NYCAL plaintiffs say no need to stay cases to create new case management practices

By John O'Brien | Jun 10, 2015

NEW YORK (Legal Newsline) – Plaintiffs attorneys in what has been called the most plaintiff-friendly jurisdiction in the country have responded to a request to stay asbestos lawsuits for 60 days, saying it is neither “the time nor the occasion."

A group of plaintiffs attorneys practicing in the New York City Asbestos Litigation system on May 14 filed a response to a request made by defendants that feel NYCAL has become too unfair to them.

In late March, the defendants asked new NYCAL chief judge Peter Moulton to impose a 60-day stay to revise the case management order governing asbestos suits.

“The defendants must be fully aware of the extreme prejudice any such stay would cause to numerous terminally ill plaintiffs, for whom even a short delay in the ability to obtain a trial likely means they will not live to have their day in court,” the plaintiffs attorneys’ response says.

“Plaintiffs respectfully submit that this is neither the time nor the occasion to ‘stay’ all NYCAL proceedings, or to throw out the longstanding case management guidelines.”

The proposed stay would halt all proceedings except certain depositions and discovery in cases slotted on the court’s in extremis docket, which is reserved for plaintiffs with the most serious medical conditions.

The current CMO is 27 years old but has been amended several times, including a controversial 2014 decision.

NYCAL’s recent time in the spotlight began when former chief judge Sherry Heitler ruled in 2014 to reintroduce punitive damages in asbestos cases after years of them being deferred.

Then, in December, the American Tort Reform Association named NYCAL the No. 1 Judicial Hellhole in the country in its annual report.

Things continued in 2015 when former New York Assembly Speaker Sheldon Silver was indicted over allegations that he traded state grants to the hospital of a doctor who provided him for referrals to asbestos plaintiffs.

Silver had long been listed as of counsel at the firm Weitz & Luxenberg, which files the majority of cases in NYCAL. The firm has denied any knowledge of Silver’s alleged scheme.

And most recently, Heitler left her post after reaching the mandatory retirement age. Moulton was named to replace her.

Plaintiffs attorneys said in their response that there is no truth to defense claims of favoritism towards plaintiffs. A new CMO could be negotiated during litigation anyway, they say.

“With the exception of one newly revised CMO provision – which does nothing other than to afford NYCAL plaintiffs precisely the same rights afford to all other New York plaintiffs, and to all New York asbestos plaintiffs in other parts of the State, namely, to seek punitive damages jury instructions under appropriate circumstances – defendants have long acquiesced in and fruitfylly abided by exactly the same CMO that they now disparage,” plaintiffs attorneys wrote.

“Their application for a litigation-wide stay is supported by nothing whatsoever other than rhetoric that is baseless, insupportable and already thoroughly rejected by the NYCAL Court.”

Authoring the response was Alani Golanski of Weitz & Luxenberg. Signing onto it were attorneys from Belluck & Fox; Levy & Konigsberg; Lanier Law Firm; Seeger Weiss; Early, Lucarelli, Sweeney & Strauss; Wilentz, Goldman & Spitzer; Napoli Bern Ripka Shkolnik; Law Offices of John C. Dearie; Locks Law Firm; The Williams Law Firm; and Karst & von Oiste.

The response added that there is no “real-world possibility” that a new CMO could be fashioned within 60 days and that the defendants have not met their burden for obtaining a stay.

“Defendants have proffered not one iota of evidence of any hardship whatsoever that they would endure absent a stay of all NYCAL proceedings,” it says.

“Their conclusory claim of an ‘ongoing and systematic deprivation of’ their rights is insupportable, and cannot be the ground on which an entire litigation is stayed, lest any litigant seeking protracted delay be incentivized to claim the same at any time.”

When the NYCAL defendants filed their motion, they included a summary of their claims written by E. Leo Milonas, an attorney for Cleaver-Brooks, to Moulton.

Milonas’ letter says:

-It is unfair to consolidate cases in the manner NYCAL does, and that the average verdict in consolidated cases per plaintiff is higher than trials featuring single plaintiffs;

-Rulings on burden of proof, late product identification, the production of plaintiffs’ bankruptcy trusts, recklessness charges, punitive damages are not in step with rulings on those issues in other jurisdictions;

-Plaintiffs firms are receiving preferential treatment by having to meet a lower standard to have a case on the in extremis docket;

-Certain firms have their cases advanced faster than others;

-The court has found for plaintiffs attorneys too often in discovery disputes and summary judgment and evidentiary motions; and

-Lung cancer cases brought by smokers have flooded the court since two 2011 multimillion-dollar verdicts.

“New York courts should enjoy a reputation for fair dealing and equal justice,” Milonas wrote.

“The contrast, however, between how defendants are treated elsewhere in the New York court system and NYCAL is striking.”

From Legal Newsline: Reach editor John O’Brien at jobrienwv@gmail.com.


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