throbber
FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
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`COURT OF THE STATE OF NEW YORK
`ALL COUNTIES WITHIN THE CITY OF NEW YORK
`■X
`
`IN RE: NEW YORK CITY
`ASBESTOS LITIGATION
`
`This Document Relates To;
`
`All Cases
`
`-X
`
`(cid:127)X
`
`New York City
`Asbestos Litigation
`(NYCAL)
`
`Index No.
`To Be Assigned
`
`I.
`
`Applicability of This Order
`
`This Case Management Order (“CMO”) applies to proceedings in asbestos personal
`
`injury and wrongful death cases now or hereafter assigned to the New York City Asbestos
`
`Litigation (“NYCAL”), except as otherwise directed by the Coordinating Judge of NYCAL
`
`upon motion. Upon its effective date this CMO supersedes all previous case management
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`orders and amendments thereto entered in NYCAL. The effective date of this CMO shall
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`be July 20, 2017.
`
`II.
`
`Objectives
`
`It is the objective of the Court to encourage and bring about the fair, expeditious,
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`and inexpensive resolution of these cases. To that end, this CMO directs the following:
`
`A.
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`The standardization of pleadings and discovery so that the parties can obtain the
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`necessary information to evaluate cases for settlement or to prepare them for trial at
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`minimum cost;
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`B.
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`The coordination of discovery,
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`the appointment of Liaison Counsel,
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`the
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`appointment and compensation of a Special Master, in order to avoid duplication,
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`contain costs, and expedite disposition via settlement or trial;
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`C.
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`The scheduling of early pretrial conferences to explore settlement opportunities, to
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`resolve pretrial management problems, and to establish discovery cut-off dates;
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`D.
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`The grouping, ordering and firm scheduling of cases for pretrial proceedings and
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`trial.
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`III.
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`Special Master
`
`A.
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`Special Master Term. The Coordinating Judge appoints, on consent of counsel,
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`Shelley Rossoff Olsen, Esq. to serve as Special Master. Her term will last for one
`
`year, until June 19, 2018. Thereafter the Special Master shall serve one year terms,
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`which will automatically be renewed unless 1) any Liaison Counsel (described in
`
`Section VIII below) objects by 60 days preceding the end of the Special Master’s
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`term, or 2) the Special Master is relieved of his or her duties on consent of all Liaison
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`Counsel, or 3) the Special Master is relieved of his or her duties for good cause
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`shown upon motion by any Liaison Counsel or upon the Court’s own motion, or 4)
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`the Special Master leaves of his or her own volition after giving not less than 60
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`days’ notice via email to the Coordinating Judge and Liaison Counsel.
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`If the
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`expiration date of the Special Master’s term falls on a weekend or holiday in a given
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`year, the term will extend to the next business day.
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`B.
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`Special Master Duties. The Special Master shall supervise compliance with
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`discovery, including, but not limited to, adequacy of the plaintiffs’ and defendants’
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`responses to standard interrogatories, production of documents, expert disclosure,
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`the conduct of depositions, and other discovery disputes that may arise. The Special
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`Master shall convene and conduct mandatory settlement conferences as necessary,
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`and shall have such other duties as specified by this CMO.
`
`C.
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`Resolution of Discovery Disputes. In the event of a discovery dispute the
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`requesting party shall notify the Special Master without delay and request
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`intervention. No motion to compel discovery shall be made without first seeking
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`the assistance of the Special Master. Any party objecting to a ruling by the Special
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`Master shall notify by email the Special Master and all other interested parties
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`within three business days of receiving the Special Master’s ruling. Upon receipt
`
`of this email, the Special Master shall promptly reduce the recommended ruling to
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`writing. The objecting party shall present its objections by order to show cause to
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`the Coordinating Judge within seven business days of receipt of the Special Master’s
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`written ruling, unless this time is extended by the Coordinating Judge or the Special
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`Master. In the absence of a motion by order to show cause to the Coordinating
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`Judge, the Special Master’s ruling will stand.
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`D.
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`Compensation. The parties agree that the Special Master shall be compensated at
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`the flat annual rate of $368,000. This fee is to be borne 50% by the plaintiffs and
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`50% by the defendants. The assessment and collection of the fee amounts from the
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`plaintiffs’ and defendants’ bars shall be the responsibility of Rossi, LLP, a financial
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`management company agreed to by the parties, and any successor financial
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`management company agreed to by the parties. The Special Master’s fee shall be
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`paid by Rossi, LLP on March 20, June 20, September 20, and December 20 or upon
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`the first business day after the relevant day. Plaintiffs and defendants shall each pay
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`50% of Rossi, LLP’s fee.
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`E.
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`Parties. On or before May 26 of each year, plaintiffs will submit to Rossi, LLP
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`allocations among plaintiffs for their share of the Special Master’s compensation
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`and Rossi, LLP’s fee, including names, addresses, and emails of all plaintiffs’
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`counsel. On or before May 26 of each year defendants shall submit to Rossi, LLP
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`information concerning all participating defendants in NYCAL, including names
`
`and addresses and emails of all such defendants’ counsel. For purposes of this
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`Section III of the CMO “participating” defendants shall be defined as all those
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`defendants who are included in the Accelerated Docket, as defined in Section XIV
`
`below, or in the Active Docket, as defined in Section XIV below. Lists of plaintiffs
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`and defendants given to Rossi, LLP shall be updated regularly by Liaison Counsel
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`to account for new litigants. Based on this information provided pursuant to this
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`paragraph, Rossi, LLP will promptly notify plaintiffs’ counsel and defendants’
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`counsel of the parties’ respective payments of their proportionate share of the
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`Special Master’s compensation and Rossi, LLP’s fee. Plaintiffs’ counsel shall be
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`responsible for full payment of their clients’ shares to Rossi, LLP on or before June
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`15 of each year. Defendants’ counsel shall be responsible for full payment of their
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`clients’ shares to Rossi, LLP on or before August 15 of each year. These amounts
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`may be recouped by plaintiffs’ and defendants’ counsel in the form of client
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`disbursements.
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`F.
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`Share Allocations of Fee. As the number of plaintiffs involved in the Accelerated
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`and Active Dockets is amenable to accurate calculation, each plaintiffs share of the
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`Special Master’s compensation and Rossi, LLP’s fee shall be calculated by
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`percentage allocation of the total plaintiffs’ share. As the number of defendants
`
`involved in the Accelerated and Active Dockets is difficult to anticipate, each
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`defendant’s allocation shall be calculated by Rossi, LLP, which allocation shall
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`include each defendant’s share of the Special Master’s compensation and Rossi,
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`LLP’s fee. Any excess amounts paid annually by either plaintiffs or defendants for
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`the Special Master’s compensation and Rossi, LLP’s fee shall be kept in separate
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`escrow accounts set up by Rossi, LLP for plaintiffs and defendants, respectively.
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`These amounts in escrow,
`
`if any, shall be applied to the following year’s
`
`compensation for the Special Master and fee for Rossi, LLP. The defendants’
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`annual set amount shall be reevaluated and adjusted each year, as necessary.
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`IV.
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`Venue
`
`All asbestos personal injury and wrongful death cases arising in New York, Queens,
`
`Kings, Bronx or Richmond Counties shall be filed in New York County.
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`Cases shall be tried in New York County except, upon the entry of the appropriate
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`Administrative Order, NYCAL cases ready for trial may also be assigned to one or more
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`trial parts in another county.
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
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`V.
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`Filing Procedures
`
`A.
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`Files. A master e-file, known as the NYCAL Master File, has been established in
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`the Office of the Clerk of New York County for all asbestos cases assigned to the
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`Coordinating Judge of NYCAL.
`
`Entries on the NYCAL Master File shall be
`
`applicable to each asbestos case assigned to the Coordinating Judge. The original
`
`of this Case Management Order shall be e-filed in the NYCAL Master File and shall
`
`be deemed part of the record of each action in NYCAL. A separate file shall also
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`be maintained under a separate index number for each individual action by the office
`
`of the Clerk of New York County.
`
`B.
`
`Captions of Cases. Any document e-filed in these coordinated actions that has
`
`general application to all cases shall bear a caption as follows:
`
`SUPREME COURT OF THE STATE OF NEW YORK
`ALL COUNTIES WITHIN THE CITY OF NEW YORK
`
`IN RE: NEW YORK CITY
`ABESTOS LITIGATION
`
`New York City
`Asbestos Litigation
`Index No._
`
`C.
`
`Filing of Papers.
`
`1. When a paper has general application to all cases, the caption shall bear an index
`
`number to be assigned and the parties shall e-file such paper in the NYCAL Master
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`File. Any document so e-filed shall be deemed to have been e-filed in each case to
`
`which this Case Management Order applies and shall constitute part of the record
`
`of such case.
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`2. When a paper is applicable only to an individual case, the attorney submitting
`
`such paper for e-filing shall supply a cover sheet containing the caption and index
`
`number to which the paper is applicable. The parties shall e-file such paper in the
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`file applicable to the individual case, and not in the NYCAL Master File.
`
`3. When a paper is applicable to two or more cases, the captions shall state the case
`
`names and index numbers of the actions to which the paper is applicable, and the
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`party shall e-filed the paper in each applicable case file.
`
`4. Upon establishment of the new Master e-file, the prior master file under index
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`number 40000/1988 will be closed to further filings.
`
`VI.
`
`Rules of Procedure
`
`The Civil Practice Law and Rules and the Local Rules of the Supreme Court of the
`
`State of New York, New York County, together with the express provisions of this CMO,
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`shall govern all proceedings herein. Where this CMO’s provisions differ from the CPLR’s,
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`the CMO shall control.
`
`VII. Pleadings
`
`A.
`
`Complaints. Plaintiffs’ counsel shall e-file in the NYCAL Master File a set of
`
`complaints containing standard allegations generally applicable to all claims of a
`
`similar nature. Thereafter, plaintiffs shall, to the maximum extent feasible, serve
`
`and e-file a short form complaint which incorporates by reference all allegations
`
`contained in the appropriate standard complaint. Plaintiffs Initial Fact Sheet
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`7
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
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`(“PIFS”), annexed hereto as Exhibit A, shall be included with the complaint or
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`served upon the defendants within sixty days after filing of the complaint. The PIFS
`
`shall be filed by the Clerk of New York County in the file of the individual action
`
`pending in New York County to which the PIFS applies. Multi-plaintiff complaints
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`are not permitted. PIFS will be used by the parties as they have been historically
`
`used in NYCAL. Complaints shall comport with the CPLR, with the following
`
`modifications. To the extent that the plaintiff wishes to be placed on the Accelerated
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`Docket, as defined in Section XIV, below, he or she must allege facts and include
`
`documentation of minimum criteria for placement on the Accelerated Docket, as set
`
`forth in Section XIV below. For placement on the Active Docket, as defined in
`
`Section XIV, below,
`
`the complaint must allege and include the requisite
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`documentation of minimum criteria for placement in the Active Docket as set forth
`
`in Section XIV below. Complaints shall be served as provided in the CPLR. No
`
`complaint shall be filed before plaintiffs counsel has applied for plaintiffs social
`
`security records from the Social Security Administration, or has provided an
`
`authorization to obtain plaintiffs social security records to a mutually agreeable
`
`record retrieval service, or can represent in good faith that there is an impediment
`
`to making such application. The complaint shall contain a paragraph setting forth
`
`the date of the application for social security records, or the date plaintiff provided
`
`an authorization to obtain plaintiffs social security records to a mutually agreeable
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`record retrieval service, or the impediment that prevents such application.
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`It is
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`presumed by the parties and the Court that in most cases a plaintiff will seek social
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`security records, or provide an authorization to a mutually agreeable record retrieval
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`service, before filing the complaint. Failure to comply with the requirements of
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`seeking social security records before filing the complaint, and for making the
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`requisite recitations regarding such records in the complaint, shall not provide
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`grounds to dismiss the complaint, but may expose counsel to sanctions.
`
`B.
`
`Amended Complaints. Any plaintiff may, without further leave of the Court,
`
`amend her complaint, subject to the limitations stated in this CMO. Where an
`
`amended complaint has been e-filed and served, a motion to substitute parties,
`
`pursuant to CPLR 1021, will be deemed to have been made and granted.
`
`If a
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`plaintiff in an Accelerated Trial Cluster, as defined in Section XIV below, amends
`
`his or her complaint to add an additional defendant(s) not related to an existing
`
`defendant during the sixty-day period before April 1 for the April Cluster and
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`October 1 for the October Cluster, at the request of any late-added defendant, the
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`plaintiffs action will be automatically removed from the cluster and shall be put
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`into the next succeeding Accelerated Trial Cluster, except for extraordinary cause
`
`shown by plaintiff and as approved by the Special Master. Automatic removal shall
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`not preclude application by defendants for any other relief to which they may be
`
`entitled for other reasons.
`
`C.
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`Pleading Punitive Damages. Pursuant to the court’s order dated June 20, 2017,
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`punitive damages are no longer deferred in NYCAL and may be sought, where there
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`is a good faith basis for doing so, against named defendant(s). Any prayer for
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`punitive damages in a complaint in an action on the Deferred Docket is stricken,
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`with leave to amend the complaint to include a prayer for punitive damages within
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`30 days of placement on either the Accelerated or Active Dockets, as defined in
`
`Section XIV below.
`
`In cases on the Active or Accelerated Dockets, where the
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`complaint already contains a prayer for punitive damages at the time that this Case
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`Management Order becomes effective, plaintiff shall consider whether it intends to
`
`seek punitive damages against a named defendant or defendants. Plaintiff and
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`defendants shall confer and where plaintiff agrees that it will not proceed with a
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`punitive damages claim against a given defendant plaintiff shall sign a stipulation
`
`dismissing the prayer for punitive damages pursuant to Section XXII.A of this
`
`CMO. Where an existing complaint does not contain a prayer for punitive damages,
`
`plaintiff may amend the complaint to include punitive damages, if he or she has a
`
`good faith reason for doing so, without leave up to ten days prior to the date of
`
`plaintiffs application to be included in an Accelerated or Active Cluster, as defined
`
`in Section XIV, below. After that time, but prior to the Trial Court setting a trial
`
`date, plaintiff may move before the Coordinating Judge to amend the complaint to
`
`include punitive damages.
`
`D.
`
`Answers. Defendants shall serve and e-file in the NYCAL Master File a standard
`
`answer with affirmative defenses. Once a defendant has e-filed a standard answer,
`
`a defendant may respond to any complaint served upon it with an acknowledgement
`
`of service, by which service defendant will have been deemed to have denied all
`
`material allegations contained in the complaint, except as stated in such
`
`acknowledgement, and to have raised each of the affirmative defenses contained in
`
`10
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
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`defendant’s standard answer, except as stated in such acknowledgement. If plaintiff
`
`files an amended complaint, all defendants who have previously filed a standard
`
`answer in the NYCAL Master File shall be deemed to have denied all material
`
`allegations in the amended complaint. All co-defendants to which any cross-claims
`
`may apply will be deemed to have denied all material allegations in such cross¬
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`claims. Nothing herein shall preclude a defendant from filing an individual answer
`
`if it so chooses.
`
`VIII. Liaison Counsel
`
`A.
`
`Role. Liaison Counsel act on behalf of the plaintiffs’ and defendants’ bars in
`
`NYCAL. They facilitate communication among the Court and counsel, minimize
`
`duplication of effort, coordinate joint positions, and assist in the efficient progress
`
`of this litigation.
`
`B.
`
`Responsibilities. Subject to the right of any party to present individual or divergent
`
`positions or take individual actions, Liaison Counsel are charged by the Court to
`
`work with the Court and the Special Master: 1) to ensure that NYCAL fairly,
`
`expeditiously and inexpensively resolves cases; 2) to suggest improvements to
`
`NYCAL; 3) to coordinate discovery, including the preparation and modification of
`
`form disclosure devices; 4) to call meetings of counsel in NYCAL for the purpose
`
`of coordinating responses to issues that have arisen in NYCAL; and 5) to assist the
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`Court in convening Town Hall meetings where all counsel are invited to meet with
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`the Coordinating Judge. Liaison Counsel are authorized to receive orders, notices,
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`ll
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
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`correspondence, email, and telephone calls from the Coordinating Judge and shall
`
`be responsible for disseminating communications received from the Coordinating
`
`Judge. Liaison counsel do not have the right to bind any party, except an individual
`
`Liaison Counsel’s own clients, as to any matter without the consent of counsel for
`
`the party in question.
`
`C.
`
`Number and Terms of Liaison Counsel. There shall be four plaintiffs’ Liaison
`
`Counsel and four defendants’ Liaison Counsel, chosen by plaintiffs’ and
`
`defendants’ bars by election, respectively. Liaison Counsel shall serve in staggered
`
`two year terms, so that two plaintiffs’ Liaison Counsel and two defendants’ Liaison
`
`Counsel shall be elected each year. There shall be no term limits on service of
`
`Liaison Counsel. To ensure continuity after the effective date of this CMO, and
`
`because of their lengthy and valuable service to the Court and extensive knowledge
`
`of the history of asbestos litigation, the existing Liaison Counsel, Charles Ferguson
`
`and Jordan Fox for the plaintiffs, and Robert Malaby and Judy Yavitz for the
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`defendants, will serve for an additional year, beginning on August 21, 2017. The
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`defendants’ and plaintiffs’ bars shall each elect two additional Liaison Counsel to
`
`begin serving a two-year term beginning on August 21, 2017.
`
`IX.
`
`Standard Consolidated Discovery
`
`A.
`
`Authorizations. At the time of the filing of the complaint, or as soon as practicable
`
`thereafter, plaintiff shall provide authorizations for medical, employment, disability,
`
`workers compensation, union, military, and tax records to defendants.
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`B.
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`Defendants’ Standard Interrogatories. Defendants have developed a standard joint
`
`set of interrogatories, which have been filed with the Court in the Master File. These
`
`interrogatories shall be deemed to apply to all cases, and need not be served on a
`
`plaintiffs counsel. Plaintiffs shall provide detailed verified answers to defendants’
`
`standard set of interrogatories pursuant to the CPLR. All questions must be fully and
`
`substantially answered, subject to section E, below. For example, an answer in
`
`response to a question seeking information about worksites must provide detailed
`
`information and not merely state “various jobsites in New York City.” After a plaintiff
`
`has answered the defendants’ standard joint set of interrogatories, any defendant may
`
`serve supplemental, non-repetitive interrogatories, upon good cause shown and the
`
`approval of the Special Master.
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`Plaintiff shall respond to any supplemental
`
`interrogatories in a given case within 60 days of service.
`
`C.
`
`Plaintiffs’ Standard Interrogatories. Plaintiffs have developed a standard set of
`
`interrogatories which have been filed with the Court in the Master File. These
`
`interrogatories shall be deemed to apply to all cases, and need not be served on
`
`defendants’ counsel where a defendant named in the complaint has already appeared
`
`in NYCAL. Each defendant shall file in the Master File a single set of responses to
`
`the plaintiffs interrogatories, which responses shall be applicable to all actions in
`
`NYCAL. Any defendant answering the interrogatories for the first time shall provide
`
`detailed verified answers to plaintiffs’ interrogatories within sixty days of the service
`
`of the complaint. All questions must be fully and substantially answered, subject to
`
`section E, below. If plaintiffs’ Liaison Counsel agree, defendants may designate and
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`serve interrogatories and their answers to such interrogatories which have been filed
`
`in other jurisdictions in lieu of
`
`responding to the relevant plaintiffs’ set of
`
`interrogatories in NYCAL. After a defendant has answered the plaintiffs’ applicable
`
`standard set of interrogatories, a plaintiff may serve supplemental, non-repetitive
`
`interrogatories upon good cause shown and approval of the Special Master. A
`
`defendant shall respond to any supplemental interrogatories per the CPLR. The
`
`Special Master may extend the time to answer for good cause shown.
`
`D.
`
`Product Identification Interrogatories.
`
`Plaintiffs may serve on individual
`
`defendants standard product identification interrogatories with respect to particular
`
`worksites.
`
`Defendants
`
`shall
`
`respond to plaintiffs product
`
`identification
`
`interrogatories per the CPLR. The Special Master may extend the time to answer for
`
`good cause shown. A defendant’s objections to any such interrogatories shall be
`
`brought before the Special Master pursuant to Section III.C.
`
`E.
`
`Interrogatory Answers. All
`
`interrogatories should be fully and substantially
`
`answered, though well-taken objections may be raised with the Special Master
`
`pursuant to Section III.C. All answers shall be verified by a party. If a party fails to
`
`provide substantially complete answers to standard interrogatories, the opposing party
`
`shall forthwith notify the Special Master pursuant to Section III.C. Absent good cause,
`
`a party’s failure to timely and substantially respond to standard interrogatories, and to
`
`product identification interrogatories if applicable, within the time frames provided
`
`herein shall result in postponement of the deposition of that party upon application to
`
`the Special Master.
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`14
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
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`RECEIVED NYSCEF: 10/17/2017
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`F.
`
`Document Requests, General Guidelines. Document discovery may proceed by
`
`inspection upon consent of the parties. Where document discovery proceeds by
`
`inspection, the requesting party shall specify a reasonable time, place and manner for
`
`making the inspection.
`
`G.
`
`Defendants’ Requests for Documents. Counsel for defendants have developed a
`
`standard document request that is filed in the NYCAL Master File and deemed to apply
`
`to all cases without the necessity of service on individual plaintiffs. Plaintiffs shall
`
`serve responses to defendants’ document request per the CPLR, unless otherwise
`
`provided in the CMO or order of the Special Master or the Court.
`
`If any of the
`
`requested documents are not within a plaintiffs possession, custody or control,
`
`plaintiff shall provide a mutually agreeable records retrieval service with the necessary
`
`authorizations to obtain such records from other persons, the costs of which shall be
`
`borne by each party receiving a copy of such records. After plaintiff responds to the
`
`standard set of document requests, defendant may serve supplemental, non-repetitive,
`
`document requests, upon good cause shown and approval of the Special Master.
`
`Plaintiff shall respond to any supplemental document request in a given case within 60
`
`days of service of the request. All document production shall be in such form as will
`
`make clear which documents are responsive to which request.
`
`H.
`
`Plaintiffs’ Requests for Documents. Plaintiffs have developed a standard document
`
`request. The standard document request is filed in the NYCAL Master File. To the
`
`extent not previously done, each defendant shall respond to plaintiffs document
`
`request per the CPLR, unless otherwise provided by this CMO or order of the Special
`
`15
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
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`Master or the Court. If the production is to go forward after inspection, the plaintiff
`
`shall specify a reasonable time, place and manner for the inspection. After a defendant
`
`responds to the standard set of document requests, plaintiff may serve supplemental,
`
`non-repetitive document requests, upon good cause shown and approval of the Special
`
`Master. Defendant shall respond to any supplemental document request in a given
`
`case within 60 days of service of the request. All document production shall be in
`
`such form as will make clear which documents are responsive to which request.
`
`I.
`
`Business Records. There shall be a presumption of admissibility at trial for all
`
`documents provided in response to requests for business records, unless the response
`
`specifically states that the document is not admissible under CPLR 4518. Any such
`
`response shall specify why the document is not admissible.
`
`J.
`
`Burdensomeness. Objections to discovery based on burdensomeness shall describe
`
`the burden with reasonable particularity. Any objection to the time, place or manner
`
`of production, or as to burdensomeness, shall state a reasonably available alternative
`
`as a counterproposal.
`
`K.
`
`Unavailable Documents or Information. Any response that a requested document
`
`cannot be located, or an interrogatory answer cannot be answered in full, shall state
`
`with reasonable particularity the efforts made to obtain the unavailable document or
`
`information.
`
`L.
`
`Additional Discovery. Any party seeking to propound discovery on a party in a given
`
`case other than that provided herein may do so only upon application to the Special
`
`Master or by stipulation with opposing counsel.
`
`16
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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
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`M.
`
`Discovery Concerning Punitive Damages. Where plaintiff asserts a punitive
`
`damages claim against a defendant, plaintiff shall answer defendants’ standard
`
`interrogatories and document requests seeking information related to punitive damages
`
`per the CPLR, and defendant shall answer plaintiffs’ standard interrogatories and
`
`document requests seeking information related to punitive damages per the CPLR.
`
`The parties shall confer about the possibility of a stipulation dismissing the prayer for
`
`punitive damages as set forth in Section VII.C before responding to standard
`
`interrogatories and document requests seeking information concerning punitive
`
`damages.
`
`N.
`
`Pathology/Radiology Materials/Medical Defense Liaison. Defendants shall appoint
`
`a Medical Defense Liaison Law Firm or Firms, which shall be named on the NYCAL
`
`website. Plaintiffs shall produce to Defense Medical Liaison pursuant to the discovery
`
`order set by the Special Master all pathology and radiology materials received,
`
`prepared, procured, and/or relied upon by plaintiff that are in plaintiffs possession.
`
`These materials shall include, but are not limited to: x-rays, PET scans, CAT scans,
`
`MRIs, radiological and/or sonographic studies, pathology blocks, tissues and slides of
`
`any kind. In addition, plaintiffs’ counsel shall provide authorizations to defendants to
`
`obtain the materials specified in this paragraph. Disputes concerning authorizations
`
`shall be submitted to the Special Master. If a facility or physician requires a subpoena
`
`for such materials, counsel for the party seeking such materials shall prepare a Judicial
`
`Subpoena for the Coordinating Judge upon notice to all parties.
`
`17
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`

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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
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`O.
`
`Post-Note Discovery. Where necessary, discovery shall continue after the filing of a
`
`note of issue pursuant to the Uniform Rules for the New York State Trial Courts §
`
`202.21(d) upon directive of the Court or the Special Master. Except as set forth in
`
`Section XI.D below, or upon consent of the parties, absent extraordinary circumstances
`
`no further discovery shall be allowed ten days before a firm date to select a jury in a
`
`trial-ready case.
`
`P.
`
`Previously Produced Documents. Upon notice of the time and place of the previous
`
`production any document previously produced to a plaintiffs firm by a party or its
`
`predecessor or successor in interest in any other asbestos personal injury or wrongful
`
`death action shall be deemed produced in all cases in NYCAL. Any representation
`
`made by any defendant with respect to such previously produced document(s) shall be
`
`deemed made in all cases in NYCAL. This paragraph does not address the ultimate
`
`issue of the admissibility of any such previously produced document at trial.
`
`Q.
`
`Discovery Disputes. Discovery disputes shall be brought to the immediate attention
`
`of the Special Master for resolution, and shall not be the basis for any non-adherence
`
`to the discovery timelines set forth herein or by the Special Master, unless allowed by
`
`the Special Master. Objections based on privilege shall conform with the requirements
`
`of CPLR 3122(b). If not so identified, the privilege is deemed waived. Where
`
`necessary,
`
`the parties shall negotiate a confidentiality order
`
`to preserve the
`
`confidentiality of trade secrets. Any appeal of the Special Master’s resolution of the
`
`dispute shall be made pursuant to Section III.C of this CMO.
`
`18
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`

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`FILED: NEW YORK COUNTY CLERK 10/17/2017 04:34 PM
`NYSCEF DOC. NO. 239
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`INDEX NO. 190101/2017
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`RECEIVED NYSCEF: 10/17/2017
`
`X. Medical Examinations of Plaintiffs
`
`Defendants shall have the opportunity to a single independent medical examination
`
`(“IME”) of the plaintiff in accordance with CPLR 3121 and in accordance with the
`
`discovery orders described in Sections XV and XVI, below. A report of the medical
`
`examination, and copies of all tests, shall be provided to all parties in accordance with the
`
`discovery order set forth by the Special Master. Any plaintiff not made available on
`
`reasonable notice for independent medical examination at least two weeks prior to the
`
`discovery order deadline set by the Special Master for defendants’ production of expert
`
`witness reports will be removed from a Trial Cluster, as that term is used in Sections XV
`
`and XVI below. Any dispute concerning an IME shall be referred to the Special Master.
`
`Any appeal of the Special Master’s resolution of the dispute shall be made pursuant to
`
`Section III.C of this CMO.
`
`XI. Depositions
`
`A.
`
`General Guidelines. All depositions shall be taken in accordance w

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