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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`
`
` --------------------------------------------------------------------- X
`In Re: NEW YORK CITY ASBESTOS LITIGATION
`:
` --------------------------------------------------------------------- X
`
`
` NYCAL
`This Document Relates to:
`
`
` (SHULMAN, J.)
`ELSIE CHAMBLIN, Individually And DAVID C.
`
`CHAMBLIN, As Co-Executors Of The Estate Of
` Index No. 190262/13
`SULPICE N. CHAMBLIN, Deceased, et al.,
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`
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`AFFIRMATION IN OPPOSITION
`TO PLAINTIFFS’ MOTION FOR
`A JOINT TRIAL
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`
`
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`::::::::::::::::
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`Plaintiffs,
`
`
`-- against –
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`3M COMPANY, Individually And As Successor To
`MINNESOTA MINING And MANUFACTURING
`COMPANY, et al.,
`
`
`Defendants.
`
`
` --------------------------------------------------------------------- X
`
`
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`Stephen Novakidis, an attorney duly admitted to practice law before the Courts of the
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`State of New York, affirms the following to be true under the penalty of perjury:
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`
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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 two (2) 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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`
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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 unrelated cases2.
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`1 Malaby & Bradley represents Qualitex Company in the Sullivan matter.
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`{00063523.}
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`SULPICE CHAMBLIN
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`EUGENE SULLIVAN
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`Index No. 190262/13
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`Index No. 190152/15
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`4.
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`At the outset, it should be noted that the Chamblin matter has previously been the
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`subject of a consolidation motion before this Court. On August 7, 2014, oral argument was held,
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`before this Court, wherein the Chamblin case was sought to be consolidated with four (4) other
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`cases. After hearing extensive argument from both sides, this Court determined that the
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`Chamblin case had “a unique set of facts” and that it ought to be tried on its own. (Transcript of
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`Oral argument attached hereto as Exhibit A.)
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`5.
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`The Sullivan matter has also previously been the subject of a consolidation
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`motion before this Court. On March 21, 2016, oral argument was held before this Court,
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`wherein the Sullivan case was sought to be consolidated with (3) three other cases. After hearing
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`argument on the facts of the cases, this Court ordered that Sullivan did not have sufficient
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`commonality to allow it to be joined with the other cases. (Transcript of Oral argument attached
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`hereto as Exhibit B.)
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`6.
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`Both of the cases currently before this Court, and the subject of Plaintiffs’ moving
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`papers, were previously the subject of consolidation motions. In each instance, understanding
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`these were two separate prior motions, the cases at issue here were determined to be unique
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`enough, that they were not joined for trial. It is defendants’ position that the instant motion
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`should not be considered as the issue of “consolidation” was previously decided in each case,
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`and therefore, the issue should not be re-litigated. The doctrine of collateral estoppel, which
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`“bars re-litigation of an issue which has necessarily been decided in a prior action and is
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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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`determinative of the issues disputed in the present action, provided that there was a full and fair
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`opportunity to contest the decision now alleged to be controlling” (Capellupo v. Nassau Health
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`Care Corp., 97 A.D.3d 619, 621, 948 N.Y.S.2d 362). “The party invoking the doctrine must
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`show that the identical issue was necessarily decided in the prior action and is determinative in
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`the present action” (Hoffer v. Bank of Am., N.A., 136 A.D.3d 750, 752, 25 N.Y.S.3d 279). To
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`allow a third consolidation motion at this late juncture would open the door to a flood of motions
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`seeking to mix and match amongst the various cases set to be tried alone across the NYCAL.
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`7.
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`When seeking consolidation of cases for joint trial, plaintiffs typically lean
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`heavily on the concept of “efficiency” and saving the court time and resources. With the current
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`matters, Defendants believe that allowing plaintiffs to take another “bite at the apple,” frankly,
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`two additional “bites” at this time ought not to be allowed. To allow plaintiffs, whether in these
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`cases, or any others, the opportunity to repeatedly seek the Court’s intervention and seek to
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`consolidate cases over and over until they fine the “right” combination flies in the face of any
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`efficiency arguments. Putting aside, that, on the facts, these two matters simply shouldn’t be
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`joined together.
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`I.
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`CONSOLIDATION IN THE NEW YORK CITY ASBESTOS LITIGATION
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`8.
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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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`9.
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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
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`time on post-trial motion practice and lengthy remittitur. Since 2011 there have been
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`approximately thirty (30) asbestos verdicts in New York City. The last six (6) years has seen an
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`increase in the amount of cases reaching verdict. While there are many reasons for this increase,
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`the courts, and the parties involved must reevaluate the process under which these trials are
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`taking place.
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`10.
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`Time and again Plaintiffs argue that Defense concerns are overstated, that the
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`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
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`verdicts, and larger verdicts, than single plaintiff trials. These realities are, at this point, self-
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`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.
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`11.
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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
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`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.
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`12. 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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`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. A defendant
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`remaining in just one of these cases, such as Qualitex Company, will be prejudiced by the impact
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`that a joint trial will have on the prospective jury pool.
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`13.
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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.
`
`Case
`
`Anisansal
`
`Nemeth
`
`Robaey
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`Castorina
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`Cooney
`
`Zammit
`
`Gondar
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`Geritano
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`Bartolone
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` {00063523.}
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`Number Of Cases
`Originally
`Consolidated
`
`Length Of Trial
`
`Result
`
`One (1)
`
`One (1)
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`One (1)
`
`One (1)
`
`Three (3)
`
`One (1)
`
`Two (2)
`
`Three (3)
`
`One (1)
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`Six (6) Weeks
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`$20 Million
`
`Six (6) Weeks
`
`$16.5 Million
`
`Six (6) Weeks
`
`$75 Million
`
`Eight (8) Weeks
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`Defense Verdict
`
`Seven (7) Weeks
`
`$12 Million
`
`Four (4) Weeks
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`Defense Verdict
`
`Eight (8) Weeks
`
`$22 Million
`
`Seven (7) Weeks
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`$6.2 Million
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`Five (5) Weeks
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`Defense Verdict
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`Robusto
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`Miller
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`Hillyer
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`North
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`Hackshaw/Sweberg
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`Juni
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`Carlucci
`
`One (1)
`
`One (1)
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`Two (2)
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`One (1)
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`Four (4)
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`Three (3)
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`Three (3)
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`Five (5) Weeks
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`$7 Million
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`Three (3) Weeks
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`$25 Million
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`Four (4) Weeks
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`$20 Million
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`Three (3) Weeks
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`$7 Million
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`Seven (7) Weeks
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`$25 Million Total
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`Eleven (11) Weeks
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`$11 Million
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`Eight (8) Weeks
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`$7.3 Million
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`Brown/McCloskey/Terry Three (3)
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`Eighteen (18) Weeks $12.5 Million Total
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`Derogatis
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`Thibodeau
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`One (1) case
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`Three (3) Weeks
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`Defense Verdict
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`One (1) case
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`Five (5) Weeks
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`Defense Verdict
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`Assenzio, et. al.
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`Five (5) cases
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`Eleven (11) Weeks
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`$190 Million Total
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`Vega
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`Peraica
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`One (1) case
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`Two (2) Weeks
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`Defense Verdict
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`Nine (9) cases
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`Thirteen (13) Weeks
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`$35 Million
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`McCormick
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`One (1) case
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`One (1) Week
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`$3.8 Million
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`Dummitt/Konstantin
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`Seven (7) cases
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`Eight (8) Weeks
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`$51 Million Total
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`Paolini/Michalski
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`Six (6) cases
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`Five (5) Weeks
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`Defense Verdict
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`Zaug
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`Dietz
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`One (1) case
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`Two (2) Weeks
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`Defense Verdict
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`One (1) case
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`Two (2) Weeks
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`Defense Verdict
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`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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`Curry
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`Benton
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`
`
`One (1) case
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`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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`14.
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`As set forth in Fig. 1 above, there have been thirty (30) asbestos verdicts3 in New
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`York City since 2011. Of those 30 verdicts, seventeen (17) have taken place in single plaintiff
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`cases (as opposed to a consolidated trial) and in those seventeen single plaintiff trials, nine (9)
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`have resulted in defense verdicts. Again, it bears repeating, nine of seventeen single plaintiff
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`trials have resulted in defense verdicts. Only one of thirteen consolidated trials ended in a total
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`defense verdict. In the eight single plaintiff cases that did not result in defense verdicts, the
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`majority of the cases had total awards of $7 million dollars, or less, with two of those being
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`under $4 million dollars, with set-offs reducing the amounts even further. To be fair, the single
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`plaintiff trials also included the recent $75 million dollar verdict before Judge Madden, and the
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`recent $20 million dollar verdict before Judge Mendez, both of which, of course, are wholly
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`unsustainable and will likely be reduced by 80%-90% after what is likely to be years of post-
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`verdict motions.
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`15. Much more common is the unsustainably high verdicts common to consolidated
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`trials, such as the seven week Hackshaw/Sweberg trial with verdicts totaling $25 million; the
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`eight-week Dummitt/Konstantin trial with verdicts totaling $51 million dollars; the Assenzio, et.
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`al., trial group with verdicts totaling $190 million dollars; the eight week Gondar trial with a $22
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`million dollar verdict; or even the Brown trial group which resulted in “only” $12.5 million in
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`total verdicts. Since 2011, there have been more than $500 million dollars awarded by juries in
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`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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`16.
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`Since 2011, the average Plaintiff’s jury verdict in a single plaintiff case, assuming
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`the plaintiff wins, is $9.2 Million4. As we know, more than half (9 of 17) 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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`17.
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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.
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`Fig. 2.
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`
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`Consolidated Trials
`
`Single Plaintiff Trials
`
`Average Past P&S
`
`$810K Per Month
`(18.9 Month Average)
`
`$458K Per Month
`(26 Month Average)
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`Average Future P&S
`
`$2.49 Million Per Month
`(14 Month Average)
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`$792K Per Month
`(12 Month Average)
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`
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`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-two (22) individual plaintiff awards in consolidated
`trials, and eight (8) 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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`18.
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`Since 2011, and taking into account thirty (30) trials in the NYCAL, juries have
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`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
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`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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`19.
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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
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`being similarly eviscerated by the appellate courts. Using an illustration of a group that went
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`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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`
`
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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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`Fig. 3.
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`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
`
`
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`20. While the above chart illustrates an almost complete disconnect between verdicts
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`returned by jurors in New York City with what the courts have determined is sustainable, it also
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`creates an incentive in trying certain types of cases. Cases with a large amount of viable shares
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`(and presumably a large amount collected in settlements) afford the benefit of “set-offs” being
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`credited to those last few defendants. For example, while the jury returned a verdict of $20
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`Million dollars in the Brunck case (above); after it was remitted down to $3.2 Million it was
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`determined that the Plaintiff had already collected more than that amount, which, less the cost of
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`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
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`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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`consolidations, with their enormous and unsustainable verdicts actually create an incentive for
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`more trials, not less.
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`21.
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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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`22.
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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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`Division returned decisions in the Peraica, Hackshaw & Sweberg cases, all of which had verdicts
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`that were further remitted by the Appellate Division, despite the trial courts having remitted the
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`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
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`Appellate Division left little doubt what a “sustainable” amount is, per month, for an award.
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`23. While Plaintiff’s counsel, and the courts, often cite to “efficiency” as the main
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`driving force in consolidation of asbestos cases, it has become clear that “efficiency” is hardly
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`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
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`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
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`being the norm in consolidated trials and with nearly all of them needing to be remitted
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`substantially, the disconnect between the jury’s findings and what is deemed “reasonable” by the
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`courts calls into question other aspects of the jury’s findings. If we cannot trust jurors to give
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`“reality-based” awards in consolidated trials, do we trust that they are even following the facts of
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`the case? The opportunity for prejudice is clear and undeniable.
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`24.
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`In light of the above, it is clear that for the NYCAL to protect the rights of ALL
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`of its litigants, a wholesale review of the process under which these cases are handled must take
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`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-
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`examine consolidation in asbestos trials.
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`II.
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`CONSOLIDATION IN THE ASBESTOS LITIGATION NATIONALLY
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`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
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`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.
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`Cain v. Armstrong World Indus., 785 F. Supp. 1448, 1455 (S.D. Ala. 1992)8. (Opinion
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`attached hereto as Exhibit C.)
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`25.
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`In Cain v. Armstrong, the opinion rendered by the Honorable Charles R. Butler,
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`Jr., U.S.D.J. highlights the risk of consolidation of cases, even those involving individuals with
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`similar exposures at generally common worksites. Judge Butler explains that:
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`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.
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`Id.
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`26.
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`In a clear trend nationwide, courts have begun to recognize the dangers and
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`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
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`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
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`states:
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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
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`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 D.
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`any other such case for settlement or for any other purpose, with
`the exception of discovery.10
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`27.
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`In addition to courts across the country, state legislators also are acting to stop
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`improper trial consolidations. They are beginning to appreciate that, in addition to fundamental
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`fairness and due process problems, consolidating cases to force defendants to settle may provide
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`a temporary fix to a clogged docket, but ultimately the approach is likely to create more
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`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 D). Of note, Madison County
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`Illinois, the jurisdiction with the largest number of annual asbestos filings, as well as largest
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`number of resolutions, does not use consolidation. To be clear, the NYCAL is the ONLY major
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`asbestos docket in the country that allows for unbridled consolidation in asbestos cases.
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`Jurisdiction after jurisdiction has come to the same conclusion, consolidation is simply too
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`prejudicial, there is a loss of basic fairness that is not acceptable.
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`28. Many of those states, having determined that consolidation is ripe for misuse,
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`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
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`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
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`court may consolidate for trial any number and type of asbestos claims or silica claims” only if it
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`has “the consent of all parties”)(emphasis added); Ohio R. Civ. P. 42 (A)(2)(“In tort actions
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`involving an asbestos claim…, the court may consolidate pending actions for case management
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`purposes. For purposes of trial, the court may consolidate pending actions only with the consent
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`10 Admin. Order No. 2006-6, Proh