On December 10, 2020 a
Exhibit,Appendix
was filed
involving a dispute between
Patsy Young,
and
Aventis Inc.,
Avon Products, Inc.,
Block Drug Company, Inc.,
Block Drug Corporation,
Brenntag North America, Inc.,
Brenntag Specialties, Inc. F K A Mineral Pigment Solutions, Inc.,
Charles B. Chrystal Company, Inc.,
Chattem, Inc.,
Colgate-Palmolive Company,
Cyprus Amax Minerals Company,
Cyprus Mines Corporation,
Glaxosmithkline Llc (Sued Individually And As Successor-In-Interest To Block Drug Corporation, Successor-In-Interest To The Gold Bond Sterilizing Powder Company A K A The Gold Bond Company And As A Successor-In-Interest To Novartis Corporation And
Novartis Consumer Health Inc.),
Gsk Consumer Health, Inc. F K A Novartis Consumer Health Inc. F K A Ciba Self-Medication, Inc.,
Insight Pharmaceuticals Corporation, A Subsidiary Of Prestige Brands Holdings, Inc.,
Insight Pharmaceuticals Llc,
Macy'S Inc. F K A Federated Department Stores, Inc.,
Novartis Pharmaceuticals Corporation,
Prestige Brands Holdings, Inc.,
Prestige Consumer Healthcare Inc. F K A Prestige Brands, Inc.,
Sanofi-Aventis U.S. Llc,
Sanofi Us Services, Inc.,
Whittaker Clark & Daniels, Inc.,
for Torts - Asbestos
in the District Court of Erie County.
Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
EXHIBIT KK
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
SUPREME COURT : STATE OF NEW YORK
COUNTY OF NEW YORK : PART 50
- - - - - - - - - - - - - - - - - _ _ - _ _ x
IN RE: NEW YORK CITY ASBESTOS LITIGATION :
____________________________________________
: Index No.:
THIS DOCUMENT RELATES TO : 782000/2017
ALL ASBESTOS CASES :
Peter H. Moulton, J.S.C.
This Decision and Order accompanies the Case Management
Order signed by the Court on today's date. The Case Management
Order governs various pre-trial and trial procedures in the New
York City Asbestos Litigation ("NYCAL"). All asbestos personal
injury and wrongful death cases with a nexus to New York City are
lodged in NYCAL, which from its inception has been located in the
District.¹
First Judicial A case management order governing how
asbestos cases are processed and tried has long been a fixture in
NYCAL. Prior case management orders have been amended from time to
time.
The Case Management Order signed today arises from a
motion brought by defendants in 2015, and is a product of more than
plaintiffs'
a year's discussion between the Court and the and
defendants'
bars that regularly appear in NYCAL.
The purpose of the instant Decision and Order is to
describe the process that led to the issuance of the new Case
1The First Judicial District encompasses New York County,
i.e. Manhattan.
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
Management Order, and to explain some of the changes made to the
order.2
prior, now superceded, case management A brief recitation
of the recent history of NYCAL is useful in understanding both the
Court's discussions with the NYCAL bar, and the results of those
discussions as embodied in the Case Management Order signed today.
I. A BRIEF HISTORY OF THE NEW YORK CITY ASBESTOS
LITIGATION
NYCAL began with an Administrative Order dated October
23, 1987, issued by the Hon. Milton L. Williams, who was then the
Deputy Chief Administrative Judge for the Courts of New York City.
The longevity of NYCAL, and other similar dedicated asbestos courts
in federal and state jurisdictions, reflects the fact that asbestos
litigation is the nation's longest-running mass tort.
The longevity of asbestos litigation in the United States
arises from several factors. Prominent among these factors is the
omnipresence of asbestos in the economic life of the nation in the
late nineteenth century and particularly in the first three
quarters of the twentieth century. During the latter period
particularly, asbestos was intensively mined, and it was used in a
in a broad array of products as a fire and heat retardant.
2The Case Management Order signed on today's date will be
designated herein by capitalization. Where this Decision and
Order refers to a superceded case management order, that order
will appear in lower case. The acronym CMO used herein refers
generically to case management orders.
2
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
Asbestos is a general term for several types of mineral silicates.
Because of its insulating and fireproofing properties, asbestos has
been used as a binding agent in thousands of building products,
including cement, wall board and vinyl floor tile. It was used as
an insulator for boilers and valves of all kinds, and as a
component of friction products such as car brakes and clutches.
These examples are not exhaustive. Even after the deployment of
asbestos began to decline in the 1970s, the various products that
historically contained asbestos remained in the nation's
residential and commercial buildings, ships, product inventories,
locations.3
and other
A second reason for the persistence of asbestos
litigation is that the diseases that arise from asbestos exposure
have long latency periods; symptoms may not appear until thirty or
more years after exposure. The diseases and injuries caused by
asbestos are mesothelioma, other cancers, asbestosis and pleural
abnormalities. Mesothelioma, which is always fatal, is a cancer of
the lining of the chest or abdomen for which asbestos is virtually
the only known cause. Lung cancer is the other frequently claimed
cancer in asbestos litigation, although there are connections
between asbestos and other forms of cancer as well. Asbestosis is
3
Indeed, asbestos is still used legally in a few products
in the United States. An outright ban was considered at the
federal level, and then abandoned in the early 1990s. For a
description of this episode, see Fatal Deception, Michael Bowker,
2003, at 145-49.
3
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
chronic lung scarring caused by the inhalation of asbestos.
Pleural plaques, pleural thickening, and pleural effosions all
refer to abnormalities of the pleura, the membrane that lines the
inside of the chest wall and covers the outside of the lung.
Pleural abnormalities may or may not develop into serious
illnesses.
A third reason that asbestos litigation persists is
because other types of compensation schemes for victims of asbestos
exposure have either proven inadequate, or have never been
country.4
attempted in this
The ubiquity of asbestos, the drawn out etiology of
asbestos-caused disease, and the absence of compensation
alternatives resulted in what the U.S. Supreme Court has called the
cases."
"elephantine mass of asbestos (Ortiz v Fireboard Corp.,
527 US 815, 821 [1999).) NYCAL, with its case management orders
and the common law that has been developed by its judges, is an
mass"
attempt to manage the portion of the "elephantine of cases
that have a nexus to New York City. Justice Helen Freedman, an
innovative and hardworking jurist, was the first Coordinating Judge
of NYCAL. It is a tribute to her that she conceived and
implemented many of the case management tools still used today in
NYCAL to ensure an orderly process of preparation of cases for
4For a case study of one such legislative effort, see Dust
UDr. Asbestos Litigation Reform and the Failure of Commonsense
Policy Reform, Barnes, 2011.
4
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
settlement and trial. Among the choices made by Justice Freedman,
plaintiffs' defendants'
in consultation with the and bars, was to
categorize cases by the severity of a plaintiff's disease. Cases
where the plaintiff had been exposed to asbestos, but had not
developed symptoms of serious disease, were placed on an inactive
docket, so that plaintiffs who were suffering from serious disease
could be heard. Various other case management tactics were
deployed and set forth in the operative case management order.
Many of these procedures were different than the usual procedures
for discovery, motion practice, and trial preparation set forth in
the CPLR.
After some experience as NYCAL's Coordinating Judge,
Justice Freedman came to conclude that punitive damages should not
"deferred"
be allowed in the litigation. In 1996 she all punitive
damages in NYCAL claims indefinitely. As she herself has said,
dismissal"
this was "tantamount to of all punitive damages claims.
(S_gg Freedman, Selected Fthical Issues in Asbestos Litigation, 37
SW. U. L. Rev. 511, 528.) Justice Freedman instituted the deferral
for several reasons, including what she considered the inefficacy
of imposing punitive damages to change corporate behavior that had
occurred, in some cases, thirty to fifty years before.
Additionally, the deferral was imposed at a time of mounting
numbers of bankruptcies of companies that mined and manufactured
asbestos. Punitive awards, it can be argued, might deplete a
5
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
corporation's resources to such an extent that there would not be
sufficient money to pay compensatory damages for thousands of
plaintiffs in the litigation pipeline whose claims are yet to be
heard, to say nothing of thousands of other potential victims whose
claims are inchoate. The deferral was a policy choice by a
conscientious and creative judge in charge of managing an unruly
caseload. The laws of this state confer no explicit judicial power
"defer"
to categorically a type of damages claim.
In 2013, plaintiffs moved to modify the CMO to allow
punitive damages claims. Defendants opposed the motion and sought
to continue the deferral. They also cross-moved to vacate and
declare inapplicable the entire CMO.
plaintiffs'
In April 2014, the motion was granted, and
defendants'
the cross-motion denied, by then-Coordinating Judge
Sherry Klein Heitler. Plaintiffs were thus enabled to seek
punitive damages. (See Matter of New York City Asbestos
Litication, 2014 WL 10714009 [referred to herein as the "April 2014
Decision"].) In the immediate wake of the April 2014 decision, no
trial judge in NYCAL granted a plaintiff's application to assert a
punitive damages claim.
defendants'
The bar claimed that the April 2014 Decision
threw out of balance the compromises made by both sides embodied in
the Case Management Order. Defendants argued that they had agreed
to live with a Case Management Order that allowed for expedited
6
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
procedures to process numerous cases in return for a deferral of
punitive damages. Defendants accordingly appealed the April 2014
Decision.
On March 2, 2015, while the appeal was pending, I was
appointed Coordinating Judge of NYCAL upon Justice Heitler's
appointment as head of the Office of Court Administration's Office
defendants'
of Policy and Planning. The bar sent me a letter
Defendants'
welcoming me to NYCAL. letter also sought to initiate
a complete overhaul of the case management order. Plaintiffs also
sent me a letter welcoming me to NYCAL. In their letter plaintiffs
stated that the CMO required at most some minor touch ups, and not
defendants'
the major surgery contemplated by letter.
Soon thereafter, defendants moved for a stay of all NYCAL
litigation for sixty days, with exceptions made for certain cases
where Defendants'
the plaintiff had a terminal disease. purpose in
proposing a stay was to allow time for a thoroughgoing
renegotiation of the existing case management order.
On July 9, 2015, while this motion for a stay was pending
before me, Justice Heitler's April 2014 decision was affirmed as
modified by the First Department. (Matter of New York City
Asbestos Litiaation, 130 AD3d 489.) The First Department found
that the Coordinating Judge in NYCAL had the power to amend the CMO
to allow for the assertion of punitive damages, but held that
defendants were entitled to more notice and discovery of a
7
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023
plaintiff's claim for punitive damages than provided by the April
2014 decision and subsequent decisions. The First Department
stayed any claim for punitive damages pending further modification
of the CMO to provide for "procedural protocols by which plaintiffs
may apply for permission to charge the jury on the issue of
damages."
punitive (Matter of New York City Asbestos Litiaation,
supra, 130 AD3d at 490.)
The First Department's affirmance of the April 2014
decision did not explicitly state that plaintiffs in NYCAL have a
right to punitive damages. Rather the decision focused on the
power of the Coordinating Justice to reintroduce punitive damages.
The First Department states near the end of the decision:
[We] ... remand the matter to the
Coordinating Justice for a determination
of procedural protocols by which
plaintiffs may apply for permission to
charge the jury on the issue of punitive
damages. We note, however that this
decision does not preclude the
Coordinating Justice, after consultation
with the parties, from reconsidering
other aspects of the April Order,
including the determination whether to
permit claims for punitive damages under
the CMO, in the exercise of the court's
discretion, either upon application or at
its own instance.
(130 AD3d at 490.)
The First Department affirmed that portion of the April
defendants'
2014 Order that dismissed cross-motion to vacate the
CMO.
Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 EXHIBIT KK FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 SUPREME COURT : STATE OF NEW YORK COUNTY OF NEW YORK : PART 50 - - - - - - - - - - - - - - - - - _ _ - _ _ x IN RE: NEW YORK CITY ASBESTOS LITIGATION : ____________________________________________ : Index No.: THIS DOCUMENT RELATES TO : 782000/2017 ALL ASBESTOS CASES : Peter H. Moulton, J.S.C. This Decision and Order accompanies the Case Management Order signed by the Court on today's date. The Case Management Order governs various pre-trial and trial procedures in the New York City Asbestos Litigation ("NYCAL"). All asbestos personal injury and wrongful death cases with a nexus to New York City are lodged in NYCAL, which from its inception has been located in the District.¹ First Judicial A case management order governing how asbestos cases are processed and tried has long been a fixture in NYCAL. Prior case management orders have been amended from time to time. The Case Management Order signed today arises from a motion brought by defendants in 2015, and is a product of more than plaintiffs' a year's discussion between the Court and the and defendants' bars that regularly appear in NYCAL. The purpose of the instant Decision and Order is to describe the process that led to the issuance of the new Case 1The First Judicial District encompasses New York County, i.e. Manhattan. FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 Management Order, and to explain some of the changes made to the order.2 prior, now superceded, case management A brief recitation of the recent history of NYCAL is useful in understanding both the Court's discussions with the NYCAL bar, and the results of those discussions as embodied in the Case Management Order signed today. I. A BRIEF HISTORY OF THE NEW YORK CITY ASBESTOS LITIGATION NYCAL began with an Administrative Order dated October 23, 1987, issued by the Hon. Milton L. Williams, who was then the Deputy Chief Administrative Judge for the Courts of New York City. The longevity of NYCAL, and other similar dedicated asbestos courts in federal and state jurisdictions, reflects the fact that asbestos litigation is the nation's longest-running mass tort. The longevity of asbestos litigation in the United States arises from several factors. Prominent among these factors is the omnipresence of asbestos in the economic life of the nation in the late nineteenth century and particularly in the first three quarters of the twentieth century. During the latter period particularly, asbestos was intensively mined, and it was used in a in a broad array of products as a fire and heat retardant. 2The Case Management Order signed on today's date will be designated herein by capitalization. Where this Decision and Order refers to a superceded case management order, that order will appear in lower case. The acronym CMO used herein refers generically to case management orders. 2 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 Asbestos is a general term for several types of mineral silicates. Because of its insulating and fireproofing properties, asbestos has been used as a binding agent in thousands of building products, including cement, wall board and vinyl floor tile. It was used as an insulator for boilers and valves of all kinds, and as a component of friction products such as car brakes and clutches. These examples are not exhaustive. Even after the deployment of asbestos began to decline in the 1970s, the various products that historically contained asbestos remained in the nation's residential and commercial buildings, ships, product inventories, locations.3 and other A second reason for the persistence of asbestos litigation is that the diseases that arise from asbestos exposure have long latency periods; symptoms may not appear until thirty or more years after exposure. The diseases and injuries caused by asbestos are mesothelioma, other cancers, asbestosis and pleural abnormalities. Mesothelioma, which is always fatal, is a cancer of the lining of the chest or abdomen for which asbestos is virtually the only known cause. Lung cancer is the other frequently claimed cancer in asbestos litigation, although there are connections between asbestos and other forms of cancer as well. Asbestosis is 3 Indeed, asbestos is still used legally in a few products in the United States. An outright ban was considered at the federal level, and then abandoned in the early 1990s. For a description of this episode, see Fatal Deception, Michael Bowker, 2003, at 145-49. 3 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 chronic lung scarring caused by the inhalation of asbestos. Pleural plaques, pleural thickening, and pleural effosions all refer to abnormalities of the pleura, the membrane that lines the inside of the chest wall and covers the outside of the lung. Pleural abnormalities may or may not develop into serious illnesses. A third reason that asbestos litigation persists is because other types of compensation schemes for victims of asbestos exposure have either proven inadequate, or have never been country.4 attempted in this The ubiquity of asbestos, the drawn out etiology of asbestos-caused disease, and the absence of compensation alternatives resulted in what the U.S. Supreme Court has called the cases." "elephantine mass of asbestos (Ortiz v Fireboard Corp., 527 US 815, 821 [1999).) NYCAL, with its case management orders and the common law that has been developed by its judges, is an mass" attempt to manage the portion of the "elephantine of cases that have a nexus to New York City. Justice Helen Freedman, an innovative and hardworking jurist, was the first Coordinating Judge of NYCAL. It is a tribute to her that she conceived and implemented many of the case management tools still used today in NYCAL to ensure an orderly process of preparation of cases for 4For a case study of one such legislative effort, see Dust UDr. Asbestos Litigation Reform and the Failure of Commonsense Policy Reform, Barnes, 2011. 4 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 settlement and trial. Among the choices made by Justice Freedman, plaintiffs' defendants' in consultation with the and bars, was to categorize cases by the severity of a plaintiff's disease. Cases where the plaintiff had been exposed to asbestos, but had not developed symptoms of serious disease, were placed on an inactive docket, so that plaintiffs who were suffering from serious disease could be heard. Various other case management tactics were deployed and set forth in the operative case management order. Many of these procedures were different than the usual procedures for discovery, motion practice, and trial preparation set forth in the CPLR. After some experience as NYCAL's Coordinating Judge, Justice Freedman came to conclude that punitive damages should not "deferred" be allowed in the litigation. In 1996 she all punitive damages in NYCAL claims indefinitely. As she herself has said, dismissal" this was "tantamount to of all punitive damages claims. (S_gg Freedman, Selected Fthical Issues in Asbestos Litigation, 37 SW. U. L. Rev. 511, 528.) Justice Freedman instituted the deferral for several reasons, including what she considered the inefficacy of imposing punitive damages to change corporate behavior that had occurred, in some cases, thirty to fifty years before. Additionally, the deferral was imposed at a time of mounting numbers of bankruptcies of companies that mined and manufactured asbestos. Punitive awards, it can be argued, might deplete a 5 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 corporation's resources to such an extent that there would not be sufficient money to pay compensatory damages for thousands of plaintiffs in the litigation pipeline whose claims are yet to be heard, to say nothing of thousands of other potential victims whose claims are inchoate. The deferral was a policy choice by a conscientious and creative judge in charge of managing an unruly caseload. The laws of this state confer no explicit judicial power "defer" to categorically a type of damages claim. In 2013, plaintiffs moved to modify the CMO to allow punitive damages claims. Defendants opposed the motion and sought to continue the deferral. They also cross-moved to vacate and declare inapplicable the entire CMO. plaintiffs' In April 2014, the motion was granted, and defendants' the cross-motion denied, by then-Coordinating Judge Sherry Klein Heitler. Plaintiffs were thus enabled to seek punitive damages. (See Matter of New York City Asbestos Litication, 2014 WL 10714009 [referred to herein as the "April 2014 Decision"].) In the immediate wake of the April 2014 decision, no trial judge in NYCAL granted a plaintiff's application to assert a punitive damages claim. defendants' The bar claimed that the April 2014 Decision threw out of balance the compromises made by both sides embodied in the Case Management Order. Defendants argued that they had agreed to live with a Case Management Order that allowed for expedited 6 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 procedures to process numerous cases in return for a deferral of punitive damages. Defendants accordingly appealed the April 2014 Decision. On March 2, 2015, while the appeal was pending, I was appointed Coordinating Judge of NYCAL upon Justice Heitler's appointment as head of the Office of Court Administration's Office defendants' of Policy and Planning. The bar sent me a letter Defendants' welcoming me to NYCAL. letter also sought to initiate a complete overhaul of the case management order. Plaintiffs also sent me a letter welcoming me to NYCAL. In their letter plaintiffs stated that the CMO required at most some minor touch ups, and not defendants' the major surgery contemplated by letter. Soon thereafter, defendants moved for a stay of all NYCAL litigation for sixty days, with exceptions made for certain cases where Defendants' the plaintiff had a terminal disease. purpose in proposing a stay was to allow time for a thoroughgoing renegotiation of the existing case management order. On July 9, 2015, while this motion for a stay was pending before me, Justice Heitler's April 2014 decision was affirmed as modified by the First Department. (Matter of New York City Asbestos Litiaation, 130 AD3d 489.) The First Department found that the Coordinating Judge in NYCAL had the power to amend the CMO to allow for the assertion of punitive damages, but held that defendants were entitled to more notice and discovery of a 7 FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 03/03/2023 plaintiff's claim for punitive damages than provided by the April 2014 decision and subsequent decisions. The First Department stayed any claim for punitive damages pending further modification of the CMO to provide for "procedural protocols by which plaintiffs may apply for permission to charge the jury on the issue of damages." punitive (Matter of New York City Asbestos Litiaation, supra, 130 AD3d at 490.) The First Department's affirmance of the April 2014 decision did not explicitly state that plaintiffs in NYCAL have a right to punitive damages. Rather the decision focused on the power of the Coordinating Justice to reintroduce punitive damages. The First Department states near the end of the decision: [We] ... remand the matter to the Coordinating Justice for a determination of procedural protocols by which plaintiffs may apply for permission to charge the jury on the issue of punitive damages. We note, however that this decision does not preclude the Coordinating Justice, after consultation with the parties, from reconsidering other aspects of the April Order, including the determination whether to permit claims for punitive damages under the CMO, in the exercise of the court's discretion, either upon application or at its own instance. (130 AD3d at 490.) The First Department affirmed that portion of the April defendants' 2014 Order that dismissed cross-motion to vacate the CMO.