throbber
FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
`
`INDEX NO. 190253/2015
`
`RECEIVED NYSCEF: 04/20/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`
` --------------------------------------------------------------------- X
`In Re: NEW YORK CITY ASBESTOS LITIGATION
`:
` --------------------------------------------------------------------- X
`
`
` NYCAL
`This Document Relates to:
`
`
` (MENDEZ, J.)
`
`
`RICHARD AQUITATO, As Executor For The Estate Of
` Index No. 190253/15
`SALVATORE AQUITATO, And JOHN AQUITATO,
`
`Individually, et. al.
`
`
`
`AFFIRMATION IN OPPOSITION
`TO PLAINTIFFS’ MOTION FOR
`A JOINT TRIAL
`
`
`
`
`::::::::::::::::
`
`
`-- against –
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`AMCHEM, et al.,
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`Plaintiffs,
`
`
`Defendants.
`
`
` --------------------------------------------------------------------- X
`
`
`
`Stephen Novakidis, an attorney duly admitted to practice law before the Courts of the
`
`State of New York, affirms the following to be true under the penalty of perjury:
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`
`
`1.
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`I am a member of the law firm of Malaby & Bradley, LLC, attorneys for several
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`defendants in these cases1. This opposition is also being served on behalf of all other remaining
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`defendants (collectively “Defendants”) in the below twenty-two (22) cases.
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`
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`2.
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`I have prepared this Affirmation upon information and belief, based upon the files
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`for these matter maintained by this office, which I believe to be true and accurate.
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`
`
`3.
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`I respectfully submit this Affirmation, on behalf of Defendants in Opposition to
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`Plaintiffs’ Motion for a Joint Trial of the following twenty-two, in various groupings, unrelated
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`cases2.
`
`
`1 Malaby & Bradley represent the following defendants in this group of cases: Crown Boiler, Roper Pump,
`Blackmer Pump, Hyster, Sears, Qualitex, Dean Pump, and Superior Boiler Works.
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`1 of 39
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`1. SALVATORE AQUITATO (dec)
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`2. JAMES BISSONETTE (dec)
`
`
`3. ROGER CARILLI
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`
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`4. SPYRANGELOS DEBONERAS (dec)
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`5. ERNEST DECURTIS (dec)
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`6. RICHARD EBANKS (dec)
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`7. BERT FORMANSKI (dec)
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`8. THOMAS GALLEN
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`
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`9. WAYNE GIBSON (dec)
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`
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` 10. ERNEST GILBERT
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` 11. CYRIL GREENE (dec)
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` 12. WILLIAM HEUER (dec)
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` 13. ELSA MARTINEZ (dec)
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` 14. KARL MOELLER (dec)
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` 15. DOMINICK PERILLO (dec)
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` 16. LEON POGACNIK
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`
` 17. JEROME RALLO
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` 18. DANTE RICCOBONI (dec)
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` 19. ROGER SAHM (dec)
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` 20. DAWN SCOTT (dec)
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` 21. JOANNE SIMONS
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` 22. ROBERT WISSE
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`Index No. 190253/15
`Index No. 190321/15
`Index No. 190252/15
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`Index No. 190251/15
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`Index No. 190343/15
`Index No. 190187/15
`Index No. 190198/15
`Index No. 190204/15
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`Index No. 190313/15
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`4.
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`Plaintiffs seek to join the above cases into the following seven (7) groups:
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`Group 1: Carilli, Decurtis (dec), Gallen, Gilbert, Riccoboni (dec), Sahm (dec)
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`Group 2: Martinez (dec), Scott (dec), Simons
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`Group 3: Bissonette (dec), Deboneras (dec), Ebanks (dec), Formanski (dec),
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`Gibson (dec), Heuer (dec), Moeller (dec)
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`Group 4: Greene (dec), Rallo
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`Group 5: Perillo (dec), Wisse
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`Group 6: Pogacnik
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`Group 7: Aquitato (dec)
`
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`2 It is Defendants position that the First Department’s decision setting aside punitive damages until such time as
`proper procedures for their utilization can be created is still in place and that punitive damages will not be sought in
`these cases. Should this Court decide otherwise, Defendants would seek leave to brief that issue.
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`I.
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`CONSOLIDATION IN THE NEW YORK CITY ASBESTOS LITIGATION
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`5.
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`In the New York City Asbestos Litigation (“NYCAL”) consolidation of asbestos
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`cases has, quite unfortunately, become all too common. Plaintiffs and courts alike typically cite
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`to conservation of judicial resources, the large caseload of asbestos matters, litigation costs, etc.
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`as reasons for the necessity of consolidation. With consolidation comes jury selection that takes
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`weeks, trials that take months and verdicts that reach eight or even nine figures (almost none of
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`which are actually sustainable) have also become standard. It is important to narrow the issue, it
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`is not Defendants’ position that this Court cannot consolidate cases for joint trial, the law, and
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`the appellate courts have made it clear that this Court can consolidate cases. The issue is should
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`this Court consolidate these cases? It is Defendants’ position that a close examination of the
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`facts and circumstances surrounding these cases leads to the conclusion that this Court ought not
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`grant plaintiff’s motion.
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`6.
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`There are countless examples of consolidated trial groups that include weeks-long
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`jury selections, that are begun with over a dozen defendants, and that involve asking jurors to sit
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`for months on end. Every Judge that presides over asbestos cases in New York City has had this
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`traveling circus in their courtroom. Every Court has dealt with long and drawn out trials, many
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`of which end up in absurdly high verdicts that judges then, almost universally, must spend their
`
`time on post-trial motion practice and lengthy remittitur. Since 2011 there have been
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`approximately twenty-nine (29) asbestos verdicts in New York City. The last six (6) years has
`
`seen an increase in the amount of cases reaching verdict. While there are many reasons for this
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`increase, the courts, and the parties involved must reevaluate the process under which these trials
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`are taking place.
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`7.
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`Time and again Plaintiffs argue that Defense concerns are overstated, that the
`
`issues Defendants raise as to the prejudice inherent in consolidation are simply not there.
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`Plaintiffs typically argue the likelihood that all defendants will settle. They argue the unlikely
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`nature of the trial actually getting underway, never mind reaching a verdict. They argue that
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`defendants overestimate how long the process would take, etc. They argue that occasionally a
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`consolidated trial ends in a verdict that is “reasonable” and that occasionally a single plaintiff
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`trial ends in a very large verdict. Plaintiffs are occasionally right. However, as the empirical
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`data shows below, on the whole, in more cases than not, consolidated trials lead to more plaintiff
`
`verdicts, and larger verdicts, than single plaintiff trials. These realities are, at this point, self-
`
`evident. Does it happen every time? No. Is a 100% prejudice threshold what Defendants must
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`prove to avoid consolidation? Clearly, the answer to that ought to be “no.” On the whole,
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`consolidated trials, clearly, and empirically, favor plaintiffs and prejudice Defendants to an
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`alarming degree.
`
`8.
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`In New York City, recent history has proven a fairly clear and direct correlation
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`between the length of the trial, the number of cases consolidated and the size and manner of the
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`verdict. It is Defendants’ position that the reasons for this correlation are myriad, no one issue
`
`alone creating the disparity. Each of the issues addressed in this paper work together to create an
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`undeniable prejudice to Defendants that has resulted in some of the largest asbestos verdicts in
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`the country. While a single plaintiff trial does not guarantee a defense verdict, nor is any
`
`defendant seeking any such guarantee, history has shown, with very few exceptions, a
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`consolidated trial all but ensures a plaintiffs verdict, and typically at absurdly high values.
`
`9.
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`When courts consolidate multiple cases for trial one of the first issues encountered
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`is the potential length of the consolidated trial. The adverse effect on the potential jury pool that
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`occurs when those potential jurors are advised that a trial may take up to three (3) months (as
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`they were told in Assenzio and Bryant), or eight (8) weeks (as they were told in Dummitt),
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`versus one (1) to two (2) weeks (as they were told in Curry, Dietz, Zaug and Benton), is clear,
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`obvious and devastating. Common sense, and firsthand experience, has proven that when a pool
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`of potential jurors is advised that a trial may take up to three months (as opposed to two weeks)
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`there is a thinning of that pool that is stark. A potential juror with a high degree of responsibility
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`at work is lost. A potential juror attending college or graduate school is lost. Even an
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`unemployed juror will be lost due to their inability to conduct a job search.
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`10.
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`To be clear, even if a consolidated trial group ends up, through settlements or
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`other resolution, with just a single plaintiff, the damage has already been done. The moment the
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`first jury pool is advised that a trial might take eight/ten/fourteen weeks that pool is tainted and
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`the hope of a fair cross section of jurors is lost. A juror lost on day one of a two week selection
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`process, because she could not sit for three months, is lost for good. There is no bringing her
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`back once the case is whittled down to just one plaintiff. The goal of the process, which is
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`clearly frustrated under the current system, should be a jury that is truly representative of the
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`entire population of the County of New York from the unemployed to corporate Chief Executive
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`Officers.
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`Fig. 1.
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`Case
`
`Nemeth
`
`Robaey
`
`Castorina
`
`Number Of Cases
`Originally
`Consolidated
`
`One (1)
`
`One (1)
`
`One (1)
`
`Length Of Trial
`
`Result
`
`Six (6) Weeks
`
`$16.5 Million
`
`Six (6) Weeks
`
`$75 Million
`
`Eight (8) Weeks
`
`Defense Verdict
`
`
`
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`5
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
`
`Cooney
`
`Zammit
`
`Gondar
`
`Geritano
`
`Bartolone
`
`Robusto
`
`Miller
`
`Hillyer
`
`North
`
`Hackshaw/Sweberg
`
`Juni
`
`Carlucci
`
`Three (3)
`
`One (1)
`
`Two (2)
`
`Three (3)
`
`One (1)
`
`One (1)
`
`One (1)
`
`Two (2)
`
`One (1)
`
`Four (4)
`
`Three (3)
`
`Three (3)
`
`Seven (7) Weeks
`
`$12 Million
`
`Four (4) Weeks
`
`Defense Verdict
`
`Eight (8) Weeks
`
`$22 Million
`
`Seven (7) Weeks
`
`$6.2 Million
`
`Five (5) Weeks
`
`Defense Verdict
`
`Five (5) Weeks
`
`$7 Million
`
`Three (3) Weeks
`
`$25 Million
`
`Four (4) Weeks
`
`$20 Million
`
`Three (3) Weeks
`
`$7 Million
`
`Seven (7) Weeks
`
`$25 Million Total
`
`Eleven (11) Weeks
`
`$11 Million
`
`Eight (8) Weeks
`
`$7.3 Million
`
`Brown/McCloskey/Terry Three (3)
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`Eighteen (18) Weeks $12.5 Million Total
`
`Derogatis
`
`Thibodeau
`
`One (1) case
`
`Three (3) Weeks
`
`Defense Verdict
`
`One (1) case
`
`Five (5) Weeks
`
`Defense Verdict
`
`Assenzio, et. al.
`
`Five (5) cases
`
`Eleven (11) Weeks
`
`$190 Million Total
`
`Vega
`
`Peraica
`
`One (1) case
`
`Two (2) Weeks
`
`Defense Verdict
`
`Nine (9) cases
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`Thirteen (13) Weeks
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`$35 Million
`
`McCormick
`
`One (1) case
`
`One (1) Week
`
`$3.8 Million
`
`Dummitt/Konstantin
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`Seven (7) cases
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`Eight (8) Weeks
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`$51 Million Total
`
`Paolini/Michalski
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`Six (6) cases
`
`Five (5) Weeks
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`Defense Verdict
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`Zaug
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`Dietz
`
`One (1) case
`
`Two (2) Weeks
`
`Defense Verdict
`
`One (1) case
`
`Two (2) Weeks
`
`Defense Verdict
`
`McCarthy/Koczur
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`Six (6) cases
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`Five (5) Weeks
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`$22.1 Million Total
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`
`
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`6
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`Curry
`
`Benton
`
`
`
`One (1) case
`
`One (1) Week
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`Defense Verdict
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`One (1) case
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`One (1) Week
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`$2.5 Million
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`11.
`
`As set forth in Fig. 1 above, there have been twenty-nine (29) asbestos verdicts3 in
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`New York City since 2011. Of those 29 verdicts, sixteen (16) have taken place in single plaintiff
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`cases (as opposed to a consolidated trial) and in those sixteen single plaintiff trials, nine (9) have
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`resulted in defense verdicts. Again, it bears repeating, nine of sixteen single plaintiff trials have
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`resulted in defense verdicts. Only one of thirteen consolidated trials ended in a total defense
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`verdict. In the seven single plaintiff cases that did not result in defense verdicts, the majority of
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`the cases had total awards of $7 million dollars, or less, with two of those being under $4
`
`million dollars, with set-offs reducing the amounts even further. To be fair, the single plaintiff
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`trials also included the recent $75 million dollar verdict before Judge Madden, which, of course,
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`is wholly unsustainable and will likely be reduced by 80%-90% after what is likely to be years of
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`post-verdict motions.
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`12. What is important is that the Robaey ($75 Million) verdict is a complete outlier
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`for single plaintiff verdicts. Much more common is the unsustainably high verdicts common to
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`consolidated trials, such as the seven week Hackshaw/Sweberg trial with verdicts totaling $25
`
`million; the eight-week Dummitt/Konstantin trial with verdicts totaling $51 million dollars; the
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`Assenzio, et. al., trial group with verdicts totaling $190 million dollars; the eight week Gondar
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`trial with a $22 million dollar verdict; or even the Brown trial group which resulted in “only”
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`$12.5 million in total verdicts. Since 2011, there have been more than $500 million dollars
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`awarded by juries in New York City asbestos trials.
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`3 In the case of a consolidated group of cases, a single verdict is being counted. For example, the Dummitt case had
`a $32 Million dollar verdict and the Konstantin case had a $19 Million dollar verdict, for a total of $51 Million. But
`it was a single jury that came to both verdicts.
`
`
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`7
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`13.
`
`Since 2011, the average Plaintiff’s jury verdict in a single plaintiff case, assuming
`
`the plaintiff wins, is $8.4 Million4. As we know, more than half (9 of 15) of single plaintiff
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`verdicts end in defense verdicts. The average consolidated trial verdict, for the group, is $31.8
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`Million. Broken down further to take into account the average verdict per plaintiff in a
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`consolidated group, it is $18 Million. With only one of thirteen such trials ending in a defense
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`verdict. Again, while a one-plaintiff trial does not guarantee a defense verdict, nor should it, a
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`consolidated trial all but ensures an enormous, generally unsustainable, plaintiffs verdict.
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`14.
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`Plaintiffs have argued that the numbers cited in Defense briefs are misleading or
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`fail to show the whole picture as it relates to verdict sizes in consolidated trials. Looking at the
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`numbers in a slightly different way, we are left, yet again, with clear and unequivocal results.
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`Figure 25, below, breaks down the various verdicts even further to compare the average “pain &
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`suffering” awards on a per month basis. Again, the numbers are stark with consolidated verdicts
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`returning “past pain & suffering” awards nearly double than those in a single plaintiff trial. The
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`numbers also reflect that “future pain & suffering” awards in consolidated trials are
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`approximately three times higher than single plaintiff awards.
`
`Fig. 2.
`
`
`
`Consolidated Trials
`
`Single Plaintiff Trials
`
`Average Past P&S
`
`$810K Per Month
`(18.9 Month Average)
`
`$441K Per Month
`(26 Month Average)
`
`Average Future P&S
`
`$2.49 Million Per Month
`(14 Month Average)
`
`$792K Per Month
`(12 Month Average)
`
`
`
`4 It should be noted that all of the verdicts are public record and the data used herein can be gleaned from verdict
`sheets, court orders, etc. This figure also counts the nine (9) defense verdicts as “zero.”
`5 The numbers reflected in figure 2 are as a result of twenty-one (21) individual plaintiff awards in consolidated
`trials, and seven (7) individual plaintiff awards in single plaintiff trials. Defense verdicts, which by their very nature
`are “zeros”, were not counted in calculations for this chart but would obviously make the numbers even more
`disparate.
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`
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`15.
`
`Since 2011, and taking into account twenty-nine (29) trials in the NYCAL, juries
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`have returned awards relating to “past pain & suffering” and “future pain & suffering” nearly
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`significantly higher in consolidated trials than in single plaintiff trials. When comparing apples
`
`to apples, what we see is that juries, for whatever reason, tend to view the suffering a plaintiff
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`has experienced as “worse” or more “valuable” in the context of a consolidated trial. Whether
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`the reason is the types of jurors we see in months long consolidated trials, or the cumulative
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`effect of hearing and seeing the impact of multiple plaintiffs, what is clear, are the numbers.
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`Defendants should not have to bear the burden of these higher awards, regardless of what the
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`specific cause of the higher awards is. Again, Defendants have demonstrated the drastic
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`difference in award amounts and the inherent prejudice in consolidated trials.
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`16.
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`It should be noted that the overwhelming majority of the consolidated verdicts,
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`particularly those that lend themselves to “sticker shock” reactions, are simply not sustainable,
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`even in New York City. The most recent verdict in the Robaey matter will, no doubt, end up
`
`being similarly eviscerated by the appellate courts. Using an illustration of a group that went
`
`through the process of post-trial motions, the “Assenzio Trial Group” which consisted of five (5)
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`plaintiffs and was tried against several defendants before Judge Madden, resulted in a total
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`verdict for the group of $190 Million dollars. Ultimately, Judge Madden remitted the amounts6
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`as follows:
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`
`
`
`
`
`
`6 For the purposes of the chart, two loss of consortium awards (Assenzio/Levy) are not being considered. In both
`cases, the jury awarded $10 million in loss of consortium and Judge Madden remitted each. Judge Madden
`ultimately remitted the loss of consortium claim in Assenzio to $500K and Levy to $650K.
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`Fig. 3.
`
`Plaintiff
`
`Pain &
`Suffering
`
`Jury Award
`
`Jury Average
`Per Month
`
`Remitted
`Award
`
`Assenzio 20 months $20 Million
`
`$1 Million
`
`$5.5 Million
`
`Remitted
`Average
`Per
`Month
`$275K
`
`Brunck
`
`8 months
`
`$20 Million
`
`$2.5 Million
`
`$3.2 Million
`
`$400K
`
`Levy
`
`18 months
`
`$15 Million (past)
`
`$833K
`
`$4 Million
`
`$222K
`
`24 months
`
`$35 Million (future)
`
`$1.5 Million
`
`$3.5 Million
`
`$146K
`
`Serna
`
`18 months
`
`$30 Million
`
`$1.7 Million
`
`$4.5 Million
`
`$250K
`
`18 months
`
`$30 Million
`
`$1.7 Million
`
`$3 Million
`
`$167K
`
`Vincent
`
`18 months $20 Million
`
`$1.1 Million
`
`$5 Million
`
`$277K
`
`
`
`17. While the above chart illustrates an almost complete disconnect between verdicts
`
`returned by jurors in New York City with what the courts have determined is sustainable, it also
`
`creates an incentive in trying certain types of cases. Cases with a large amount of viable shares
`
`(and presumably a large amount collected in settlements) afford the benefit of “set-offs” being
`
`credited to those last few defendants. For example, while the jury returned a verdict of $20
`
`Million dollars in the Brunck case (above); after it was remitted down to $3.2 Million it was
`
`determined that the Plaintiff had already collected more than that amount, which, less the cost of
`
`the trial, left the last remaining defendant owing nothing. Likewise, in the Hackshaw case, the
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`jury returned an unsustainable verdict of $10 Million dollars, which the Appellate Division, after
`
`years of briefing, argument, etc. reduced to $3 Million, a number that Plaintiff almost certainly
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`had exceeded in settlements before the trial even began. Therefore, it can be argued that these
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
`NYSCEF DOC. NO. 42
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`INDEX NO. 190253/2015
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`RECEIVED NYSCEF: 04/20/2017
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`consolidations, with their enormous and unsustainable verdicts actually create an incentive for
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`more trials, not less.
`
`18.
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`The judges who grant consolidated trials, and then preside over these trials, have,
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`implicitly, acknowledged the absurdity of verdicts returned by jurors in consolidated trials and
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`agreed, through remittitur, that they are almost universally unreasonable. In the
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`Hackshaw/Sweberg consolidated trial, the jury returned a collective verdict of $25 Million
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`dollars. This Court determined that the jury’s verdict was unreasonably high, resulting in a
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`remitted verdict of $16 Million dollars. The Appellate division stepped in and cut that number
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`even further, to a total of $12.5 Million dollars. In the Hillyer case, this Court again agreed that
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`the jury’s verdict of $20 Million dollars was entirely unreasonable and remitted it down to $6
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`Million dollars. Judge Madden’s remittitur of the Assenzio trial group is detailed above, and,
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`cannot be read as anything less than a repudiation of the jury’s verdict.
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`19.
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`The Appellate Division of the First Department has provided some level of
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`guidance regarding sustainable values of verdicts. In 2011, the Dummitt/Konstantin
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`consolidated trial7 resulted in total verdicts of $32 Million for Mr. Dummitt and $19.5 Million
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`for Mr. Konstantin. In the Dummitt case, the jury awarded $16 Million for past pain & suffering
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`(27 months), for an average of $593K per month. The jury also awarded $16 Million for future
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`pain & suffering (6 months), for an average of $2.7 Million per month. The appellate division
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`returned $5.5 Million for past pain & suffering for an average of $204K per month; and $2.5
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`Million for future pain & suffering for an average of $417K per month. While these remitted
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`totals from the appellate division remain distressingly high, they are far lower than the verdicts
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`returned by the jury in that consolidated trial group. In the past several months, the Appellate
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`7 It should be noted that while the issue of consolidation was part of the appellate process, the Court of Appeals
`ultimately determined that the issue of consolidation of the Dummitt/Konstantin cases for joint trial was not properly
`preserved, and therefore not reviewable.
`
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
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`RECEIVED NYSCEF: 04/20/2017
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`Division returned decisions in the Peraica, Hackshaw & Sweberg cases, all of which had verdicts
`
`that were further remitted by the Appellate Division, despite the trial courts having remitted the
`
`jury verdict following trial. These decisions came down several years after each case was tried,
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`again, all of this time should factor into the “efficiency” argument Plaintiffs put forth. The
`
`Appellate Division left little doubt what a “sustainable” amount is, per month, for an award.
`
`20. While Plaintiff’s counsel, and the courts, often cite to “efficiency” as the main
`
`driving force in consolidation of asbestos cases, it has become clear that “efficiency” is hardly
`
`what the NYCAL currently has. What has happened, time and again in consolidated cases, is a
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`drawn out jury trial, ending in an unsustainably large verdict, followed by a drawn out process
`
`whereby the judges determine what they believe to be a fair verdict. It is hard to see how either
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`party’s due process rights are being protected in this scenario. With large, unsustainable verdicts
`
`being the norm in consolidated trials and with nearly all of them needing to be remitted
`
`substantially, the disconnect between the jury’s findings and what is deemed “reasonable” by the
`
`courts calls into question other aspects of the jury’s findings. If we cannot trust jurors to give
`
`“reality-based” awards in consolidated trials, do we trust that they are even following the facts of
`
`the case? The opportunity for prejudice is clear and undeniable.
`
`21.
`
`It is surprising, and unfortunate, that Plaintiffs, in this request, appear to be trying
`
`to take the Court back to a time when consolidations were granted in larger groupings. Plaintiffs
`
`have requested that six (6) cases be tried together in “Group 1” and that seven (7) cases be tried
`
`together in “Group 3.” While it is true that consolidation has been a hotly debated topic in the
`
`long CMO negotiations, it is also true that the judges in the NYCAL have come to understand,
`
`without any “mandate” via a CMO, as is clearly evident in their rulings, that groups of six or
`
`seven cases is simply too much. A review of the consolidation decisions, by all of the NYCAL
`
`
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
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`RECEIVED NYSCEF: 04/20/2017
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`judges, over the last three or four years has shown a movement by the courts themselves, to
`
`“cap” consolidations at two to three cases per group. While defendants continue to question the
`
`process of consolidation as a whole, the smaller groupings that have become “standard” in the
`
`NYCAL are clearly less likely to create the prejudices and problems that are the subject of these
`
`opposition papers. What is clear, and has tacitly been acknowledged by the courts, fewer cases
`
`in a group creates fewer problems.
`
`22.
`
`Interestingly, Plaintiffs motion spends significant time attacking the “defense
`
`sponsored litigation opinion” published by Mealeys in 2015. This is fascinating in that Plaintiffs
`
`have previously sought to preclude Defendants from even referencing this paper, yet, Plaintiffs’
`
`spend pages of their motion seeking to discredit it. It should be crystal clear to this Court, that
`
`none of the charts, numbers, verdict amounts, etc. referenced in this Defense brief comes from
`
`the Mealeys paper. While the undersigned has no doubt that the Mealeys paper has excellent
`
`work, none of it was used for this brief. The verdict amounts, averages, arguments, etc. made in
`
`this brief have been compiled by the undersigned over years of practice in the NYCAL. All of
`
`the information herein is publicly available and, in many cases, has been received by the
`
`undersigned from the Plaintiffs’ attorneys who have actually tried these cases. In any event, this
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`Court ought not to be distracted by Plaintiffs irrelevant arguments regarding the Mealeys paper.
`
`23.
`
`In light of the above, it is clear that for the NYCAL to protect the rights of ALL
`
`of its litigants, a wholesale review of the process under which these cases are handled must take
`
`place. The data is clear and cannot be ignored or brushed aside. The NYCAL must evolve and
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`follow the lead of quite literally all of the largest asbestos dockets across the country and re-
`
`examine consolidation in asbestos trials.
`
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
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`RECEIVED NYSCEF: 04/20/2017
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`II.
`
`CONSOLIDATION IN THE ASBESTOS LITIGATION NATIONALLY
`
`The “Try-as-many-as-you-can-at-one-time” approach is great if
`they all, or most, settle; but when they don’t, and they didn’t here,
`thirteen shipyard workers, their wives, or executors if they have
`died, got a chance to do something not many other civil litigants
`can do - overwhelm a jury with evidence. Evidence that would not
`have been admissible in any single plaintiff’s case had these cases
`been tried separately. As the evidence unfolded in this case, it
`became more and more obvious to this Court that a process had
`been unleashed that left the jury the impossible task of being able
`to carefully sort out and distinguish the facts and law of thirteen
`plaintiffs’ cases that varied greatly in so many critical aspects.
`
`Cain v. Armstrong World Indus., 785 F. Supp. 1448, 1455 (S.D. Ala. 1992)8. (Opinion
`
`attached hereto as Exhibit A.)
`
`
`
`24.
`
`In Cain v. Armstrong, the opinion rendered by the Honorable Charles R. Butler,
`
`Jr., U.S.D.J. highlights the risk of consolidation of cases, even those involving individuals with
`
`similar exposures at generally common worksites. Judge Butler explains that:
`
`It is evident (unfortunately, in hindsight) that despite all the
`precautionary measures taken by the Court (e.g., juror notebooks,
`cautionary instructions before, during and after the presentation of
`evidence, special interrogatory forms) the joint trial of such a large
`number of differing cases both confused and prejudiced the jury.
`
`Id.
`
`
`
`25.
`
`In a clear trend nationwide, courts have begun to recognize the dangers and
`
`prejudice associated with the consolidation of asbestos cases for trial. In July of 2005, the Ohio
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`Supreme Court amended the Ohio Rules of Civil Procedure to preclude the joinder of pending
`
`asbestos-related actions. 9 In August 2006, the Michigan Supreme Court adopted an
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`administrative order that precludes the “bundling” of asbestos-related cases for trial. The order
`
`states:
`
`8 A matter concerning the consolidation of thirteen separate actions arising from asbestos exposures in the
`workplace, and, in the majority of the cases, at a common worksite.
`9 See Mark Behrens and Phil Goldberg, The Asbestos Litigation Crisis: The Tide Appears to be Turning, 12 Conn.
`Ins. L.J. 477, p.6, attached hereto as Exhibit B.
`
`
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`FILED: NEW YORK COUNTY CLERK 04/20/2017 11:29 AM
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`It is the opinion of this Court that each case should be decided on
`its own merits, and not in conjunction with other cases. Thus, no
`asbestos-related disease personal injury action shall be joined with
`any other such case for settlement or for any other purpose, with
`the exception of discovery.10
`
`
`
`26.
`
`In addition to courts across the country, state legislators also are acting to stop
`
`improper trial consolidations. They are beginning to appreciate that, in addition to fundamental
`
`fairness and due process problems, consolidating cases to force defendants to settle may provide
`
`a temporary fix to a clogged docket, but ultimately the approach is likely to create more
`
`problems than it solves. In 2005 and 2006, Georgia, Kansas, and Texas enacted laws that
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`generally preclude the joinder of asbestos cases at trial. (Exhibit B). Of note, Madison County
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`Illinois, the jurisdiction with the largest number of annual asbestos filings, as well as largest
`
`number of resolutions, does not use consolidation. To be clear, the NYCAL is the ONLY major
`
`asbestos docket in the country that allows for unbridled consolidation in asbestos cases.
`
`Jurisdiction after jurisdiction has come to the same conclusion, consolidation is simply too
`
`prejudicial, there is a loss of basic fairness that is not acceptable.
`
`27. Many of those states, having determined that consolidation is ripe for misuse,
`
`have taken action to eliminate the right to consolidate asbestos cases, and to the extent
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`consolidation is permitted, it is only with the consent of all parties. See Tex. Civ. Prac, & Rem
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`Code Ann. § 90.009 (2006)(stating with respect to claims involving asbestos and silica: “unless
`
`all parties agree otherwise, claims relating to more than one exposed person may not be joined
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`for a single trial”)(emphasis added); GA Code Ann. § 51-14-10 (2007)(providing that “a trial
`
`court may consolidate for trial any number and type of asbes

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