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Tuesday, October 15, 2019

N.Y. asbestos judge refuses to change controversial punitive damages order

By Heather Isringhausen Gvillo | Dec 30, 2014

NEW YORK (Legal Newsline) – Days after receiving a lot of heat for her punitive damages order in the New York City Asbestos Litigation court, Judge Sherry Klein Heitler denied several motions opposing her April decision to allow punitive damages in asbestos cases.

Punitive damages had been deferred in all NYCAL cases since September 1996 until Heitler issued her April 8 order, a move that earned NYCAL the No. 1 spot on the Judicial Hellholes Report released by the American Tort Reform Association earlier this month. She held that New York law requires NYCAL plaintiffs to have the same opportunities to seek punitive damages as any other plaintiffs in the state, which must be applied equally.

The Weitz & Luxenberg law firm filed a motion requesting an order to lift former deferral requirements for punitive damages in Section XVII of the NYCAL Case Management Order (CMO).

While plaintiffs assert deferral is unethical, unconstitutional and prevents defendants from engaging in settlement discussions, opponents believe punitive damages will only deplete resources, punishing future asbestos victims and filling the pockets of plaintiffs attorneys.

In her Dec. 18 orders, Heitler denied opposition motions 011, 012 and 013 filed on behalf of asbestos defendants by the law firm of Darger, Errante, Yavitz & Blau, LLP, calling them meritless.

Motions 011 and 013 seek to renew and reargue the court’s April 8 punitive damages decision.

The defendants argued that the court “misapprehended” New York law when it inappropriately issued the CMO without the parties’ consent. As a result, they believed leave to reargue the order is necessary.

They argued that despite their pleas, the court allowed punitive damages without providing them an opportunity to negotiate potential substantive changes to the CMO.

As a result, the defendants chose to withdraw consent of the order, causing the court to be in material violation of New York law.

Furthermore, the CMO unlawfully contains numerous provisions altering the CPLR enacted by the New York State legislature, the defendants argued, which no judge has the authority to do.

Litigation practices since the order show that punitive damages claims in NYCAL is “fundamentally incompatible with ‘the ultimate objective of bringing about the fair, expeditious and inexpensive resolution to these cases,’” the motion claimed.

Heitler remained unconvinced.

She concluded that there is no basis to warrant renewal of the original motion, because the defendants “point to nothing more than the passage of time in which, in the face of the order, events have evolved relating to the status of this litigation thereunder. Of course the order changed things, most court orders do.”

Heitler explained that if the effects of the court’s orders cannot be considered new facts to warrant renewal or it would result in unending motion practice on the issue.

“Moreover, nothing defendants have advanced on this motion changes the fundamental fact that the public policy of New York permits punitive damages, and this court cannot justify a situation in which victims of asbestos exposure are permitted to apply for punitive damages in other courts in this state but not in this one,” Heitler wrote.

She added that the defendants failed to meet the required standards for a motion to reargue, and may not now “take another bite of the apple.”

“A motion for reargument affords a party the opportunity to establish that the court overlooked or misapprehended relevant facts or misapplied controlling principles of law,” Heitler stated. “It is not supposed to serve as a vehicle by which the unsuccessful party may argue once again the very questions previously decided, nor is it designed to provide the unsuccessful party an opportunity to advance arguments different from those originally presented.”

As for motion 012, it sought an indefinite extension of the stay applied to Heitler’s April 8 order. The defendants believed an extension was appropriate because the court, trial judges and parties needed more time to respond to the “sea of change wrought by the order.”

Heitler denied the motion, calling it open-ended.

She explained that negotiations proceed slowly due to the size of NYCAL, and it is not appropriate to continue the stay without impetus to the parties to negotiate.

Furthermore, Heitler does not support the defendants’ argument that chaos and confusion exists among the trial judges and parties.

“It is incongruous to assume that the qualified and efficient trial judges of this court are not competent to address counts for punitive damages in the asbestos cases on trial before them,” she wrote, adding that so far none of the judges have requested any guidance or clarification concerning the punitive damages issue.

In their arguments, the defendants pointed to several “diverse and inconsistent rulings” handed down by various trial judges as they attempt to work through the changes the CMO brought to their courtrooms.

However, Heitler held that each trial judge is in charge of carrying out the punitive damages order in his or her own courtroom, and there likely won’t be any “carbon copied responses” across the board.

Any defendants who believe they need more information detailing the changes are permitted discovery requests tailored to punitive damages issues.

“What remains unchanged, however, is the fact that the public policy of New York permits punitive damages and having ruled that the unilateral deferral thereof is fundamentally unfair, it is inappropriate for this court to then impose an open ended stay which, if imposed, would effectively revoke the order and deny the principles on which it is based,” Heitler wrote.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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