NEW YORK (Legal Newsline) – A staggering amount of money is at stake as New York’s top court is asked to decide if New York City’s controversial asbestos court is treating defendants fairly.
Recently, the New York Court of Appeals – the state’s highest court – declined to hear the appeal of asbestos defendants challenging a judicial order that exposes them to punitive damages.
How costly could that order be? Well, in at least one case out of hundreds still pending, lawyers at Weitz & Luxenberg are seeking $50 million in punitive damages.
The request came in Thomas Scott’s lawsuit filed last year, just before Justice Peter Moulton granted plaintiffs attorneys’ request to reintroduce punitive damages in New York City Asbestos Litigation cases.
This April, a NYCAL jury awarded $60 million, including punitive damages, to the family of a man who died from mesothelioma, holding A.O. Smith, Burnham LLC and Peerless Industries liable.
Combined with the practice of consolidating lawsuits for trial, defendants claim they are placed at a disadvantage and want the Court of Appeals to hear their pleas.
But whether the court will remains unknown. Companies can argue their constitutional rights are being violated while defending themselves, but the Court of Appeals is initially unconvinced.
A defendant can also wait to appeal an actual verdict that features punitive damages.
An intermediate appellate court affirmed the new case management order in March.
In briefs submitted to that court, defendants said their ability to fight claims all the way through trial is hampered in two major ways: An Accelerated Docket that leaves them only five months to conduct their investigations and prepare for trial and a threat of punitive damages that makes simply going to trial a multimillion-dollar gamble.
Plaintiffs argue that a court supervising a complex litigation has the authority to amend case management provisions – even when a unanimous consensus can’t be reached.
Scott sued dozens of companies, including some, like Crane Co. and Honeywell, that take up the cause of developing asbestos defenses against the latest theories of liability pushed by asbestos plaintiffs lawyers.
Scott’s complaint says he worked as a seaman on many ships during his long career. On those ships, he was exposed to asbestos that caused his lung cancer, he says.
Lung cancer claims are usually worth less than mesothelioma claims, but that didn’t stop Scott’s lawyers from asking for $50 million.
Judging by his deposition, companies are planning a defense that includes a mention of Scott’s pack-a-day cigarette habit that started when he was a teenager and lasted about 40 years. Many companies have filed for summary judgment, arguing he never mentioned their products during that deposition.
Should one company press its luck and try for a jury verdict rather than settle, it currently runs the risk of a giant verdict featuring punitive damages. The use of punitive damages has been criticized as unnecessary in asbestos lawsuits, as the main offenders (and dozens of others) have already been forced into the bankruptcy system by the liabilities they faced from claimants.
Also, punitive damages are often hailed for deterring companies from continuing their shady behavior, but asbestos is already outlawed.