On the Edge: New York County Asbestos Litigation at a Tipping Point
U.S. Chamber Institute for Legal Reform
This paper explains the history and current state of NYCAL, including descriptions of the jurisdiction itself, the First CMO, the CMO revision process, and the Revised CMO. In particular, this paper analyzes four procedural elements of NYCAL under the First and Revised CMOs: (1) consolidation of several cases into one trial setting; (2) the availability of recklessness findings that overcome joint and several liability; (3) the availability of punitive damages; and (4) asbestos bankruptcy trust transparency. The paper notes the cumulative effects of these four areas on the due process rights of defendants in NYCAL, even with the changes made to them under the Revised CMO. The paper concludes that these procedural features have driven verdicts and settlements higher than those in many other jurisdictions, a phenomenon that is likely to continue under the Revised CMO absent fresh judicial interpretation and methods of implementation that correct current problems.
As asbestos litigation has shifted in content and geography over the last 20 years, the New York County Asbestos Litigation (NYCAL) unit of New York City’s state trial court has consistently been one of the most active asbestos courts nationally, certainly in dollars, and in some instances in numbers of cases. After years in a steady state, NYCAL is currently in a period of potentially substantial change. For many years, NYCAL’s first Case Management Order (First CMO) governed the procedures for virtually all aspects of asbestos cases, from pretrial discovery to the selection of cases for trial, to available damages. After years of negotiations prompted by the reintroduction of punitive damages to NYCAL and a new presiding judge, a new CMO (Revised CMO) has just been issued.