, Mar. 30; John Petrick, “Workers must pay ‘compensation’ after losing claims suit”, Bergen Record, Mar. 25; Workers Comp Insider, Mar. 21 and Mar. 30).
Not surprisingly, the ruling has sent shock waves through the workers’ compensation and labor bar. Some of these lawyers argue as if granting employers any right at all to pursue fraud sanctions will impermissibly chill legitimate claims; presumably they imagine that the right to sue should forever be left a one-way affair. Others not unreasonably take exception to the severity of federal racketeering law’s treble-damage remedy (although the default “progressive” position, or so it seems, is otherwise to defend that same treble-damage remedy). Finally, and most cogently, they have pointed to the intrinsic harshness of the default judgment as a procedural device, which in this case has laid heavy burdens on unsophisticated immigrant workers, some of whom might plausibly have advanced the merits of their individual comp claims even if the bulk of the other 80-plus cases should be shown to be bogus.
But what of the law firm of Ginarte O’Dwyer and Winograd, which was at the center of the fraud scheme, if a fraud scheme there was? Well, this is the piquant part: after denying the allegations in court papers and trying unsuccessfully to get the federal case dismissed, the law firm settled separately with Bath/Masco/Melard on undisclosed terms. That protected its own interests, but left its former clients … well, “twisting in the wind” may not be too strong a way of putting it. The large law firm of Lowenstein Sandler has now stepped forward, acting on what it says is a pro bono basis, to attempt to get the default judgment against the workers overturned. (Greg Saitz, “Defending factory workers”, Newark Star-Ledger, Apr. 11).