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NYCAL Issues Bombshell Decision, Ruling Exposure to Friction Products Is Incapable of Causing Mesothelioma and Rejecting the Cumulative Exposure Theory

NYCAL Issues Bombshell Decision, Ruling Exposure to Friction Products Is Incapable of Causing Mesothelioma and Rejecting the Cumulative Exposure Theory 
(NYCAL, April 13, 2015)

By: Joseph J. Welter, Goldberg Segalla

gavel asbestosIn a decision that could change the landscape of NYCAL asbestos litigation in New York, Justice Barbara Jaffe issued a post-trial decision following an $11 million verdict against Ford, essentially precluding Drs. Steven Markowitz and Jacqueline Moline on Frye grounds because there is no established scientific connection between exposure to friction products and mesothelioma. Additionally, Justice Jaffe ruled that the plaintiff’s theory of cumulative exposure without quantifiable exposure is insufficient to establish legally sufficient asbestos exposure.

Justice Jaffe determined that the testimony of the plaintiff’s experts, Drs. Markowitz and Moline, failed to establish both general and specific causation between the plaintiff’s mesothelioma and friction products under the standards articulated by the New York Court of Appeals in Parker and Cornell. The court distinguished Lusternring, an earlier trial court decision that upheld a verdict against a gasket/packing manufacturer.

As for general causation, the court cited there are no epidemiological studies supporting a causal connection between exposure to the products at issue and mesothelioma. Dr. Markowitz admitted that 21 of 22 such studies “yielded no evidence of an increased risk of developing an asbestos-related disease.” Decision, at p. 30.  “And, while the absence of an epidemiological study is not fatal to proving causation … here, the failure to offer in evidence any study to support Markowitz’s opinion must be considered with the 21 studies which … do not show” an increased risk.

As for specific causation, Dr. Moline failed to provide “a scientific expression of [plaintiff’s] exposure to asbestos from brakes, clutches, or gaskets sold or distributed by defendant, and therefore, plaintiffs failed to prove specific causation.” Id., at p. 32.

The court also addressed the plaintiff’s cumulative exposure theory (i.e., that every single exposure constitutes a significant contributing factor), and found that the plaintiff “fail[ed] to offer sufficient evidence that any specific exposure increases the risk of a disease and is thus a significant contributing factor to causing the disease.” Id. Here, the court relied on Parker and Cornell regarding the proof necessary to establish causation as a matter of law in a toxic tort case, and determined that the plaintiff’s theory that “cumulative exposure to asbestos, no matter how small and without any quantification, was a substantial contributing factor, was contrary to New York law.”

Read the full decision here.

LRANY Announces 2015 Schedule of Events

The Lawsuit Reform Alliance of New York is excited to announce our 2015 schedule of events.  For the first time, LRANY will be holding multiple educational and informational events throughout the year and across the state. These events will appeal to broad audiences. Both members and non-members alike are welcome to attend pending space limitations.

The events schedule is as follows:

The Daubert Dilemma, Cutting Edge Science and Law in the 21st Century
New York City | April 29, 2015

Asbestos Litigation, Business as Usual in a “Judicial Hellhole”
New York City | June 2015

LRANY Fall Meeting, Will the Plaintiffs’ Bar Pull the Sword from the Stone?
Westchester | September 2015

LRANY Annual Meeting & Key Issue Summit
Saratoga | Fall 2015

More information on all of these events is available at our events page here.

Sponsorship opportunities are available for all of our events, see our 2015 Sponsorship Opportunities here

The Buffalo News: Silver Indictment Offers Hope for Lawsuit Reform

This weekend the Buffalo News published a letter to the editor from LRANY’s Manager of Government Affairs, Scott Hobson highlighting the renewed opportunity for lawsuit reform with new leadership in the assembly.

An excerpt:

“News that former speaker of the Assembly Sheldon Silver has been indicted by a federal grand jury on corruption and conspiracy charges has spurred a renewed sense of optimism for supporters of common-sense lawsuit reform.

Silver, who served “of counsel” to a large personal injury law firm, was long seen as the greatest obstacle to lawsuit reform, unwilling to even consider proposals that would erode his personal profits and those of his employer. And while the personal injury lawyers thrived under Silver’s leadership, the rest of the state, particularly upstate, suffered. Thanks in no small part to our oppressive legal climate, many businesses have been forced to close or flee the state, taking jobs and tax dollars with them.”

Read Full Letter

Statement from Lawsuit Reform Alliance of New York Executive Director Tom Stebbins Regarding the Imminent Departure of Sheldon Silver

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January 28, 2015

Statement from Lawsuit Reform Alliance of New York Executive Director Tom Stebbins Regarding the Imminent Departure of Sheldon Silver

“News that Sheldon Silver will soon be replaced as Speaker of the Assembly marks the beginning of a new era in which New Yorkers can finally hope see to justice, fairness, and common sense return to our legal system.  For over a decade, Sheldon Silver served on the payroll of a personal injury law firm, and for over a decade New Yorkers suffered under the influence of the trial lawyer special interests.

After over 20 years of Silver’s tenure, we are left with a state ravaged by lawsuits and litigation. Our doctors and hospitals pay the highest liability insurance rates in the country, by a wide margin. Our contractors are unable to even find insurance, and when they do, rates are several times higher than those of their competitors in other states. Companies in the #1 ‘Judicial Hellhole’ that is the NYC Asbestos Litigation court face judgments that are 250% higher than the national average. Under Silver’s watch, the lawsuit industry has thrived while businesses have fled or crumbled under the burden of our imbalanced legal system.

We are all paying for Mr. Silver’s actions. Taxpayers are on the hook for well over a billion dollars a year in lawsuits and litigation. New York City spends more on lawsuits than on parks, libraries and aging combined. In just one year, the NYC School Construction Authority paid over $215m – the equivalent of 2-3 brand new schools – in additional insurance due to the outrageous Scaffold Law that Mr. Silver held in place for years while on the payroll of the trial lawyers who profit from it. Meanwhile, our kids go to school in trailers.

Today is a new day in Albany. We ask our elected officials to take on long overdue legal reforms, including Scaffold Law reform, transparency in asbestos litigation, stronger rules for experts and evidence in the courtroom, judgment interest rates in line with market rates, and fair share liability.

New York has been ‘Sue York’ for too long. We have no future as the lawsuit capital of the world. Today marks the beginning of a new era of justice, fairness, and common sense.”

-Tom Stebbins, Executive Director, Lawsuit Reform Alliance of New York

Contact: Phoebe Stonbely | PStonbely@lrany.org | 518.512.5265

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The Lawsuit Reform Alliance of New York (LRANY) is a nonpartisan not-for-profit association of businesses, professionals, healthcare providers, membership organizations, taxpayers, and concerned citizens committed to changing New York’s legal system to help create jobs and energize our economy.

PDF of Full Statement

Wall Street Journal: Sheldon Silver Charges Highlight Allure of Asbestos Cases

magnify asbestosIn the wake of Speaker Silver’s arrest, the press is connecting his potential links to asbestos cases.  LRANY Executive Director comments in this article.

An excerpt:

“Tom Stebbins, the executive director of the Lawsuit Reform Alliance of New York, an Albany-based group that thinks businesses and others face too much litigation, said the relative shortage of potential plaintiffs, coupled with the high-dollar stakes, has led to “extremely aggressive behavior on the part of plaintiffs’ lawyers trying to land very lucrative clients.”

Companies with ties to asbestos production have put aside more than $30 billion for mesothelioma victims dating to the 1980s, according to a 2011 report from the U.S. Government Accountability Office, completed at the request of Congress. The report also concluded that nearly 100 companies were forced into bankruptcy because of asbestos liability.”

Read Full Article

New York State Assembly Speaker Sheldon Silver Arrested, Charged With Five Counts of Fraud and Corruption

shelly cuffsBy: Scott Hobson & Phoebe Stonbely

The truth shall prevail.

This week, New York State Assembly Speaker Sheldon Silver was arrested and charged with five counts of fraud and corruption. The federal investigation alleges the Speaker abused his position and power to enrich himself, claiming he received excess of $6 million over the last decade. The millions came from multiple sources including referrals and kickbacks from a powerful real estate developer and the law practice of Weitz & Luxenburg.

The complaint states: “Sheldon Silver, the defendant, has engaged in and continues to engage in a secret and corrupt scheme to deprive the citizens of the state of New York of his honest services, and to extort individuals and entities under color of official right, as an elected legislator and as Speaker of the New York State Assembly.” 

In a press conference, US Attorney Preet Bahara offered a scathing assessment.,“The greedy art of secret self-reward was practiced by particular cleverness and cynicism by the speaker himself…Politicians are supposed to be on the people’s payroll, not on secret retainer to wealthy special interests they do favors for,” he continued. “These charges go to the very core of what ails Albany–a lack of transparency, lack of accountability, and lack of principle joined with an overabundance of greed, cronyism, and self-dealing.”

But that may just be the beginning. The arrest of Assembly Speaker Sheldon Silver on charges of corruption raises a host of new questions that prosecutors should address, particularly in relation to undue influence on the New York City Asbestos Litigation Court (NYCAL). Silver allegedly used his influence to drive millions of dollars in referrals to the asbestos firm Weitz and Luxenberg, generating hefty sums for himself and the firm, which reaps tremendous profits from its cases before the NYCAL.

The NYCAL was recently named the #1 “Judicial Hellhole” in the nation for its astoundingly preferential treatment of asbestos plaintiffs firms. In 2008, Speaker Silver appointed Weitz and Luxenberg partner, Arthur Luxenberg to the judicial selection committee, which in turn reviewed and approved the judges for the NYCAL.

As LRANY reported in 2014’s “Power of Attorney” Silver was courted by the powerful New York State Trial Lawyers Association, which has  contributed millions of dollars to legislators political campaigns and spent lavishly for an army of lobbyists. Silver has forcefully opposed tort reform measures that would have hurt the lawsuit industry’s profits.

In addition to charges of fraud and corruption, federal investigators should carefully investigate connections between Silver and the NYCAL and seek to uncover any potentially illegal or unethical conduct involving the New York State Trial Lawyers Association. Sunlight, they say, is the best disinfectant.

New York Law Journal: Speaker’s Arrest Prompts Calls for Change and Patience

In response to Speaker Silver’s arrest yesterday, the New York Law Journal ran an article today highlighting the facts of the situation and recording reactions from many, including LRANY Executive Director, Tom Stebbins.

Cuffs

An excerpt:

“Tom Stebbins, the director of a business-supported Lawsuit Reform Alliance of New York, said Silver’s five-count criminal complaint suggests Silver’s role as a personal injury lawyer could have prevented him from allowing scaffold law reforms to be considered.

“It seems that Speaker Silver was opposing things like scaffold or asbestos transparency reform in part for the payments from Weitz & Luxenberg and not what was good for the people of the state of New York,” Stebbins said in an interview. “He was the roadblock to a lot of these reforms.”

Stebbins said his group, which is allied with the Business Council, the Partnership for New York City and the National Federation of Independent Businesses, favors distributing liability in instances where workers are injured in falls from heights, or are hurt by falling objects, in proportion to the fault that can be ascribed to worker, contractor or construction site owner.”

Read Full Article

For Immediate Release: New York City Court Ranked #1 Worst “Judicial Hellhole” in USA


Contact: Phoebe Stonbely

518.512.5265

pstonbely@lrany.org

New York City Court Ranked #1 Worst “Judicial Hellhole” in USA

Bias, Political Profiteering Plague “Systematically Unfair” Court 

FOR IMMEDIATE RELEASE: Albany, NY (December 16, 2014) – The 2014-15 edition of the American Tort Reform Foundation’s “Judicial Hellholes” report, released today, identifies the New York City Asbestos Litigation court (NYCAL) as the most unfair court in the nation. Since 2002, the Judicial Hellholes report has identified jurisdictions around the country where judges systematically apply court procedures in an unfair and unbalanced manner. While NYCAL has been identified in the past as a “Judicial Hellhole,” new developments have pushed the court to the #1 spot and into the national spotlight.

American Tort Reform Association president Tiger Joyce explained the reason for the New York court’s dubious distinction, “Troubling developments in NYCAL in 2014 have served to make an already plaintiff-friendly court inarguably so. At the behest of a powerful New York-based plaintiffs’ law firm, which happens to pay the moonlighting speaker of the state Assembly $750,000 a year, NYCAL’s managing judge revived long suspended procedures that effectively coerce asbestos defendants into settling cases. And when defendants insist on a trial and lose, they face verdicts that are much higher than elsewhere around the country.”

The report notes that the manager of the asbestos docket, Judge Sherry Klein Heitler, has adopted a series of unjust and deleterious procedures. She has reintroduced punitive damages in asbestos cases in contradiction to a near 20-year old agreement. She also allowed plaintiffs’ lawyers to circumvent a requirement that they disclose claims they have filed or plan to file with trusts established by bankrupted defendants. The report also found that NYCAL judges:

–          Allow plaintiffs’ lawyers to try multiple, dissimilar cases together (consolidation)
–          Impose liability on one company for the products of another
–          Routinely hold defendants jointly liable for a plaintiff’s entire damages award despite a New York law that provides for allocation of liability in proportion to fault

The report concludes that as a result of such practices, multimillion-dollar awards in asbestos cases tried in New York City have become commonplace. Further, the report notes that the Speaker of the New York State Assembly, Sheldon Silver, is also on the payroll of one of the law firms profiting from the NYCAL imbalance, and has aggressively opposed efforts to reform the state’s tort laws.

Tom Stebbins, Executive Director of the Albany-based Lawsuit Reform Alliance of New York underscored the seriousness of the situation in the NYCAL. “For years, we’ve seen all manner of legal shenanigans in the asbestos court, including aggressive efforts by personal injury asbestos firms to influence the court’s decision making. They have precipitated a lawsuit feeding frenzy, bankrupting American companies and siphoning millions of dollars from future victims. It’s no surprise the court was named the worst ‘Judicial Hellhole’ in the nation”

The report notes that the state’s high court has an opportunity to move the court in the right direction. “With the speaker strangling all meaningful legislative tort reforms in the cradle, mitigation of NYCAL injustices will have to come from the state’s high court. And the Court of Appeals is now considering cases involving both the unfair consolidation of asbestos cases and third-party liability, so it can and should rein in NYCAL’s plainly plaintiff-favoring bias,” Joyce urged.

He noted the New York Court of Appeals’ 2014 rejection of medical monitoring claims in the absence of manifest injury, a decision cited among the report’s “Points of Light,” as a reason to hope it will also move to restore some balance in NYCAL courtrooms.

The full 2014-15 Judicial Hellholes report can be found here: http://goo.gl/Pxnl1g

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The Lawsuit Reform Alliance of New York (LRANY) is a nonpartisan not-for-profit association of businesses, professionals, healthcare providers, membership organizations, taxpayers, and concerned citizens committed to changing New York’s legal system to help create jobs and energize our economy.

Judicial Hellholes 2013/2014 – New York City Ranked #3 Worst in Nation

Today, the American Tort Reform Foundation released their annual ‘Judicial Hellholes’ report.  It comes as no surprise that New York City was ranked the third worst ‘hellhole’ in the nation citing its unfair civil courts, following California and Lousiana.  Jumping up from number four last year, New York City’s legal climate is only getting worse.  The report names biased asbestos courts, hospital closings, conflict of interest and ethics issues among lawmakers, and the antiquated ‘Scaffold Law’ as contributing factors to NYC’s ranking.

The report states that Speaker Sheldon Silver, who happens to work for the law firm Weitz & Luxenberg which specializes in asbestos litigation, is pressuring asbestos litigation judges to consolidate cases, enabling plaintiff’s lawyers to bundle high-verdict cases with lower dollar ones.  These consolidated cases produce an average verdict of $29.8 million for the plaintiff, according to the report, compared to $3.2 million for individual cases.

LRANY Executive Director, Tom Stebbins, is quoted on hospital closings – “In New York, 19 hospitals have closed since 2000, leaving several neighborhoods underserved.” Meritless lawsuits are a big reason for the closures, he added, as “astronomical medical liability costs are affecting access to healthcare,” hurting “those who need it most.”

The continued struggle to implement common sense reform to the New-York-only scaffold law is highlighted in the report.  Noting insurance companies’ unwillingness to write policies in New York and contractors seeing 500% increases in insurance rates in the last few years despite impeccable safety records.

On a positive note, the report shared that the tort liability and number slip-and-falls cases filed were down from last year.

See Full Report Here

Asbestos Proven to Cause Judicial Insanity

By: Michael Seinberg

We all know that exposure to asbestos can cause all sorts of nasty health problems, but a new ruling by a New York Supreme Court justice now shows that even talking about the substance can have serious mental repercussions.

It seems one Ronald Dummitt and his very talented lawyer sued Crane Co. and managed to win a record-setting jury award due to his contracting mesothelioma. He claims this occurred due to his service in the Navy from 1960 to 1977 (the disease reared its ugly head in 2009). During his service, Mr. Dummitt claims he was exposed to asbestos and blames Crane, which supplied valves to the Navy, which Mr. Dummit claims to have worked on. But here’s the funny part: Crane argues it is not liable as it did not manufacture, supply or place into the stream of commerce any of the asbestos containing products to which Mr. Dummitt was exposed.

Yes, you read that right, Crane made valves made of metal. They never made or supplied anything that was made of asbestos. Now, to be fair, some of their valves were installed using asbestos containing gaskets, but they were supplied to the Navy by another company. That being said, Mr. Dummitt’s attorney argued that Crane had a responsibility to warn people of the dangers of asbestos. By not doing so, Crane showed reckless disregard for the safety of the end user and was thus 99 percent liable for Mr. Dummitt’s sickness and ultimate death. The fact that he worked with asbestos for 17 years that came from any number of sources did not seem to sway the jury.

The jury bought this liability-without-causality argument, and awarded $32 million to the plaintiff and his lawyer ($16 million for prior pain and suffering and $16 million for future pain and suffering). When Crane appealed the verdict and asked that it be set aside, the judge denied the motion but did reduce the award to $8 million.

To put that $32 million figure into perspective, it was the largest product liability verdict in NY in 2011 and the 4th largest verdict in the state that year. The reduced amount of $8 million represents one of the largest sustained verdicts in NY asbestos litigation.

The asbestos feeding frenzy by the plaintiff’s bar has led to the demise of about 80 companies so far. While nobody argues asbestos is nasty stuff, the sheer insanity of the ruling, the size of the awards and the overarching greed of the attorneys in these cases has gotten way out of hand. We need transparency in asbestos litigation, clearer guidelines on product liability and a huge injection of sanity and common sense before the plaintiff’s bar decides to start suing anyone who even prints the word asbestos. Oops…..