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Monday, February 24, 2020

Replaced NYCAL judge was 'hands-off,' allowed asbestos plaintiffs bar to 'run the show,' defense attorneys say

By Jessica M. Karmasek | Mar 3, 2015


MANHATTAN, N.Y. (Legal Newsline) - Recent reports in the New York media paint the New York City Asbestos Litigation court and its former chief judge as essentially dirty, giving special treatment to a certain plaintiffs law firm and paving the way for hefty paydays.

A spokesman for the asbestos court contends the reports are false, made-up. But a number of attorneys who practice in New York City -- who declined to be named publicly -- argue the reports are far from fabricated.

According to a Jan. 25 article in the New York Post, asbestos-injury law firm Weitz & Luxenberg gets its cases fast-tracked, receives more favorable rulings than other firms and gets “first dibs” on jurors in the asbestos court.

Various defense attorneys agree, pointing out how unusual it was for Judge Sherry Klein Heitler, who managed the docket, to grant a defendant’s motion for summary judgment. She was replaced on Monday by Manhattan Supreme Court Justice Peter Moulton, according to another Post report.

“They have a huge market share on this court and, for this reason, they’re pretty influential,” one defense attorney said of the Weitz firm.

The Weitz law firm handles the majority of asbestos cases in the court, which is a special division of the Manhattan Supreme Court.

Whether it’s because of personal relationships, alleged corruption or simply a push to process a lot of cases, opposing law firms are highly critical of how Heitler, who was assigned to the asbestos court in 2009, ran things.

One defense attorney described her as “completely hands-off,” saying she didn’t preside over any trials and didn’t litigate any cases.

Another defense attorney agreed, explaining that she ruled on motions, etc. But when it was time to go to trial, cases were assigned to one of the other judges -- usually judges Martin Shulman or Joan Madden.

“She came from family court, to try complex civil litigation,” one attorney noted. “That’s why she doesn’t try any cases. That’s why she assigns out to other judges.”

Another defense attorney described her as a “master of ceremonies.”

“Part of it is structural,” the attorney said, noting that Heitler has a special master that does “a lot of heavy lifting.”

On top of that, almost everything occurred in her chambers.

“She doesn’t do anything in her courtroom,” one defense attorney said. “Anytime you do get her in open court, she won’t actually say anything.”

And defendants were always asked to settle, the attorney noted.

Requests to interview Heitler have gone unanswered. But David Bookstaver, director of communications for New York State Courts, denies the Weitz firm received any preferential treatment.

He said it all boils down to case management.

“We have matrimonial, city, asbestos, med(ical) mal(practice) parts,” he said of the city court system. “Are they treated differently? Yes. Are they treated preferentially? No.”

As the number of asbestos-related cases began to grow, the court had to adopt a different approach, Bookstaver explained.

“If we didn’t, it would be a mess,” he said.

According to figures provided by the court, 464 asbestos cases were filed in 2010. That number increased to 524 in 2011; 582 in 2012; and 504 in 2013. Last year, the number dropped to 463. Each filing, the court noted, represents one plaintiff.

“There are so many people suing, there has to be a separate court,” Bookstaver said, adding that the mesothelioma cases only get priority access to juries because they’re mass tort litigation with “tremendous” caseloads.

As to the recent Post reports, the court spokesman called them “mythical.”

But the numbers don’t lie, said Tom Stebbins, executive director for the Lawsuit Reform Alliance of New York.

“Just from what I’ve seen, in terms of rulings, NYCAL is far more plaintiff-friendly than any other asbestos court in the country,” he said. “And the difference really has taken place since Judge Heitler’s placement as chief judge of the court.”

The asbestos court, he noted, delivers verdicts 250 percent higher than other states.

In December, the American Tort Reform Association released its annual report of the jurisdictions it feels apply laws in an unfair and unbalanced manner. NYCAL claimed the top spot for 2014, up from third in 2013.

“The (NYCAL) docket has been transformed from a challenging jurisdiction for defendants to a patently unfair one,” the report stated, noting four verdicts between $7 million and $25 million in the past year.

“Recent decisions by the court may cause the verdict levels to climb even higher in 2015.”

In April, Heitler entered an order -- at the request of Weitz -- that allows punitive damages in NYCAL cases for the first time since 1996.

For nearly 20 years, the court deferred, or did not decide, punitive damages claims.

Judge Helen Freedman, the former manager of the asbestos court docket and who now serves on the New York appellate bench, had written it into the NYCAL Case Management Order, saying that punitive damages had “little or no place” in such litigation.

However, Weitz argued in its motion that prohibiting plaintiffs from seeking punitive damages was unethical, unconstitutional and preventing defendants from engaging in settlement discussions.

“Judge Heitler’s decision to reintroduce punitive damages has significant consequences for defendants and insurers in NYCAL cases,” according to the ATRA report.

Even after the report’s release, Heitler denied several motions opposing her decision.

Defense attorneys contend Heitler’s decision has created “chaos and confusion.”

“It’s a very skewed system in favor of the plaintiffs and, in particular, of Weitz and Luxenberg,” one said.

Another defense attorney called the reinstatement of punitive damages an “absolute game-changer.”

“There’s no way for a company that doesn’t exist or doesn’t sell their product anymore to correct behavior that happened in 1955,” the attorney explained. “You just can’t do that in our litigation -- most of which happened 30, 40 or 50 years ago.

“That’s why prior judges and judges in other jurisdictions don’t allow it. All she’s doing is punishing insurance companies and law firms for refusing to settle.”

One defense attorney went as far as to say that the plaintiffs’ bar is “running the show.”

The question of whether disgraced Assembly Speaker Sheldon Silver had some hand in shaping the asbestos court is a “legitimate” one, another defense attorney said.

As speaker, Silver could appoint individuals to the state’s powerful Judicial Screening Committee. The panel reviews candidates for the state Supreme Court and the appellate division, and makes its recommendations to the governor.

In 2008, Silver appointed Arthur Luxenberg to the committee. And, up until recently, Silver was “of counsel” at Weitz.

However, Silver was arrested in January and indicted last month on corruption charges. Among other things, he is accused of steering state funding to a doctor whose asbestos research center referred patients to Weitz, resulting in millions in fees for Silver. 

  That physician, Dr. Robert Taub, headed a mesothelioma research facility at Columbia University until Silvers arrest. According to the Post, Taub is a cooperating witness for federal prosecutors. 


Sources told the newspaper last month that the civil court also is under federal investigation.

“As someone once described it to me, imagine if you’re ruling from the bench on a case where the attorney or attorney’s law firm has the future of your career in their hands,” Stebbins said. “How do you think you’re going to behave as a judge?

“It’s certainly something that raises a lot of red flags.”

But did the pressure from the Post reports get to Heitler in her final months on the job?

A couple of defense attorneys noticed some subtle changes.

“She’s usually always criticizing defendants for not doing things quick enough,” one attorney said. “But since the stories broke, she... slowed things down for us.”

Heitler’s presence wasn’t the only problem in NYCAL, one attorney said.

But a change in judicial personnel isn’t the lone solution, the attorney added. The court’s current process and case management order also need to be looked at.

“Whatever you think about asbestos litigation, not all cases are meritorious,” the attorney said.


From Legal Newsline: Reach Jessica Karmasek by email at



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Organizations in this Story

Weitz and LuxenbergNew York State CourtsLawsuit Reform Alliance of New YorkNew York City Asbestos Litigation