A Denver plaintiffs' lawyer initiated a tense and unusual courtroom exchange with U.S. District Judge Robert R. Merhige Jr. in Richmond Aug. 22, the day after the A. H. Robins Co. filed for voluntary reorganization under Chapter 11 of the federal bankruptcy law.
The subjects were Merhige's unannounced meeting two weeks earlier in Wichita, Kan., with other judges who had numerous Dalkon Shield cases pending before them; his acquaintance with company Chairman E. Claiborne Robins Sr.; and his private conversation with Robins about the possibility of a Chapter 11 filing.
The key portions of the exchange reprinted below came after preliminaries in which the lawyer, Douglas E. Bragg, told Merhige that "a number" of judges had provided information to him about the meeting:
Bragg: "We understand that you said that it was your belief based on a conversation you had with E. C. Robins Sr., which conversation we understand was ex parte, not in the presence of any lawyers, that the Robins Co. did not want to file a Chapter 11 proceeding, but that you had concluded based on the conversation with Mr. Robins that there was a limited fund available to pay the Dalkon Shield claimants. And we are interested in knowing whether you said that, and if the reports we have back are correct or not."
Merhige: "Well, I frankly don't think it is any of your business. It had to do with the 300 cases that were pending before my court. I will tell you, though, just as a matter of being overly generous to a visitor, yes, I did. I did not contemplate a meeting with Mr. Robins Sr., that was just by accident, I suspect.
"I was to speak with a representative of Robins at the suggestion of the plaintiffs and the defendants so that I would be in a position of getting it straight from somebody in authority, as distinguished from counsel, as to whether there were any plans, whether Robins intended to go to Chapter 11. I am not going to get a group of judges together to talk about a national disposition of these cases if we were going to be faced with Chapter 11 the next day. Or any time.
"It is true that Mr. Robins attended, and his view was that a Chapter 11 was a last resort. Consideration had been given to it, but they hoped to avoid it. That he felt confident with time all of these matters could be disposed of. And that is what I reported to the judges. But I also reported that my own view was that if there was going to be a great deal of opposition to the class action in behalf of Shield claimants that I thought Chapter 11 was probably inevitable. As it turned out, for a change I was right."
Bragg: "Yes. We understand that Mr. Robins Sr. is a neighbor of yours, and probably a social friend."
Merhige: "Well, I wouldn't say social any more than anybody that I know. And that, too, is none of your business. But he is a neighbor and a fine man as far as I know.
"Well, I go further than that. I think he is a fine man."
Bragg also asked Merhige if "you had notice of this bankruptcy before yesterday?" The judge replied, "I wish I had."
Last week, a reporter put questions about the exchange to Merhige through his secretary. His only response was that he had met "with representatives of the company pursuant to agreement of counsel in the then pending cases before me." Bragg declined to comment.