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Defendants in NYC asbestos court say it has become too unfair, ask for stay

By John O'Brien | Apr 1, 2015

NEW YORK CITY (Legal Newsline) – Defendants in what has been described as the most plaintiff-friendly jurisdiction in the country have asked its new judge to put a stop to things in order to amend the case management order that governs it.

Defendants in the New York City Asbestos Litigation docket filed their motion on March 31, asking NYCAL’s new chief judge Peter Moulton to impose a 60-day stay of all proceedings except for certain depositions and discovery in cases slotted on the court’s in extremis docket.

Plaintiffs with the most serious medical conditions have their cases placed on the in extremis docket.

The current CMO is 27 years old but has been amended several times.

“As originally drafted and intended, the CMO was a carefully negotiated balance of benefits through which the parties consented to the altering of certain rights and remedies under the (Civil Practice Law and Rules),” the defendants wrote in an accompanying memorandum.

“Twenty-seven years later, however, a combination of factors – dramatic changes to the litigation over nearly three decades, recent interpretation of the CMO, implementation of the CMO’s coordinating procedures, and certain systemic favoritism – have together resulted in a far more significant departure from the rights and remedies afforded to Defendants under the CPLR than the original defendants bargained for or reasonably could have anticipated.

“The time has come to right this imbalance.”

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.

Now, he must deal with the defendants’ allegations that they are being treated unfairly.

Those allegations are detailed in exhibits filed with the motion, including a summary 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 consolidate 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


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