to be argued by: e. eo ilonas county clerk’s index no new

To be Argued by:

E. LEO MILONAS

New York County Clerk’s Index Nos. 40000/88, 782000/17

New York Supreme Court

Appellate Division—First Department

IN RE NEW YORK CITY ASBESTOS LITIGATION

––––––––––––––––––––––––––––––

This Document Relates To:

ALL NYCAL CASES

JOINT BRIEF FOR DEFENDANTS-APPELLANTS

Attorneys for Defendants-Appellants:

JEFFREY FEGAN

CLYDE & CO US LLP

The Chrysler Building

405 Lexington Avenue, 16th Floor

New York, New York 10174

(212) 710-3900 [email protected]

Attorneys for Defendants-Appellants

Morse Diesel, Inc., Mario & DiBono

Plastering Co., Inc. and Curtiss-

Wright Flow Control Corporation

E. LEO MILONAS DAVID G. KEYKO JOSHUA I. SCHLENGER PILLSBURY WINTHROP SHAW

PITTMAN LLP 1540 Broadway New York, New York 10036 (212) 858-1000 [email protected]

Attorneys for Defendant-Appellant Cleaver-Brooks, Inc.

(For Continuation of Appearances See Next Page)

PRINTED ON RECYCLED PAPER

PETER J. DINUNZIO

CLYDE & CO US LLP

The Chrysler Building




Attorneys for Defendant-Appellant

Jenkins Bros.

ROBERT J. CHAPPELL

AARONSON RAPPAPORT FEINSTEIN

& DEUTSCH, LLP

600 Third Avenue




Mazda Motor of America, Inc. d/b/a

Mazda North American Operations

NANCY L. PENNIE

AARONSON RAPPAPORT FEINSTEIN

& DEUTSCH, LLP

600 Third Avenue




Ford Motor Company

SUZANNE M. HALBARDIER

BARRY, MCTIERNAN & MOORE, LLC

Two Rector Street, 14th Floor




John Crane, Inc., 84 Lumber

Company, Blackman Plumbing

Supply Co., Domco Products Texas

Inc., Eli Lilly and Company, Fulton

Boiler Works, Inc., H.C. Oswald

Supply Company, Inc., John Crane

Inc., Kimberly-Clark Corporation,

Matt Brewing Company, Inc.,

Mondelez International, Inc., Mule-

Hide Products Co., Inc., R.W.

FRANK A. CECERE JR.

AHMUTY, DEMERS & MCMANUS

200 I.U. Willets Road

Albertson, New York 11507



Colart Americas, Inc., Ex-FM, Inc. f/k/a

Fischbach & Moore, Inc., Thomas &

Betts Corporation, Tishman Realty &

Construction Co., Inc. n/k/a TTV Realty

Holdings, Inc., Webster Plumbing

Supply, Inc., Yuba Heat Transfer LLC

and Wabash Power Equipment Company

FRANCES B. STELLA

LINDSAY P. CAMBRON

BRACH EICHLER LLC

101 Eisenhower Parkway

Roseland, New Jersey 07068

(973) 228-5700 [email protected] [email protected]


Cushman & Wakefield, Inc.

LISA MASSIMI

CARUSO SMITH PICINI PC

60 Route 46 East

Fairfield, New Jersey 07004



ASBEKA Industries of New York

WILLIAM F. MUELLER

CLEMENTE MUELLER, PA

43 West 43rd Street, Suite 156




The William Powell Company

Beckett Corporation, SPX Cooling

Technologies, Inc., The Olympic

Glove and Safety Company, Troy

Boiler Works, Inc., Twin Disc, Inc.

and Whip Mix Corporation

JOHN J. FANNING

CULLEN AND DYKMAN LLP

44 Wall Street




National Grid Generation LLC d/b/a

National Grid, The Brooklyn Union

Gas Company d/b/a National Grid

NY, Long Island Lighting Company

d/b/a LIPA, Niagara Mohawk Power

Corporation d/b/a National Grid,

David Fabricators of N.Y., Inc.,

Howden North America, Inc.,

Spence Engineering Co., Inc., New

York Power Authority, Goulds

Pumps, Inc., AWC 1997

Corporation f/k/a Alpha Wire Corp.,

and Hennessy Industries

DAVID L. FERSTENDIG

LAW OFFICES OF

DAVID L. FERSTENDIG, LLC

280 Madison Avenue, Suite 300




Amsted Rail Company, Inc. and

Baltimore Aircoil Company, Inc.

TIMOTHY M. MCCANN

DOUGLAS J. MCKAY

CON EDISON

Four Irving Place




Consolidated Edison Company of New

York, Inc. and Orange and Rockland

Utilities, Inc.

JENNIFER W. DARGER

DARGER ERRANTE YAVITZ

& BLAU LLP

116 East 27th Street, 12th Floor




Cooper Industries, LLC, Mine Safety

Appliances Company, LLC, Lennox

Industries Inc., Beazer East, Inc., f/k/a

Koppers Company, Inc., Hopeman

Brothers, Inc., Lightolier, Inc., Dana

Companies LLC, Unilever United States,

Inc. and Conopco, Inc.

JOHN J. DELANY, III

DELANY MCBRIDE, LLC

80 Broad Street, 5th Floor




Lehigh Gasket Company, Asten

Johnson, Inc. (as successor in interest

to Asten Hill Group, Inc.) and

Ductmate Industries, Inc.

THOMAS M. CANEVARI

FREEHILL HOGAN & MAHAR LLP

80 Pine Street




National Bulk Carriers, Inc., Universe

Tankships, Inc., Marine Transport

Lines, Inc., Crowley Marine Services,

Inc., Delta Steamship Lines, Inc.,

Residual Enterprises, Inc., Norwegian

Cruise Line Holdings, LTD., Carnival

Corporation, Carnival PLC, Princess

Cruise Line Limited, CSX

Transportation, Inc. and Consolidated

Rail Corporation

ANTHONY J. MARINO

GARRITY GRAHAM MURPHY

GAROFALO & FLINN. P.C.

40 Wall Street, 28th Floor




United Conveyor Corporation

ANDREW J. SCHOLZ

GOLDBERG SEGALLA

711 Third Avenue, Suite 1900




Avco Corporation and McCord

Corporation

ZACHARY S. GOLDBERG

GOLDBERG CORWIN LLP

380 Lexington Avenue, Suite 725




Bridgestone Americas Tire

Operations, LLC and Bridgestone

Americas, Inc.

ARTHUR G. COHEN

GORDON AND SILBER P.C.





Dentsply International Incorporated

and Ransom and Randolph

ERIK C. DIMARCO

VIRGINIA P. SQUITIERI

GORDON REES LLP

One Battery Park Plaza, 28th Floor



Attorneys for Defendants-Appellants Colgate

Palmolive Company, Carrier

Corporation, Otis Elevator Company,

Control Components Inc., Whiting

Corporation, General Dynamics

Corporation, Hyde Marine Inc., Electric

Boat Corporation, Puget Sound

Commerce Center, Clyde Union, Inc.,

S.W. Anderson Sales Corp., Conwed

Corporation and The Boeing Company

RUSSELL A. PEPE

VICTORIA D. SILVA

HARWOOD LLOYD, LLC

130 Main Street

Hackensack, New Jersey 07601



Carlisle Industrial Brake & Friction,

Inc. and Graham Corporation

JASON S. RIEMER

HOAGLAND, LONGO, MORAN, DUNST &

DOUKAS, LLP

48 Wall Street, Suite 1100



Attorneys for Defendants-Appellants Kohler

Co., Johnston Boiler Company, Whittaker,

Clark and Daniels, Inc., York

International, Johnson Controls, Inc.,

Frick Company, Mole-Richardson Co.

and Great Lakes Power Products, Inc.

MARK K. HSU

HAWKINS PARNELL THACKSTON

& YOUNG LLP





Viking Pump, Inc. and Milwaukee

Valve Company, Inc.

BRADLEY R. LAWRENCE

KENT/MCBRIDE, P.C.





BNS LLC and Littelfuse, Inc.

ROBB W. PATRYK

HUGHES HUBBARD & REED LLP

One Battery Park Plaza




R.J. Reynolds Tobacco Co.

(as successor-by-merger to

Lorillard Tobacco Co.)

ANDREW SAPON

LITCHFIELD CAVO LLP





Arconic, Inc., f/k/a Alcoa, Inc.,

Dykes Lumber Company, Inc., Fire

End & Croker Corp., James Walker

Mfg. Co., Inc., Imerys Talc America,

Inc., and Cyprus Amax Minerals

Company

DIANE H. MILLER

LITTLETON JOYCE UGHETTA PARK

& KELLY LLP

The Centre at Purchase

Four Manhattanville Road, Suite 202

Purchase, New York 10577


Attorneys for Defendants-Appellants Kerr

Corporation, Zy-Tech Global

Industries, VWR International, LLC,

and Crown Equipment Corporation

ARIS E. L. DUTKA

LONDON FISCHER LLP

59 Maiden Lane



Attorneys for Defendant-Appellant Forest

Electric Corporation

ROBERT C. MALABY

MARYELLEN CONNOR

MALABY & BRADLEY LLC

150 Broadway, Suite 600




DeZurik, General Railway Signal

Company, Hale Products, Inc., Benfield

Electric Supply Co., Inc., The Hallen

Construction Co., Inc., J.A. Sexauer, Inc.,

J.H. France Refractories Company,

Kinney Vacuum Company, Leeds &

Northrup, Lindberg, Met-Pro

Technologies LLC, Successor by Merger

to Met-Pro Corporation, on behalf of its

Dean Pump Division, NCH Corporation,

New York Air Brake Corp., O’Reilly Auto

Enterprises, LLC, Roper Pump Company,

Sears, Roebuck and Co., Terex

Corporation, Tile Council of North

America, Inc., The Unimax Corporation

and Vellumoid, Inc.

CAROL M. TEMPESTA

MARKS, O’NEILL, O’BRIEN, DOHERTY

& KELLY, P.C.

530 Saw Mill River Road

Elmsford, New York 10523



Steel Grip Inc., Crescent Electric

Supply, Inc. of New York, Columbia

Boiler Company of Pottstown, Bari

Restaurant & Pizza Equipment,

Performance Industries Inc.,

Adience, Inc. f/k/a BMI, Inc. and JT

Falk Company

TIMOTHY COUGHLAN

MARON MARVEL BRADLEY ANDERSON

& TARDY LLC

328 Newman Springs Road

Red Bank, New Jersey 07701



Velan Valve Corp.

NORMAN J. GOLUB

STACEY H. SNYDER

MARSHALL, CONWAY

& BRADLEY, P.C.

45 Broadway, Suite 740




Slant/Fin Corp.

JOSEPH P. LASALA

MCELROY, DEUTSCH, MULVANEY

& CARPENTER, LLP

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, New Jersey 07962



Benjamin Moore & Co., Burnham, LLP,

Crosby Valve, LLC, ExxonMobil

Corporation, Eaton Corporation, Eaton

Aeroquip, LLC, Flowserve U.S. Inc.,

solely as successor to Rockwell

Manufacturing Company, Edward

Valves, Inc. and Nordstrom Valves, Inc.,

Lipe Automation Corporation, Tuthill

Corporation, J.R. Clarkson Company,

LLC, Mueller Co., LLC and Varec

Vapor Control, Inc.

TIMOTHY D. GALLAGHER

MCMAHON MARTINE & GALLAGHER, LLP

55 Washington Street, Suite 720

Brooklyn, New York 11201



Edward Orton Jr. Ceramics

Foundation, Eastern Refractories

Company, Inc., Hilton Worldwide, Inc.,

Park Hotels & Resorts, Inc. and

Tishman Realty & Construction Co.,

Inc. n/k/a TTV Realty Holdings, Inc.

SANTO BORRUSO

JOSEPH J. ORTEGO

NIXON PEABODY LLP

50 Jericho Quadrangle, Suite 300

Jericho, New York 11753



Daimler Trucks North America LLC

KERRYANN M. COOK

MCGIVNEY KLUGER & COOK, P.C.

80 Broad Street, 23rd Floor



Attorneys for Defendants-Appellants Ace Hardware Corporation, Allied

Glove Corporation, Alltite Gasket

Company, Beckerle Lumber Supply Inc.,

Cardone Industries Inc., J & H Berge

Inc., True Value Corporation, and

Vierson Boiler & Repair Co.

RICHARD P. O’LEARY

TROUTMAN SANDERS LLP

875 Third Avenue




Fisher Scientific, Inc., Hercules,

Inc., Mestek, Inc., Parker-Hannifin

Corporation and Standard Motor

Products, Inc.

JOHN S. HOWARTH

WILBRAHAM, LAWLER & BUBA

140 Broadway, 46th Floor




Arconic f/k/a Alcoa Inc., Karnak

Corp. and Reynolds Metals

Company

CHRISTOPHER RENZULLI

JOAN M. GASIOR

RENZULLI LAW FIRM LLP

81 Main Street, Suite 508

White Plains, New York 10601



Pfizer Inc. and American Optical

Corporation

MARK S. KATZ

MICHAEL T. LYNCH

MOUND, COTTON, WOLLAN

& GREENGRASS LLP

One New York Plaza


(212) 804-4200

[email protected]

[email protected]


KONE Inc.

LISA M. PASCARELLA

STEPHANIE A. DIVITA

THE LAW FIRM OF

PASCARELLA DIVITA, PLLC

2137 Route 35, Suite 290

Holmdel, New Jersey 07733



Rheem Manufacturing Company,

NIBCO Inc., and Darco Southern, Inc.

BRIAN SCHLOSSER

RIVKIN RADLER LLP

926 RXR Plaza

Uniondale, New York 11556


Attorneys for Defendant-Appellant Avon

Products, Inc.

MICHAEL J. TESTA

SEGAL MCCAMBRIDGE SINGER

& MAHONEY, LTD





Rogers Corporation

GIOVANNI REGINA

WATERS, MCPHERSON, MCNEILL, P.C.

300 Lighting Way

Secaucus, New Jersey 07096



Riley Power, Inc. and Turner

Construction Co., Inc.

ELIZABETH M. YOUNG

WILSON ELSER MOSKOWITZ EDELMAN

& DICKER LLP

150 East 42nd Street




Chevron U.S.A. Inc., Texaco Inc.,

Gulf Oil Corporation, Hess

Corporation, Ira S. Bushey & Sons,

Inc., Glas-Col, LLC, Hitachi

America, Ltd., Enerjet Corporation

and New Yorker Boiler Company,

Inc.

JOSEPH KOCZKO

RUTHE NEPF

THOMPSON HINE LLP

335 Madison Avenue, 12th Floor




Central Hudson Gas & Electric

Corporation, Alcoa Steamship

Company, Inc., Apex Oil Company,

Inc., American Trading and Production

Corporation, Farrell Lines

Incorporated, Keystone Shipping

Company, Keystone Tankship

Corporation, Maersk B.V. Maersk Inc.

and Maersk Line, Limited

JENNIFER L. BUDNER

SEGAL MCCAMBRIDGE SINGER

& MAHONEY, LTD




Attorneys for Defendant-Appellant Weil-

McLain

1

TABLE OF CONTENTS

Page

I. SUPREME COURT LACKED THE AUTHORITY TO ENTER A CMO SUPERSEDING THE CPLR WITHOUT DEFENDANTS’ CONSENT ............................................................. 19

II. UNIFORM RULE 202.69 DOES NOT AUTHORIZE THE NEW CMO ......................................................................................... 24

A. Uniform Rule 202.69 Does Not Authorize Ignoring the CPLR .................................................................................. 25

B. The New CMO Violates Rule 202.69 ...................................... 26

C. NYCAL is Not a Uniform Rule 202.69 Coordinated Proceeding ................................................................................ 27

D. Supreme Court Misconstrued the Impact of this Court’s 2015 Decision Regarding the Application of Uniform Rule 202.69 ............................................................... 28

III. THE NEW CMO DEPRIVES DEFENDANTS OF THEIR RIGHTS UNDER THE CPLR WITHOUT THEIR CONSENT .......................................................................................... 32

A. Non-particularized Pleadings ................................................... 33

B. Court-Ordered Appointment and Compensation of a Special Master .......................................................................... 35

C. Restricted Motion Practice Under Special Master Regime ..................................................................................... 37

D. Minimal Discovery ................................................................... 40

1. Restricted Use of Interrogatories ........................................ 42

2. Limited Depositions ............................................................ 47

E. Clustering/Retention of Trial Preferences ............................... 48

F. Sanctions .................................................................................. 50

G. The Bankruptcy Trust Disclosure “Loophole” ........................ 51

H. Death of a Plaintiff ................................................................... 55

IV. THE NEW CMO PUNITIVE DAMAGES “PROTOCOL” IS VALUELESS ................................................................................. 56

2

TABLE OF AUTHORITIES

Page(s)

Cases

A.G. Ship Maint. Corp. v. Lezak, 69 N.Y.2d 1 (1986) .................................................................................. 20

Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403 (1968) .............................................................................. 52

Andon ex rel. Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740 (2000) .............................................................................. 19

In re Barnes, 204 N.Y. 108 (1912) ................................................................................ 22

Bernard v. Brookfield Props. Corp., No. 107211/08 (Sup. Ct., N.Y. Cty. Oct. 24, 2011) ................................ 10

Arizona v. California, 460 U.S. 605 (1983)................................................................................. 31

People v. Evans, 94 N.Y.2d 499 (2000) .............................................................................. 31

Gadaleta v. AC&S, Inc., Index No. 110739/02 (Sup. Ct., N.Y. Cty. Sept. 22, 2004)..................... 30

In re Garlock Sealing Techs., LLC, 504 B.R. 71 (Bankr. W.D.N.C. 2014) ..................................................... 53

Matter of Grisi v. Shainswit, 119 A.D.2d 418 (1st Dep’t 1986) ............................................................ 23

Gulf Ins. Co. v. Transatlantic Reinsurance Co., 13 A.D.3d 278 (1st Dep’t 2004) .............................................................. 18

Heller v. Louis Provenzano, Inc., 303 A.D.2d 20 (1st Dep’t 2003) ........................................................ 32, 41

Herbert v. City of N.Y., 126 A.D.2d 404 (1st Dep’t 1987) ............................................................ 23

3

Hochberg v. Davis, 171 A.D.2d 192 (1st Dep’t 1991) ................................................ 21, 38, 39

People v. Jelke, 308 N.Y. 56 (1954) .................................................................................. 21

LaSalle Bank, N.A. v. Pace, 31 Misc.3d 627 (Sup. Ct., Suffolk Cty. 2011), aff’d, 100 A.D.3d 970 (2d Dep’t 2012) .............................................................. 21, 26

Lindsey v. Normet, 405 U.S. 56 (1972) ............................................................................... 7, 15

Ling Ling Yung v. County of Nassau, 77 N.Y.2d 568 (1991) .................................................................. 20, 21, 22

Lipson v. Dime Sav. Bank, FSB, 203 A.D.2d 161 (1st Dep’t 1994) ...................................................... 40, 41

People v. Mezon, 80 N.Y.2d 155 (1992) .............................................................................. 21

In re All Weitz & Luxenberg Cases in Which Cleaver-Brooks, Inc. is a Defendant, Nos. 190441/12, 40000/88, 2014 WL 7208656 (Sup. Ct., N.Y. Cty. Dec. 15, 2014) ........................ 42

In re N.Y.C. Asbestos Litig. (All Weitz & Luxenberg Cases), No. 40000/1988, 2014 WL 10714009 (Sup. Ct., N.Y. Cty. Apr. 8, 2014) ..................................................................................... passim

In re N.Y.C. Asbestos Litig., 130 A.D.3d 489 (1st Dep’t 2015) ..................................................... passim

O’Connor v. Papertsian, 309 N.Y. 465 (1956) ................................................................................ 19

Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (1999) ................................................................................ 19

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)................................................................................. 41

4

Traiger v. Sacks, 184 Misc. 955 (N.Y. Mun. Ct.), aff’d, 185 Misc. 540 (App. Term 1945) .............................................................................................. 22

United Bank, Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254 (1976) ........................................................................ 44, 46

Westervelt v. Gregg, 12 N.Y. 202 (1854) .................................................................................. 22

Wolff v. Laverne, Inc., 17 A.D.2d 213 (1st Dep’t 1962) .............................................................. 11

Yeger v. E*Trade Sec. LLC, 65 A.D.3d 410 (1st Dep’t 2009) .............................................................. 18

Constitutions

New York Constitution, Article I, Section 6 ............................................................................. 13, 22 Article VI, Section 30 .............................................................................. 20

United States Constitution, Article XIV, Section 1 (amended) ........................................................... 13

5

Statutes and Codes

New York Civil Practice Law and Rules, Article 31 ........................................................................................... 25, 52 Section 101 .............................................................................................. 20 Section 102 .............................................................................................. 20 Section 1015 ............................................................................................ 55 Section 1021 ............................................................................................ 55 Section 1601 ............................................................................................ 53 Section 2214 ...................................................................................... 39, 40 Section 2219 ............................................................................................ 40 Section 2220 ............................................................................................ 40 Section 3013 ............................................................................................ 33 Section 3014 ............................................................................................ 33 Section 3025 ............................................................................................ 34 Section 3101 ...................................................................................... 40, 52 Section 3104 .................................................................... 35, 37, 38, 39, 40 Section 3106 ............................................................................................ 47 Section 3108 ............................................................................................ 47 Section 3117 .................................................................... 24, 44, 45, 46, 47 Section 3124 ...................................................................................... 50, 51 Section 3126 ...................................................................................... 50, 51 Section 3130 ............................................................................................ 42 Section 3131 ...................................................................................... 42, 44 Section 3133 ............................................................................................ 42 Section 3403 ...................................................................................... 48, 49 Section 3407 ...................................................................................... 49, 50 Section 3408 ............................................................................................ 21 Section 5501 ............................................................................................ 18 Section 5701 ............................................................................................ 23

New York Criminal Procedure Law, Section 710.60 ......................................................................................... 21

New York General Obligations Law, Section 15-108(a) ..................................................................................... 54

6

Rules and Regulations

Federal Rules of Evidence, Rule 801 ................................................................................................... 44 Rule 804 ................................................................................................... 44

New York Codes, Rules, and Regulations, Title 22, Section 202.1 ....................................................................... 22, 26 Title 22, Section 202.12-a ........................................................................ 21 Title 22, Section 202.24 ........................................................................... 49 Title 22, Section 202.69 .................................................................... passim Title 22, Section 202.25 ........................................................................... 49

Other Authorities

Administrative Transfer Order 276, available at https://www.nycourts.gov/courts/1jd/supctmanh/Mass%20Tort%20PDFs/ Administrative%20Transfer%20Order%20%20276.pdf .............. 8, 26, 28

David Fleischer & Jodi Kleinick, Coordinating Multidistrict Cases in State Courts, N.Y.L.J., Dec. 1, 2003, available at https://www.paulhastings.com/Resources/Upload/Publications/619.pdf ................................................................................................ 27

Research Brief, Bankruptcy Trusts Complicate the Outcome of Asbestos Lawsuits, available at https://www.rand.org/content/dam/rand/pubs/research_briefs/RB9800/RB9830/RAND_RB9830.pdf .................................................. 33

Mem. of Assembly Rules Comm., Bill Jacket, L.1996, ch. 117, available at http://digitalcollections.archives.nysed.gov/index.php/Detail/Object/Show/object_id/34738 .......................................................... 45, 46

Richard A. Solomon, Clearing the Air: Resolving the Asbestos Personal Injury Litigation Crisis, 2 Fordham Env. L. Rev. Issue No. 2 (2011) .............................................. 8

Siegel, New York Practice § 448 [3d ed.] .................................................... 31

7

Siegel, N.Y. Practice § 3 (5th ed. 2011) ...................................................... 20

1

QUESTIONS PRESENTED

1. Was Supreme Court correct that it had the power to issue, without the

parties’ consent, a new case management order (“New CMO”) for the New

York City Asbestos Litigation (“NYCAL”), explicitly superseding the New

York Civil Practice Law and Rules (“CPLR”) and taking away defendants-

appellants’ constitutional and statutory rights?

Answer: No.

2. Did Supreme Court comply with this Court’s decision requiring adequate

“procedural protocols” to safeguard defendants-appellants’ due process

rights with respect to punitive damages claims when it ended the two-

decade-old deferral of punitive damages claims in NYCAL but continued to

deprive defendants-appellants of their constitutional and CPLR rights to

defend against those and other claims?

Answer: No.

3. Was Supreme Court correct that Rule 202.69 of the Uniform Rules for the

New York State Trial Courts authorized it as a Coordinating Justice

(although Supreme Court was never so designated under the Rule) to issue a

case management order, like the New CMO, that abrogates the rules enacted

by the Legislature in the CPLR, where the Uniform Rules mandate that all

Rules “be construed consistent with the Civil Practice Law and Rules”?

2

Answer: No.

3

STATEMENT OF THE CASE

The undersigned defendants-appellants (“Defendants”) in the New York

City Asbestos Litigation (“NYCAL”) appeal from the new NYCAL case

management order (the “New CMO”) and accompanying decision (the “Decision”)

issued by Supreme Court, New York County (Hon. Peter H. Moulton) on June 20,

2017, and entered June 23, 2017.1

Since 1996, NYCAL has been governed by a case management order (the

“CMO”) agreed-to by the NYCAL litigants. At its heart, the CMO contains a set

of agreed-to deviations from the CPLR that were intended to establish an

equilibrium and solve early NYCAL’s case-management crisis. NYCAL plaintiffs

(“Plaintiffs”) benefited because certain deviations in the CMO relaxed Defendants’

due process protections to enable Plaintiffs to reach early trial dates. While

Defendants gave up important due process protections in the CMO, they were

induced to do so in exchange for the CMO’s principal benefit to defendants—

quelling the threat of punitive damages. The balance created by the CMO was

upset in April 2014, when Supreme Court granted Plaintiffs’ motion to modify the

CMO by ending the punitive-damages deferral, thereby eliminating the CMO’s

principal benefit to Defendants while continuing to curtail Defendants’ due process

1 This brief is filed pursuant to notices of appeal joined in by 382 defendants-appellants,

representing approximately 2/3 of all NYCAL defendants. These 382 defendants-appellants represent the full span of NYCAL defendants, ranging from major corporations (such as Johnson & Johnson and Ford Motor Company) to smaller companies.

4

rights—the benefits for Plaintiffs. Supreme Court acknowledged at the time that

granting Plaintiffs’ motion created a “fundamental inequality” in the CMO. See

Record on Appeal (“R.”) at 637-66 (12/15/14 Decision & Order denying

defendants’ motion for leave to renew and reargue), at 5).

Defendants appealed, and on July 9, 2015, this Court, in In re N.Y.C.

Asbestos Litig., 130 A.D.3d 489 (1st Dep’t 2015)(the “2015 Decision”), reversed

Supreme Court’s order modifying the CMO and

remand[ed] 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 [15, 2014] order [of Supreme Court, which ended the deferral of punitive damages claims in NYCAL], 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.

Id. at 490.

This appeal challenges eliminating the deferral of punitive damages without

instituting the required “procedural protocols” for such claims and curing the due

process and other deficiencies identified in the 2015 Decision. Indeed, the New

CMO expressly states that it supersedes the New York Civil Practice Law and

Rules (the “CPLR”): “Where this CMO’s provisions differ from the CPLR’s, the

5

CMO shall control.” R. at 302 (§ VI).2 This irrefutably violates New York’s

Constitution, usurps the Legislature’s powers, and is contrary to decisions of the

Appellate Courts. Supreme Court itself admitted in the Decision that “in the

absence of consent to the CMO by the parties in NYCAL” (R. at 370, Decision

25), it lacked the authority to do so. Supreme Court nonetheless issued the New

CMO that deprives Defendants of fundamental due process rights under the New

York State Constitution and CPLR based on Rule 202.69 of the Uniform Rules for

the New York State Trial Courts (“Uniform Rule 202.69”). That rule provides no

such power, NYCAL was not formed and does not operate pursuant to the Rule,

and Justice Moulton was never appointed a Uniform Rule 202.69 “Coordinating

Justice.”

The New CMO includes several provisions not contained in the CMO—in

addition to the ones stating that the New CMO supersedes the CPLR and

eliminating the punitive damages deferral. For example, the New CMO appoints

the Special Master, without Defendants’ consent, to preside over many aspects of

NYCAL, although Supreme Court previously admitted it did not have the authority

to do so. Compare R. at 313, 330, 331-32 (New CMO §§ § IX.O, XX.B,

XXII.B)(empowering the Special Master to adjudicate fundamental issues

regarding notes of issue and summary judgment) with In re N.Y.C. Asbestos Litig.

2 Unless otherwise noted, all emphasis herein is added.

6

(All Weitz & Luxenberg Cases), No. 40000/1988, 2014 WL 10714009, at *7 (Sup.

Ct., N.Y. Cty. Apr. 8, 2014)(“I do understand that I cannot compel either side to

pay for a Special Master.”). The New CMO also has new rules limiting

Defendants’ ability to use certain evidence relevant to allocation of fault to settled

parties and alters trial venue rules. See R. at 319 (§ XIII). Further, the Decision

reveals that Supreme Court did not, as this Court suggested, reconsider whether the

deferral should be continued—Supreme Court merely adopted the reasoning and

holding of the April 2014 order of Supreme Court that this Court had reversed.3

It was error for Supreme Court to have issued the New CMO for at least four

reasons:

First, a litigant in New York’s civil court system cannot be deprived of its

CPLR rights without its consent. Removing those legislatively guaranteed

entitlements is a violation of the litigant’s right to due process under both the New

York and United States Constitutions. Supreme Court, in fact, acknowledged this

basic tenet in the Decision when it considered proposals that would have modified

the CPLR and other rules to Plaintiffs’ detriment, but rejected them because

Supreme Court was not empowered to alter the parties’ fundamental rights in the

absence of the parties’ consent. See Point I.

3 Supreme Court should not have ended the deferral of punitive damages, and it is respectfully

submitted that this Court should reverse that decision for the reasons set forth in the brief filed by Crane Co., which Defendants adopt.

7

Second, although Supreme Court cites as its authority to issue the New

CMO Rule 202.69 of the Uniform Rules for New York State Courts (“Uniform

Rule 202.69”), that Rule does not authorize Supreme Court to issue orders that

conflict with the CPLR. To the contrary, multiple provisions of Uniform Rule

202.69 reaffirm that compliance with the CPLR is required. Moreover, Uniform

Rule 202.69 does not even apply here. NYCAL was created before Uniform Rule

202.69 was adopted, and no Supreme Court justice supervising NYCAL was ever

appointed as a “Coordinating Justice” pursuant to that rule. This Court did not rule

to the contrary in 2015 Decision. See Point II.

Third, the New CMO’s declaration that it trumps the CPLR in cases of

conflict is not theoretical: the New CMO contains multiple provisions that

contravene Defendants’ CPLR protections. The abrogation of these CPLR rights

coupled with the restoration of punitive damages claims to NYCAL, deprives

Defendants of their due process rights to “present every available defense,”4 to the

claims brought against them. See Point III.

Fourth, the New CMO is contrary to this Court’s ruling in the 2015 Decision

that the NYCAL punitive damages deferral could not be ended unless new,

appropriate “procedural protocols” were adopted—which Supreme Court failed to

do. See Point IV.

4 See Lindsey v. Normet, 405 U.S. 56, 66 (1972) (“Due process requires that there be an

opportunity to present every available defense.”).

8

Accordingly, Defendants respectfully request that this Court vacate the New

CMO and remand for entry of a new case management order that either

(i) complies with the CPLR, or (ii) is consented to by all parties in NYCAL.

BACKGROUND AND PROCEDURAL HISTORY

A. Revival of Asbestos Claims and the Creation of NYCAL

New York City’s asbestos litigation began in 1986 following the New York

legislature’s passage of the so-called “Revival Statute” providing one year to file

previously time-barred asbestos personal injury claims. The short filing period

prompted a surge of lawsuits that New York courts would wrestle to manage for

the next decade.5 As an initial response to the crisis, NYCAL was created on

October 23, 1987 by the administrative order of the Hon. Milton L. Williams, then-

Deputy Chief Administrative Judge for the Courts of the City of New York.6 In

1988 the first NYCAL CMO was entered. R. at 377-416.

B. The Agreed CMO and Deferral of Punitive Damages Claims

Despite the creation of NYCAL and entry of the 1988 CMO, both the

litigants and courts struggled to cope. In substantial part, this was due to the

widespread pursuit of punitive damages claims, which often resulted in punitive

5 See Richard A. Solomon, Clearing the Air: Resolving the Asbestos Personal Injury Litigation

Crisis, 2 Fordham Env. L. Rev. Issue No. 2 (2011)(discussing how the Revival Statute’s “rapid filing deadline created chaos within New York’s ‘asbestos legal community,’” and describing NYCAL’s case management crisis prior to 1996).

6 See Administrative Transfer Order 276, available at https://www.nycourts.gov/courts/1jd/supctmanh/Mass%20Tort%20PDFs/ Administrative%20Transfer%20Order%20%20276.pdf.

9

awards followed by a lengthy appeal, significantly delaying the disposition of

cases. Based on widespread concern about the impact of punitive damages claims

on NYCAL, one of the day’s most-targeted defendants, Owens Corning Fiberglas

(“OCF”), moved in 1994 to amend the then-existing NYCAL case management

order to defer claims for punitive damages. See R. At 740 (4/19/17 Letter from E.

Leo Milonas, Peter J. Dinunzio, Robert C. Malaby, and Suzanne M. Halbardier to

Hon. Peter H. Moulton, at 3). OCF’s motion prompted negotiations between the

NYCAL plaintiffs’ and defense bars, resulting in the 1996 compromise CMO,

which helped alleviate the crisis facing early NYCAL litigants.7 The essential

bargain struck in the 1996 CMO was: defendants agreed to waive fundamental due

process protections provided by the CPLR (such as the right to particularized

complaints, the right to broad disclosure, the limitation on expedited trial rights to

in extremis plaintiffs, and the right to a formalized procedure to resolve disputes

before a judge) to facilitate Plaintiffs’ desire that their lawsuits advance quickly to

trial; and, in exchange, Plaintiffs accepted the indefinite deferral of punitive

damages claims and allowed defendants a few other benefits (like not having to

repeatedly answer form complaints). See R. at 455 (1996 CMO § XVII)(“Counts

7 OCF’s asbestos liabilities, however, drove it into bankruptcy and the establishment of a trust to

pay future asbestos claims.

10

for punitive damages are deferred until such time as the Court deems otherwise,

upon notice and hearing.”).8

For the next seventeen years, despite shifts in the litigation, both sides

strived over the years to adapt to these changes while respecting their original

covenant under the 1996 CMO. A deferred docket was established in 2002 to

ensure that claims by truly sick plaintiffs would receive priority over the claims of

unimpaired plaintiffs. The parties appointed new Special Masters and agreed to

modify the Special Master’s duties from time-to-time. Plaintiffs occasionally

sought permission to proceed with punitive damages claims in individual cases, but

were rebuffed by the judges in every instance.9

C. Plaintiffs’ Efforts to Unravel the 1996 Bargain

The balance created by the 1996 CMO was cast aside, however, on April 15,

2014, when certain Plaintiffs filed a motion seeking to end the longstanding

deferral of punitive damages. Plaintiffs’ purpose was clear—to drive up the

already steep price of settlement by using the threat of punitive damages to ensure

8 This deferral of punitive damages went unchanged in the 2011 amendment to the CMO. See

R. at 515. Neither the formation of NYCAL nor these CMOs was pursuant to Supreme Court’s powers under Uniform Rule 202.69. The rule was not adopted until 2002, and its procedures have never been followed to adopt a Coordinating Justice for NYCAL.

9 See, e.g., R. at 522, Bernard v. Brookfield Props. Corp., No. 107211/08, at 3 (Sup. Ct., N.Y. Cty. Oct. 24, 2011)(“[T]his court declines to take the unprecedented step of disregarding the long-standing practice of deferring punitive damages as provided in the NYCAL CMO.”).

11

that NYCAL defendants would never risk going to trial.10 See R. at 559, 12/16/13

Hr’g Tr. 36:17-21 (“NYCAL plaintiffs and NYCAL judges are held hostage by the

same recalcitrant defendants and insurers who refuse to settle cases as almost every

other asbestos defendant in NYCAL litigation.”).

On April 8, 2014, Justice Freedman’s successor, the Hon. Sherry Klein

Heitler, granted Plaintiffs’ motion (the “April 2014 Order”), ending the deferral.

See In re N.Y.C. Asbestos Litig., 2014 WL 10714009, at *10. Justice Heitler also

denied NYCAL defendants’ cross motion to vacate the newly-amended CMO,

despite withdrawal of their consent to that modified version. See id. at *7, 10.

Justice Heitler determined that, although the CMO operated for two decades as “a

negotiated agreement which embodies the parties’ mutual consent to the various

provisions,” consent was no longer required pursuant to Uniform Rule 202.69.

That rule, however, was enacted six years after the 1996 CMO, in 2002. See id. at

10 The avowed justification for the motion—that punitive damages are needed to compel

supposedly “recalcitrant defendants” into settlement—is wholly inappropriate: punitive damages may not be used as a lever to force defendants to settle cases. See, e.g., Wolff v. Laverne, Inc., 17 A.D.2d 213, 214 (1st Dep’t 1962)(“Discussions of settlement can be facilitated through proper exertion of such influence that may naturally flow by virtue of [a Justice’s] office. But this does not mean that in intervening to promote a fair settlement, undue pressure or coercive measures should be applied by the Justice on either attorney. . . . While the existence of congested calendars calls for attempts to expedite the termination of suits in a minimum of time, these efforts must be consistent with the dictates of due process. Furthermore, they should not serve as a lever to exert undue pressure on litigants to oblige them to settle their controversies without their day in court.”).

Further, Plaintiffs’ position appears designed to solve a non-existent problem. Jury trial verdicts in NYCAL are already exceedingly rare because NYCAL defendants settle in nearly every case. On average, there have been 3 to 4 jury verdicts in NYCAL each year since 2013. This equates to less than 1% of the cases filed annually in NYCAL during the same four-year period. See Crane Co. appeal brief.

12

*7 & n.24; 22 NYCRR § 202.69 (credits: “Sec. filed Jan. 28, 2002 eff. Jan. 24,

2002”). The bargained-for CMO was undone and Defendants’ constitutional due

process rights were compromised.

D. This Court’s Prior Decision

Defendants appealed the April 2014 Order and (while the appeal was

pending) moved to stay certain aspects of NYCAL (excluding living in extremis

plaintiffs’ cases) to allow for the negotiation of a new, consensual CMO that

addressed the issues of today’s NYCAL, not those of two decades ago. Plaintiffs

opposed a stay, explaining that they were pleased with the CMO as modified by

the April 2014 Order.

While defendants’ stay motion was pending, this Court reversed the portion

of April 2014 Order ending the deferral of punitive damages:

[W]e find that the court exceeded its authority to the extent that the April order directs that applications for permission to charge the jury on the issue of punitive damages “shall be made at the conclusion of the evidentiary phase of the trial upon notice to the affected defendant(s), to which such defendant(s) shall have an opportunity to respond.” Due process requires that a defendant be provided with an “opportunity to conduct discovery and establish a defense with respect to this [. . .] damage[s] claim” since such claims involve “different elements and standards of proof and potentially subject defendants to a far greater and different dimension of liability that would otherwise [be] the case”. The April order deprives defendants of their rights of due process by leaving them guessing, until the close

13

of evidence at trial, whether or not punitive damages will be sought.11

In re N.Y.C. Asbestos Litig., 130 A.D.3d at 490 (internal citations omitted). This

Court remanded to Supreme Court to determine: (i) whether to permit punitive

damages at all, and (ii) if so, how to ensure that defendants received all necessary

due process protections if punitive damages were to be permitted. See id. at 490.

In the interim, the First Department stayed implementation of the April 2014

Order, meaning the CMO (and deferral of punitive damages) to which the parties

had consented, continued in effect.

As a predicate to its determination that the April 2014 Order violated

defendants’ due process rights, this Court in the 2015 Decision stated simply that

“[t]he motion court had the authority to modify the CMO,” citing Uniform Rule

202.69. See id. at 489. Significantly, the Court’s decision did not address whether

Uniform Rule 202.69 authorizes a Coordinating Justice to enter a CMO

superseding the CPLR without the parties’ consent, or that the Rule even applied to

NYCAL.

11 Civil proceedings in New York courts are subject to the due process provisions of the federal

and state Constitutions. See U.S. Const. amend. XIV, § 1; N.Y. Const. art. I, § 6. As set forth below, the Due Process Clause requires that a party have a full and fair opportunity to litigate an issue.

14

E. The Creation of a New CMO

On August 28, 2015, Supreme Court (Hon. Peter H. Moulton) denied the

defendants’ stay motion, but set in place a process to create a new NYCAL CMO

as Defendants requested.

In October 2015, following the lead of many other jurisdictions, defendants

proposed an entirely new CMO to address the specific challenges confronting

today’s asbestos litigants. Plaintiffs, however, insisted that the 1996 CMO could

serve as the framework for a new case management order with certain revisions.

The Court agreed with Plaintiffs and decided not to start on a clean sheet of paper.

It held meetings with the parties’ representatives, focusing on what additional

concessions defendants were willing to make to gain back some of their CPLR

rights, while making clear that the deferral of punitive damages would end.12 The

proposed provisions fashioned by the Court (confirming the practice of limiting

trial joinder and facilitating the admissibility of certain interrogatory responses for

Article 16 purposes while further restricting the admissibility of other responses) to

address concerns raised by the Defendants offered little or no benefit to

Defendants. These provisions do not compensate Defendants for the loss of their

CPLR rights, nor did they enable Defendants, particularly in light of the

12 Throughout the pendency of the negotiations, defendants stressed that a compromise CMO had

to be a “package deal,” and that defendants’ willingness to agree to certain provisions was contingent upon reaching a global agreement on a fully consented-to CMO. See R. at 743.

15

elimination of significant CPLR rights, to conduct appropriate discovery and

establish their defenses to punitive-damages claims.13

F. The New CMO and Accompanying Decision

The parties could not reach a global agreement on the Court’s proposed

CMO and, in late December 2016, Defendants’ representatives informed the Court

that the NYCAL defendants would not agree to the proposed CMO because of the

fundamental unfairness of its infringement of defendants’ CPLR rights coupled

with the reintroduction of punitive damages claims. The Court made further,

minor revisions to its proposed CMO andwithout the parties’ consent, and over

the objections of Defendantsissued the New CMO on June 20, 2017, effective

July 20, 2017. See R. at 296 (§ I).

Supreme Court also issued a Decision “to describe the process that led to the

issuance of the new Case Management Order, and to explain some of the changes

made to the prior, now superceded, case management order.” R. at 346-47

(Decision 1-2). The Decision, like the discussions with the parties, evidences no

reconsideration by Supreme Court of whether the punitive damage deferral should

be continued, because there was none; rather, the Decision simply adopts the

reasoning of Justice Heitler’s April 2014 Order on punitive damages. See, e.g., R.

at 366 (Decision 21)(“For the reasons stated in Justice Heitler’s well-reasoned

13 See also Lindsey, 405 U.S. at 66 (“Due process requires that there be an opportunity to present

every available defense.”).

16

April 2014 decision, I adhere to her determination to allow the assertion of

punitive damages in NYCAL and decline to reinstitute a deferral of punitive

damages.”).

This Court directed in the 2015 Decision that, if Supreme Court determined

to end the deferral of punitive damages claims, it should also develop “procedural

protocols” that protect defendants’ due process rights by affording them “an

opportunity to conduct discovery and establish a defense with respect to [punitive]

damage[s] claim[s].” In re N.Y.C. Asbestos Litig., 130 A.D.3d at 490. The New

CMO, however, leaves in place the CMO’s limitations on Defendants’ CPLR

rights while offering little to protect Defendants’ due process rights.14 In fact, the

majority of the New CMO’s punitive-damages provisions instead inure to

Plaintiffs’ benefit. Thus, New CMO § VII.C (R. at 304-305) allows Plaintiffs to:

(1) pursue punitive damage claims if such claims are contained in their current

complaints (which all are); (2) amend their complaint without leave of court to add

such a claim up to ten days prior to the date of Plaintiff’s application to be included

in an Accelerated or Active Cluster; or, (3) if that deadline has passed, so long as

no trial date was set before July 30, 2017 (R. at 333, § XXIV.A), to file a motion to

amend the complaint to add such a claim. The New CMO does suggest that

14 The New CMO does prohibit joint trial of cases if punitive damages have been asserted (R. at

335, § XXV.C) and requires a separate heating on punitive damages if the jury finds that such damages should be awarded. R. at 333-34 (§ XXIV.C).

17

Plaintiffs consider whether they intend to pursue punitive damages claim, but that

provision affords Defendants no rights. Id. § VII.C (R. at 304).

Nor does the New CMO do much to provide Defendants the discovery this

Court’s prior decision determined they were entitled to. While the New CMO

includes provisions on punitive damages discovery, the only effective provision is

the one requiring Defendants to make financial disclosure. R. at 312 (§ IX.M).

Although that same provision allows the parties to serve standard-form punitive

damages interrogatories on each other, those forms have not been developed.

Supreme Court also stated in the Decision that Uniform Rule 202.69

authorized Supreme Court to issue a CMO that abrogates Defendants’ CPLR rights

without defendants’ consent. See R. at 361-64. Relying on this Court’s statement

in its 2015 Decision that Supreme Court had the power to amend the NYCAL

CMO, citing Uniform Rule 202.69 (see supra at 13), Supreme Court held that

Uniform Rule 202.69 did not require such consent, noting that, “consent is a legal

fiction in this context, and it loses whatever force it has in the absence of

unanimous or near unanimous, buy-in by the parties.” R. at 362 (Decision 17).

18

On July 13, 2017, Defendants served notice of entry of the New CMO and

the Decision.15 The next day, 378 defendants-appellants filed notice of appeal of

the New CMO and the Decision.16

STANDARD OF REVIEW

Under CPLR § 5501(c), the Appellate Division reviews both “questions of

law and questions of fact on an appeal from a judgment or order.” This appeal

primarily concerns whether Supreme Court properly determined questions of law.

The Appellate Division reviews such questions de novo. See, e.g., Gulf Ins. Co. v.

Transatlantic Reinsurance Co., 13 A.D.3d 278, 279 (1st Dep’t 2004)(reviewing

Supreme Court’s interpretation of contract de novo); Yeger v. E*Trade Sec. LLC,

65 A.D.3d 410, 413 (1st Dep’t 2009)(reviewing Supreme Court’s denial of class

certification de novo).

In addition, as a branch of the Supreme Court of New York, the Appellate

Division “is vested with the same discretionary power and may exercise that

15 The New CMO and the Decision were entered in the New York County Clerk’s Office on or

about June 23, 2017. An entirely new e-file index number was created for the New CMO (where both the New CMO and Decision were entered). Defendants did not learn that these documents had been entered until July 10, 2017. See Defs.’ Mem. in Supp. of Mot. for Stay (1st Dep’t filed July 19, 2017), at 12-13.

16 Almost 300 of those defendants-appellants moved by order to show cause before Supreme Court to stay the effectiveness of the New CMO pending appeal. Supreme Court declined to sign it, maintaining, inter alia, that the request for a stay should be considered by this Court. On July 19, 2017, Defendants moved by emergency motion before the Hon. Ellen Gessmer, Justice of this Court, who granted an interim stay of the New CMO (except for paragraph 7(c) thereof) “pending decision of the motion [for stay] by the full bench.” 7/19/17 Interim Order, at 2.

19

power, even when there has been no abuse of discretion as a matter of law by the

nisi prius court.” Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 52-53

(1999)(citing O’Connor v. Papertsian, 309 N.Y. 465, 471-72 (1956)). As the

Court of Appeals articulated in O’Connor:

It matters not that the granting of such conditional order would lie within the discretion of the trial court, for matters of discretion are reviewable by the Appellate Division. Since that court is a branch of the Supreme Court, whenever discretion is vested in “the supreme court” it may be exercised by the Appellate Division by way of a review of the action of Trial or Special Term, even though there has been no abuse of discretion by the lower branch of the court.

309 N.Y. at 471-72; see Andon ex rel. Andon v. 302-304 Mott St. Assocs., 94

N.Y.2d 740, 745 (2000)(recognizing that the Appellate Division may “substitute its

own discretion,” “even in the absence of abuse”).

ARGUMENT

I. SUPREME COURT LACKED THE AUTHORITY TO ENTER A CMO SUPERSEDING THE CPLR WITHOUT DEFENDANTS’ CONSENT

The New York State Constitution unambiguously declares that the power to

regulate court procedure rests exclusively with the Legislature:

The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised. The legislature may, on such terms as it shall provide and subject to subsequent modification, delegate, in whole or in part, to a court, including the appellate division of the supreme court, or to the chief administrator of the courts, any

20

power possessed by the legislature to regulate practice and procedure in the courts. The chief administrator of the courts shall exercise any such power delegated to him or her with the advice and consent of the administrative board of the courts. Nothing herein contained shall prevent the adoption of regulations by individual courts consistent with the general practice and procedure as provided by statute or general rules.

N.Y. Const. art. VI, § 30.

The New York State Legislature, in exercising its constitutional authority to

establish court procedure, requires that “[t]he civil practice law and rules shall

govern the procedure in civil judicial proceedings in all courts of the state and

before all judges, except where the procedure is regulated by inconsistent statute.”

CPLR § 101. Only the Legislature may supplement, amend or rescind the CPLR.

CPLR § 102; see also A.G. Ship Maint. Corp. v. Lezak, 69 N.Y.2d 1, 5-6

(1986)(under the New York Constitution, “the authority to regulate practice and

procedure in the courts is delegated primarily to the Legislature”). Thus, the

supreme court must follow the CPLR, which is the “rule book” governing the

conduct of judges and litigants in New York's unified court system. See, e.g.,

Siegel, N.Y. Practice § 3, at 3 (5th ed. 2011)(“The supreme court in New York . . .

is governed directly by the CPLR. It does not have an individual court act.”).

The Legislature’s clear intention was for the CPLR to standardize New

York’s civil practice. See Ling Ling Yung v. County of Nassau, 77 N.Y.2d 568,

571 (1991). The New York Court of Appeals and other New York courts have

21

consistently held that the courts cannot unilaterally modify the CPLR: “There is

no indication anywhere in the CPLR’s legislative history that the drafters intended

localities in which [the] Supreme Court sits to be able, in effect, to opt out of the

CPLR.” Id. at 572; see also People v. Mezon, 80 N.Y.2d 155, 158-59

(1992)(holding that courts could not dispense with written notice requirement of

CPL § 710.60 because courts may not exercise discretion in a manner that conflicts

with existing legislative command); People v. Jelke, 308 N.Y. 56, 67

(1954)(upholding reversal of the lower court’s order barring press and public from

attending a criminal trial, finding that order infringed the defendant’s statutory

right to a public trial);17 Hochberg v. Davis, 171 A.D.2d 192, 194-95 (1st Dep’t

1991)(discussed infra at 38-40); LaSalle Bank, N.A. v. Pace, 31 Misc.3d 627, 634-

36 (Sup. Ct., Suffolk Cty. 2011), aff’d, 100 A.D.3d 970 (2d Dep’t

2012)(determining that 22 NYCRR 202.12-a(f) was an ultra vires rule because it

imposed “additional, substantive requirements upon a plaintiff seeking the remedy

of foreclosure that are not contemplated by the statutes which now regulate

foreclosure actions,” including CPLR § 3408). Allowing a court to impose

17 In People v. Jelke, the Court of Appeals went on to observe:

Although the trial judge was unquestionably actuated by the highest of motives, the conclusion is inescapable that his order excluding the public was not sanctioned by legislation, or otherwise authorized, and deprived defendant of a substantial right. Accordingly, as the Appellate Division held, defendant was entitled to a new trial without an affirmative showing of prejudice.

308 N.Y. at 67.

22

different requirements “would undermine the uniformity and compromise the

predictability of the CPLR.” Ling Ling Yung, 77 N.Y.2d at 572; see also 22

NYCRR 202.1(d) (noting that the provisions of Uniform Rules “shall be construed

consistent with the Civil Practice Law and Rules”).18

Moreover, it is axiomatic that a material deprivation of rights afforded by the

CPLR is a violation of that party’s constitutional right to due process. See

Westervelt v. Gregg, 12 N.Y. 202, 209 (1854)(“Due process of law [as used in

N.Y. Const. art. 1, § 6] undoubtedly means, in the due course of legal proceedings,

according to those rules and forms which have been established for the protection

of private rights.”); Traiger v. Sacks, 184 Misc. 955, 960 (N.Y. Mun.

Ct.), aff’d, 185 Misc. 540 (App. Term 1945)(“The assertion has been frequently

made that due process of law is law in its regular course of administration through

courts of justice and in accordance with the fundamental principles of free

government.”)(citing In re Barnes, 204 N.Y. 108 (1912), and other authorities).

Consistent with these principles, this Court has found that interests of

judicial expediency must give way when they impinge on a litigant’s substantive

18 Defendants brought the legal authorities cited in this Point I to Supreme Court’s attention via

written submission during the notice-and-comment period preceding issuance of the New CMO, which submissions were acknowledged and considered by Supreme Court in rendering its Decision. See R. at 359 (Decision 14). Nevertheless, the Decision does not address any of these authorities, instead relying on (i) the fact that the New CMO’s predecessors—which, as noted above, were on consent of the parties—also differed from the CPLR (R. at 350, 361), and (ii) Supreme Court’s position that Uniform Rule 202.69 empowered it to enter a CMO that supersedes the CPLR (R. at 363)—a position that Defendants respectfully submit is error, as explained infra Point II.

23

rights. In Herbert v. City of New York, this Court held that “the fundamental right

of a litigant . . . should not be frustrated by judicial resort to expedients, even when

a court’s use of expedients stems from its very legitimate concerns with calendar

control and the discouragement of excessive motion practice.” 126 A.D.2d 404,

406 (1st Dep’t 1987)(overturning lower court ruling refusing to memorialize

disclosure ruling requiring production of confidential information); see also Matter

of Grisi v. Shainswit, 119 A.D.2d 418, 421 (1st Dep’t 1986)(overturning lower

court decision precluding a litigant from submitting a written motion or making a

written record, thereby denying litigant’s appellate rights under CPLR 5701(a)).

The New CMO exceeds Supreme Court’s authority because it explicitly

states that it supersedes the CPLR, see R. at 302 (§ VI)(“Where this CMO’s

provisions differ from the CPLR’s, the CMO shall control.”), and it does in fact

abrogate Defendants’ fundamental rights under the CPLR (see infra Point III).

Nevertheless, when discussing proposals by certain defendants that would have

modified plaintiffs’ CPLR or other statutory rights, Supreme Court noted that it

had no authority to relax statutory provisions without the parties’ consent. For

example, Supreme Court concluded that it was not empowered to relax hearsay

rules to admit deposition testimony of non-parties for purposes of establishing fault

of other parties pursuant to Article 16, “in the absence of consent to the CMO by

the parties in NYCAL.” R. at 370. Supreme Court stated that it was limited by the

24

CPLR and Court of Appeals precedent. See R. at 369 (“I ultimately decided that I

did not have the power, in the absent consent [sic] of the parties, to relax hearsay

exceptions for deposition testimony. Of course, a settled defendant’s deposition

testimony can be admissible in certain circumstances for Article 16 purposes under

CPLR 3117(2). However[,] that section applies only to settled defendants, and

contains other requirements.”); R. at 369 (“Such broad-based consensus would be

necessary because the Court of Appeals has not looked favorably on any judge-

made attempts to expand hearsay exceptions.”).

Supreme Court thus was required to obtain the consent of the parties in

NYCAL before issuing the New CMO. Unlike the 1996 CMO, Defendants (as

other defendants in NYCAL and Plaintiffs) have withheld their consent and

objected to the New CMO. Accordingly, Defendants respectfully submit that the

New CMO is ultra vires, violates their right to due process, and should be vacated.

II. UNIFORM RULE 202.69 DOES NOT AUTHORIZE THE NEW CMO

Contrary to Supreme Court’s conclusion, Uniform Rule 202.69 furnishes no

basis for Supreme Court to have entered a New CMO that abridges Defendants’

CPLR rights without their consent. This is because (i) Uniform Rule 202.69 does

not permit the Coordinating Justices to issue CMOs that deprive litigants of their

CPLR rights without their consent, and (ii) even if NYCAL were a Uniform Rule

202.69 coordinated proceeding (it is not), the New CMO violates the Rule itself.

25

This Court’s 2015 Decision, relied upon by Supreme Court, is consistent with

these principles.

A. Uniform Rule 202.69 Does Not Authorize Ignoring the CPLR

Uniform Rule 202.69 furnishes no basis for imposing a CMO that deprives

the parties of CPLR rights without their consent. Indeed, the plain language of the

Rule demonstrates that it was never intended to abridge Defendants’ substantive

rights under the CPLR. For example, the Rule provides that the Coordinating

Justice has the authority to “appoint and define the roles of steering committees

and counsel of parties and liaison counsel, provided that the committees and

counsel shall not deprive any party of substantive rights.” 22 NYCRR

§ 202.69(c)(2). Likewise, the Rule provides that, while the Coordinating Justice

“may require that discovery in the cases coordinated pursuant to this section

proceed jointly or in coordination with discovery in the Federal or other states’

action,” he or she must do so in a manner that “respect[s] the rights of parties under

the Civil Practice Law and Rules.” Id. § 202.69(c)(3). And, regarding the

Coordinating Justice’s authority to “issue protective orders,” the Rule clarifies that

this authority is “pursuant to Article 31 of the Civil Practice Law and Rules.” Id.

No Uniform Rule (indeed, no rule promulgated by the Administrative Board

or the Chief Administrative Judge) can override the CPLR. See, e.g., LaSalle

Bank, 31 Misc.3d at 634-36. To the contrary, the Uniform Rules themselves

26

require that they be interpreted in a manner consistent with the CPLR. See 22

NYCRR 202.1(d) (the provisions of Uniform Rules “shall be construed consistent

with the Civil Practice Law and Rules”).

B. The New CMO Violates Rule 202.69

The New CMO runs afoul of Uniform Rule 202.69 itself. For example, the

New CMO’s provision that trial-ready NYCAL cases may be assigned to “one or

more trial parts in another county” (R. at 300, § IV), is contrary to the Rule’s own

venue provisions. Uniform Rule 202.69 requires that the order of the Litigation

Coordination Panel identify the specific “county or counties in which the

coordinated proceedings shall take place.” 22 NYCRR § 202.69(b)(4)(ii).

Thereafter, the Coordinating Justice’s authority to change of venue is limited to

“remand[ing] to the court of origin any portion of a case not properly subject to

coordination under the administrative order of the Panel.” Id. § 202.69(c)(2). The

Rule thus does not invest the Coordinating Justice with the power to create new

venues for cases. Even if Administrative Transfer Order 276 (described supra at

8) could be considered analogous to an order of a Litigation Coordination Panel, it

unequivocally required that NYCAL cases “be heard and disposed of by trial or

other means in the Supreme Court, First Judicial District, County of New York.”

In turn, the New CMO provisions regarding venue for trial conflict with

those of Uniform Rule 202.69. Coordination under Uniform Rule 202.69 applies,

27

by its terms, only to “pretrial proceedings, including dispositive motions.” 22

NYCRR § 202.69(a). At the conclusion of such pretrial proceedings, the

coordination is to be terminated, either sua sponte or upon motion, and “the actions

shall be remanded to their counties of origin for trial unless the parties to an action

consent to trial of that action before the Coordinating Justice.” Id. § 202.69(d).19

The New CMO, however, turns Uniform Rule 202.69’s trial venue scheme on its

head by forcing all New York City cases to be filed in New York County and

empowering the justice supervising NYCAL to assign cases for trial “to one or

more trial parts in [New York County or] another county,” even if that county is

not where the case otherwise would have been filed and even if the parties do not

consent. See R. at 300 (§ IV).

C. NYCAL is Not a Uniform Rule 202.69 Coordinated Proceeding

Uniform Rule 202.69(b)(2) provides that, when related actions are pending

in more than one judicial district, a Litigation Coordinating Panel, after providing

notice and an opportunity to be heard for all parties to actions may appoint a justice

or justices to coordinate those actions. These procedures were never followed in

19 See also David Fleischer & Jodi Kleinick, Coordinating Multidistrict Cases in State Courts,

N.Y.L.J., Dec. 1, 2003, available at https://www.paulhastings.com/Resources/Upload/Publications/619.pdf (“The joinder [under Uniform Rule 202.69] generally begins before or during discovery and continues until discovery has been completed and any dispositive motions are decided; the individual actions are then returned to their original venues for trial unless the parties stipulate otherwise.”).

28

NYCAL and no one has ever been appointed by the Uniform Rule 202.69 panel as

the Coordinating Justice for NYCAL.

Indeed, it is indisputable that NYCAL was not created pursuant to Uniform

Rule 202.69. The Rule became effective on January 24, 2002, more than 14 years

after NYCAL came into existence. The process that was used to create NYCAL in

no way corresponded with the formation requirements of the Rule: as noted above,

NYCAL was created pursuant to an October 23, 1987 administrative order of the

Hon. Milton L. Williams, then-Deputy Chief Administrative Judge for the Courts

of the City of New York.20 Administrative Transfer Order 276 states that the

Deputy Chief Administrative Judge formed NYCAL pursuant to his own authority,

and not that of a Litigation Coordinating Panel. See Administrative Transfer Order

276, supra (“Pursuant to the authority vested in me, I hereby direct that all asbestos

related cases in which Requests for Judicial Intervention have been filed, or are

hereafter filed, in the Supreme Court within the City of New York, be heard and

disposed of by trial or other means in the Supreme Court, First Judicial District,

County of New York.”).

D. Supreme Court Misconstrued the Impact of this Court’s 2015 Decision Regarding the Application of Uniform Rule 202.69

In the Decision, Supreme Court states that Defendants’ assertion that

Uniform Rule 202.69 does not apply to NYCAL is precluded by this Court’s 2015

20 See supra at 8.

29

Decision. Specifically, Supreme Court reasoned that because (i) certain defendants

made similar arguments in their motion (leading up to the April 2014 Order)

seeking to vacate the CMO if the CMO were to be amended to end the punitive

damages deferral, (ii) Justice Heitler in the April 2014 Order rejected those

arguments and denied the motion, and (iii) this Court affirmed the portion of the

April 2014 Order that denied those defendants’ motion to vacate, it is now

“binding precedent” that the NYCAL supervising justice may issue a CMO that

deprives defendants of CPLR rights. See R. at 362 (Decision 17).

Defendants respectfully submit that this reasoning is invalid for at least two

reasons.

First, Justice Heitler ruled that Uniform Rule 202.69 conferred on her the

authority to amend the CMO, to end the deferral of punitive damages claims,

without these defendants’ consent. See In re N.Y.C. Asbestos Litig., 2014 WL

10714009, at *7 & n.24 (citing 22 NYCRR § 202.69(c)(2)). It was this specific

ruling—because Justice Heitler made no other changes to the NYCAL CMO—in

this specific context, that this Court affirmed in its 2015 Decision. See In re N.Y.C.

Asbestos Litig., 130 A.D.3d at 490 (“The motion court had the authority to modify

the CMO.”).21

21 Supreme Court’s power under the CPLR to defer or permit punitive damages claims was not

really in dispute. R. at 461, 463 (Gadaleta v. AC&S, Inc., Index No. 110739/02, at 1, 3 (Sup. Ct., N.Y. Cty. Sept. 22, 2004))(noting that “[t]his matter was commenced under the existing

30

This Court never discussed Defendants’ attempt to withdraw their consent to

the amended CMO or whether, without Defendants’ consent, a CMO could be

issued that violated Defendants’ CPLR rights. The reason is clear. The

Defendants stated that they would withdraw their consent to an amended CMO that

did not include the deferral of punitive damages and stated that they had done so

when she amended the CMO. See In re N.Y.C. Asbestos Litig., 2014 WL

10714009, at *7-8 (“I acknowledge that the Defendants no longer wish to consent

to the CMO if counts for punitive damages are not barred.”). This Court, however,

mooted the issue of the effect of the withdrawal of consent to the amended CMO

(and thus the issue of depriving the Defendants of their CPLR rights without their

consent) when it stayed the order removing the deferral and ordered that whether

punitive damages should be allowed be reconsidered or procedural safeguards be

put in place. The 2015 Decision therefore did not have to address the effect of the

withdrawal—and it did not. That is why one searches the 2015 Decision in vain

for a discussion of whether the CMO deprives defendants of CPLR rights and

whether a CMO that abrogated defendants’ CPLR rights could continue without

Asbestos Case Management Order (‘Asbestos CMO’) which directs a deferral of punitive damages claims, as is permitted by CPLR § 603,” and “declin[ing] to break this admirable course” of “extreme expedition” in a case that “has reaped all the benefits of treatment as an asbestos case . . . and . . . remains subject to the well-known and established limitations of the existing asbestos CMO”). Indeed, the CMO permitted punitive damage claims to be made in individual cases if permitted by the court on motion.

31

Defendants’ consent. Although the 2015 Decision cites Uniform Rule 202.69, this

Court likewise did not address how or whether that rule actually applied.

Second, it appears that, when Supreme Court used the term “binding

precedent” in relation to this issue, it was invoking the law-of-the-case doctrine,

given that both the April 2014 Order and the New CMO pertain to the same master

proceeding—NYCAL. See People v. Evans, 94 N.Y.2d 499, 502 (2000)(“[L]aw of

the case has been aptly characterized as ‘a kind of intra-action res

judicata.’”)(quoting Siegel, New York Practice § 448, at 723 [3d ed.]). The Court

of Appeals has made clear, however, that the law-of-the-case doctrine “is found in

no New York statute” and is not a “rigid rule of limitation,” but rather is a

“judicially crafted policy,” which “directs a court’s discretion, but does not restrict

its authority.” Id. at 503 (quoting Arizona v. California, 460 U.S. 605, 618

(1983))(internal quotation marks omitted). Accordingly, it is incorrect to

characterize prior rulings on this issue as “binding precedent.”

* * *

In sum, there is no basis in Uniform Rule 202.69, or prior judicial decisions,

to support the New CMO’s curtailment of the protections afforded Defendants

under the CPLR without their consent, particularly now that Defendants face

punitive damages claims.

32

III. THE NEW CMO DEPRIVES DEFENDANTS OF THEIR RIGHTS UNDER THE CPLR WITHOUT THEIR CONSENT

This Court has recognized that due process rights are particularly important

where punitive damages are implicated. See Heller v. Louis Provenzano, Inc., 303

A.D.2d 20, 23 (1st Dep’t 2003)(explaining that a defendant confronting claims that

it has acted in a wanton fashion with criminal indifference to civil obligations must

be given an opportunity to understand just what acts the plaintiff contends

demonstrate such a level of culpability, establish norms and practices at the time,

establish remedial efforts, and develop other exculpatory evidence considering the

particulars of the plaintiff’s claim). Thus, this Court made clear when it struck

down the April 2014 Order, that if punitive damages are to be reimposed, then

sufficient “procedural protocols” must be implemented to safeguard Defendants’

due process rights and allow them to defend those punitive damages claims. See In

re N.Y.C. Asbestos Litig., 130 A.D.3d at 490.

The New CMO, however, impermissibly deprives Defendants of numerous

substantive CPLR/due process rights, as detailed below, while eradicating a

principal benefit of the 1996 CMO—the deferral of punitive damagesall without

Defendants’ consent. Furthermore, having taken away Defendants’ fundamental

rights, the New CMO did and could not include procedural protocols—which this

Court directed Supreme Court to develop—sufficient to allow Defendants properly

to defend punitive damages claims. Indeed, unlike the CMO, the New CMO

33

explicitly states that its provisions trump the CPLR and thus it deprives Defendants

of material due process rights guaranteed by the CPLR and other New York laws.

The New CMO also contains provisions that the CMO did not, divesting

Defendants of yet additional rights. This means that Defendants are being severely

handicapped in their ability to defend themselves against Plaintiffs’ claims, while

at the same time facing the risk of punitive damages that potentially threaten

Defendants’ viability.22

A. Non-particularized Pleadings

CPLR § 3013 requires that “[s]tatements in a pleading shall be sufficiently

particular to give the court and parties notice of the transactions, occurrences, or

series of transactions or occurrences, intended to be proved and the material

elements of each cause of action or defense.” A plaintiff is required to make “plain

and concise statements in consecutively numbered paragraphs,” each of which

shall contain a single allegation. CPLR § 3014. Under the CPLR, a party may

amend his or her pleading without leave of the court only in explicitly delineated

circumstances: within 20 days after its service, but only once; at any time before

the period for responding to it expires; or within twenty days after service of a

pleading responding to it. CPLR § 3025. 22 “More than 100 companies have gone bankrupt at least in part from asbestos lawsuits, and the

number keeps rising. Research Brief, Bankruptcy Trusts Complicate the Outcome of Asbestos Lawsuits, available at https://www.rand.org/content/dam/rand/pubs/research_briefs/RB9800/RB9830/RAND_RB9830.pdf.

34

In contrast, the New CMO eliminates Plaintiffs’ CPLR burden of pleading.

Specifically, the New CMO provides:

Plaintiffs’ counsel shall e-file in the NYCAL Master File a set of complaints containing standard allegations generally applicable to all claims of a similar nature. Thereafter, plaintiffs shall, to the maximum extent feasible, serve and e-file a short form complaint which incorporates by reference all allegations contained in the appropriate standard complaint.

R. at 302-304 (§ VII.A). In addition, Plaintiffs are permitted to amend their

complaints without further leave of court. R. at 304 (§ VII.B)(although the

amendment of a complaint may result in a plaintiff’s case being assigned to a

different trial cluster).

The result of the standard, short-form complaint is that Defendants do not

know the basis for the claims against them. In fact, Defendants often do not even

know if they are a party to the case. Consequently, oftentimes, the first time a

Defendant knows whether a Plaintiff has a claim against them is when the Plaintiff,

during his or her deposition, testifies that he or she had exposure to asbestos

because of a product made or sold by that Defendant. R. at 734. This lack of

specificity and failure to provide even the most basic notice about Plaintiffs’

claims puts Defendants at a tremendous disadvantage, which is exactly why the

CPLR requires that a complaint explain the basis for a claim.

35

The New CMO’s abrogation of the CPLR’s particularized pleading

requirement is particularly egregious because Defendants are now facing punitive

damages claims and therefore need to understand the basis for those and other

claims they face at the outset so that they can settle upon an appropriate strategy

and seek necessary discovery. The requirement in the New CMO that, if a punitive

damages claim is to be pursued, it must be set forth in the complaint (R. at 304-

305, § VII.C) is of no assistance to Defendants because Plaintiffs’ counsel already

assert punitive damages claims in every NYCAL complaint. R. at 854. Under the

New CMO, as under the old CMO as amended by the April 2014 Order,

Defendants continue to be deprived of critical pleading disclosure regarding

punitive damages claims.

B. Court-Ordered Appointment and Compensation of a Special Master

CPLR § 3104 permits an attorney to serve as a referee to “supervise all or

part of any disclosure procedure,” but only if all parties “stipulate that a named

attorney may act as referee [and that] [i]n such a latter event, the stipulation shall

provide for payment of his fees.” As Supreme Court acknowledged in the April

2014 Order, Defendants cannot be compelled to employ and compensate an

attorney as Special Master. In re N.Y.C. Asbestos Litig., 2014 WL 10714009, at *7

(“I do understand that I cannot compel either side to pay for a Special Master. But

from the beginning of this litigation both sides have retained a Special Master and

36

recognized the value to them of the Special Master’s services. It is this court’s

hope that the parties will continue on this course to their mutual benefit.”). Yet,

the New CMO does just that. See R. at 298-99 (§ III.D)(“Plaintiffs and defendants

shall each pay 50% of Rossi, LLP’s fee.”).

The New CMO incorrectly recites that the Special Master is appointed “on

consent of counsel.”23 Appointment of a Special Master was never agreed as part

of the entry of the New CMO. Rather, as Defendants’ representatives consistently

maintained throughout the negotiating process before Supreme Court, any revised

CMO was to be a “package deal” and Defendants’ consent to the use and private

funding of a Special Master in derogation of the CPLR was contingent upon

reaching a fully consented to CMO. See, e.g., R. at 743, 747 n.13 (“Defendants

would agree to the continued appointment of the Special Master for a limited

period were the Court to continue the 1996 CMO as written, but do not agree that

the Court, with the assent of liaison counsel has the power to appoint the Special

Master absent Defendants’ explicit consent.”). Supreme Court itself acknowledged

this contingent aspect of Defendants’ bargaining position, when circulating its

September 26, 2016 draft, observing that “there is no agreement until there is

complete agreement.” R. at 1278 (9/26/16 e-mail from Hon. Peter H. Moulton to

the plaintiffs’ and defendants’ CMO representatives).

23 The NYCAL defendants’ liaison counsel were never empowered by all defense counsel to

consent to the appointment of a Special Master. See R. at 747 n.13.

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While Defendants agreed in the 1996 CMO to the expedited and highly

informal disclosure regime overseen by the Special Master, in reliance upon the

assurance that they would no longer need to defend against the fundamentally

“different dimension of liability” presented by punitive-damages claims,

Defendants have understandable reasons to withhold their agreement to the New

CMO, as detailed in the following subsection. See In re N.Y.C. Asbestos Litig.,

130 A.D.3d at 490.

C. Restricted Motion Practice Under Special Master Regime

The NYCAL Special Master regime is already unworkable and unjust in the

present environment, and it will become even more so if punitive damages return.

Under the current CMO, the Special Master regularly issues rulings informally—

via e-mail or over the telephone—and only to the specific parties that are involved

in motion practice before the Special Master. This casual approach is not only

contrary to CPLR 3104(c) (requiring that requests for relief from a referee be made

by application or motion “returnable before the judge or referee”), but it engenders

prejudice because (i) other parties (usually, Defendants) do not receive timely

notice of the Special Master’s rulings (or any notice at all), (ii) Defendants often

are unable to create an appellate record of the Special Master’s rulings, thereby

frustrating the review process explicitly provided for under the CPLR, and (iii)

38

there is no precedent to guide the NYCAL litigation and limit future disputes.24 R.

at 744 (4/19/17 Letter from E. Leo Milonas, Peter J. Dinunzio, Robert C. Malaby,

and Suzanne M. Halbardier to Hon. Peter H. Moulton, at 7).

Unfortunately, the New CMO does nothing to remedy, and instead

perpetuates this disorganized situation in violation of the CPLR. The New CMO

merely requires that, upon receipt of an e-mail from a party providing notice of its

intent to raise an objection to the Special Master’s ruling, “the Special Master shall

promptly reduce the recommended ruling to writing,” with nothing more. R. at

298 (§ III.C). This vague language would allow the Special Master to continue

issuing informal rulings via e-mail, and even then, only to the parties who either

requested or objected to the discovery at issue, leaving other parties who may have

an interest in the requested discovery—but simply do not know about it—in the

dark.

Hochberg v. Davis is instructive as to why the New CMO’s limitations on

motion practice are impermissible. There, this Court held that courts may not set

rules prohibiting a party from engaging in motion practice, and that doing so

violated a party’s fundamental CPLR rights. In that case, the motion court

24 See CPLR § 3104(d) (“Review of order of referee. Any party or witness may apply for review

of an order made under this section by a referee. The application shall be by motion made in the court in which the action is pending within five days after the order is made. Service of a notice of motion for review shall suspend disclosure of the particular matter in dispute. If the question raised by the motion may affect the rights of a witness, notice shall be served on him personally or by mail at his last known address.”).

39

established motion calendar “rules” requiring that a party obtain court permission

before filing any motion. 171 A.D.2d 192, 193. The litigants, pursuant to those

rules, sought the court’s permission to file a motion, which was denied. Id. The

litigants nevertheless filed their motion, which also was denied, in part, due to non-

adherence to the motion calendar rule requiring permission before filing the

motion. Id. at 194. This Court reversed, rescinding the trial court’s motion

calendar rules requiring judicial consent to make a motion. It reasoned:

Even though the practice of conditioning the making of motions on prior judicial approval may, in some instances, discourage the filing of frivolous motions, it may also prevent a party from exercising the option to move for relief to which he or she may be entitled. ‘A judge shall accord to every person who is legally interested in a matter, or his or her lawyer, full right to be heard according to law’ (22 NYCRR 100.3[a][4]). … Denying a party permission to engage in motion practice hinders the performance of counsel who are encouraged and, in fact, are required to be zealous in their representation of their clients (Code of Professional Responsibility EC 7-1).

Id. at 195.

As in Hochberg, the Special Master regime established by the New CMO

limits Defendants’ right to engage in motion practice and to make a written record,

contrary to CPLR § 3104(c) (requiring that applications to a referee be made on

motion) and CPLR 2214 (requiring service and notice for motion papers).

Moreover, the New CMO will make the current situation even worse: given that

40

the New CMO expands the Special Master’s powers beyond those of a referee

appointed to “supervise disclosure” under CPLR § 3104, to now encompass

fundamental issues like notes of issue, see R. at 313, 330 (§ IX.O, XX.B), and

summary judgment, see R. at 331-32 (§ XXII.B), Defendants’ substantive rights

are further imperiled. This situation is only made more acute by the reintroduction

of punitive damage claims.25

D. Minimal Discovery

The CPLR provides that “[t]here shall be full disclosure of all matter

material and necessary in the prosecution or defense of an action, regardless of the

burden of proof.” CPLR § 3101(a). Recognizing the importance of this principle,

this Court has ruled that courts may not accelerate trial in a manner that deprives

parties of their fundamental right to discovery. In Lipson v. Dime Sav. Bank, FSB,

203 A.D.2d 161 (1st Dep’t 1994), for example, this Court held that a court may not

summarily schedule cases for trial prior to the completion of discovery. Id. at 162.

There, the trial court set a contract dispute for trial prior to the completion of

25 The process by which wrongful death settlements receive court approval provides another

clear example of how the existing Special Master regime prejudices Defendants. Defendants believe that the Special Master has also been approving as many as 750 adequacy orders and 200 allocation orders per month on an ex parte basis, without providing any notice to Defendants, in violation of CPLR § 2214 (requiring that parties receive notice of the time and place where the motion shall be heard), CPLR 2219 (orders shall be signed by a judge), and CPLR 2220(b) (requiring that copies of any order be served on parties). When Plaintiffs avoid notifying remaining Defendants of the orders approving their co-defendants’ settlements and routinely fail to disclose the Special Master’s execute orders, it suppresses access to material information that is critical for Defendants to evaluate the prospects of settlement.

41

depositions or written discovery, and over plaintiff’s counsel’s protests that

discovery was incomplete. Id. This Court reversed the decision setting the case

for trial, observing that while “[i]t is true that each court has inherent power to

control its own calendar and the disposition of business before it . . . no matter how

pressing the need for disposition of cases, the court may not deprive the parties of

the fundamental rights to which they are entitled.” Id.

The New CMO, however, forces Defendants to trial without full discovery.

The New CMO allows only for “Standard Consolidated Discovery” (R. at 307-313,

§ IX), which greatly restricts many CPLR rights, including limiting the number

and method of depositions defendants may take, and the use of and right to object

to interrogatories. Having full and complete discovery is vital for Defendants

facing punitive damages claims (as those claims must be particularized as to the

circumstances of each plaintiff)26 so that Defendants will understand the basis for

such claims in each case and thus able to defend themselves.

26 See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 423 (2003)(“A defendant

should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.”); accord Heller, 303 A.D.2d at 23 (explaining that a defendant confronting claims that it has acted in a wanton fashion with criminal indifference to civil obligations must be given an opportunity to understand just what acts the plaintiff contends demonstrate such a level of culpability, establish norms and practices at the time, establish remedial efforts, and develop other exculpatory evidence in light of the particulars of plaintiff’s claim).

42

1. Restricted Use of Interrogatories

The New CMO severely restricts the use of interrogatories. CPLR § 3130

provides that, after the commencement of an action, “any party may serve upon

any other party written interrogatories,” which, under CPLR § 3131, “may relate to

any matters embraced in the disclosure requirement of section 3101 and the

answers may be used to the same extent as the depositions of a party.”27

Under the New CMO, in contrast, Plaintiffs must provide answers to a

“standard joint set of interrogatories” developed by Defendants and applicable to

all cases. R. at 309 (§ IX.B). Plaintiffs’ interrogatories to Defendants are also

standardized, though may not be limited to a single set. Indeed, the New CMO

indicates that Plaintiffs may be able to carry forward the previous practice, under

the 1996 CMO, of serving multiple sets of interrogatories designed to obtain

general liability information tailored to various types of defendants. See R. at 308

27 The new CMO also alters CPLR § 3133’s requirement that each interrogatory be answered

“except to one which the party objects.” In contrast, the New CMO eliminates Defendants’ right of objection and mandates instead that interrogatories be answered “fully and substantially . . . though well-taken objections may be raised with the Special Master.” R. at 309 (§ IX.E).

Defendants and plaintiffs originally agreed to standardized interrogatories as a cost-saving measure. However, in practice the plaintiffs’ bar has often seized on the inability to object to procure sweeping discovery orders, threatening defendants with substantial compliance costs that could have been reduced or avoided altogether had defendants retained their right to object under the CPLR. In one such case, a NYCAL defendant was ordered to produce over 12 million documents within 60 days, and to bear the entire cost of production. In re All Weitz & Luxenberg Cases in Which Cleaver-Brooks, Inc., Nos. 190441/12, 40000/88, 2014 WL 7208656 (Sup. Ct., N.Y. Cty. Dec. 15, 2014) (Heitler, J.).

43

(§ IX.C)(referencing the “applicable standard set of interrogatories” to a

defendant).

In addition to carrying over certain provisions from the CMO mandating the

use of standard interrogatories, the New CMO also imposes new rules regarding

the use of those interrogatories. While Supreme Court characterized these new

provisions as a “benefit” to assist Defendants in admitting Article 16 evidence at

trial, Supreme Court has, in effect, rewritten New York’s hearsay rules in a way

that will make standard interrogatory responses of settled co-defendants largely

inadmissible.

Admittedly, the New CMO broadens the use of interrogatories in the

following two specific ways:

Answers by nonparties of NYCAL standard sets of interrogatories may be used at trial to prove 1) that a product or products of the nonparty contained asbestos, or that asbestos was used in conjunction with the nonparties’ product or products, and 2) any failure to warn by the nonparty concerning an asbestos containing product and/or the use of asbestos in association with a product.

R. at 319 (§ XIII.A). Supreme Court, in fashioning this provision, stated that it

made a conscious effort to put Plaintiffs and Defendants on a more even footing.

See R. at 367-68 (Decision 22-23). The very narrow scope of this provision,

however, limits its beneficial impact and, when combined with the New CMO’s

reclassification of settled defendants as “nonparties” (R. at 319), will have a

44

broadly negative impact. Defendants will be restricted in their use of settled

defendants’ interrogatory responses in a manner contrary to the plain language of

CPLR § 3131, its legislative history, and applicable case law.

Under CPLR § 3131, “answers [to interrogatories] may be used to the same

extent as the depositions of a party.” Accordingly, interrogatory responses, like

deposition testimony, may be used “so far as admissible under the rules of

evidence.” CPLR § 3117(a). While the introduction of “[t]he self-serving answers

of a party to written interrogatories” may be precluded as hearsay, this is only

“where the party responding is the proponent” at trial. United Bank, Ltd. v.

Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 264 (1976). If the party

responding to the interrogatories is not the proponent, however, then “the hearsay

problem is eliminated because the answers are admissible under the admissions

exception to the hearsay rule.” Id. This rule is codified in amended CPLR § 3117,

which provides that deposition testimony of “any person who was a party when the

testimony was given” may be used “by any party who was adversely interested

when the deposition testimony was given or who is adversely interested when the

deposition testimony is offered in evidence.” CPLR § 3117(a)(2); accord Fed. R.

Evid. 801(d)(2) (providing that an out-of-court admission by an “opposing party”

is not hearsay); Fed. R. Evid. 804(b)(3) (creating a hearsay exception for

statements against interest).

45

Indeed, the Memorandum of the Assembly Rules Committee contained in

the Bill Jacket for the 1996 amendment to CPLR § 3117 (effective 1997) confirms

that the Legislature intended that the amendment would render admissible the

deposition testimony or interrogatory responses of settling defendants. The Bill

Jacket explains the state of the law before the amendment:

Thus, if the proponent were adversely interested to the deponent when the deposition was taken, and if the deponent (or the deponent’s employer) subsequently settled, the deposition then could not be introduced pursuant to subdivision (a)(2), either by plaintiff or by anyone else, since none of the remaining parties then would now be adverse to the deponent settlor. . . . The same would presumable apply if the party deposed thereafter obtained summary judgment prior to the trial of the action.

See Mem. of Assembly Rules Comm., Bill Jacket, L.1996, ch. 117, available at

http://digitalcollections.archives.nysed.gov/index.php/Detail/Object/Show/object_i

d/34738 (original emphasis omitted). The Bill Jacket then explains the reason for

the change:

This rule, limiting use of the depositions of formerly adverse parties, is undesirable in two respects. It often deprives the trier of fact of reliable evidence, inasmuch as the proof, if reliable in the first place, is surely no less reliable merely because the deponent (or deponent’s employer) subsequently settled or obtained summary judgment. The evidentiary rule also may deter settlement: a party (e.g., plaintiff) who wants to rely upon a defendant’s deposition testimony at trial may be deterred from settling with that defendant since such

46

course would prevent plaintiff from then utilizing that deposition testimony at trial.

Id. (original emphasis omitted). Finally, the Bill Jacket explains the impact of the

amendment:

By its provisions, the deposition would become admissible pursuant to subdivision (a)(2) upon application of a party who was adverse to deponent (or adverse to the party for whom the deponent appeared) as of the date of the deposition. Post-deposition settlement of the deponent (or of the deponent’s employer) would no longer bar admission of the deposition.

Id.

Here, the standard interrogatory responses of settled co-defendants fall

within CPLR § 3117(a)(2)’s hearsay exception for admissions of adverse parties

and should ordinarily be admissible for any purpose. As co-defendants in these

cases, the remaining defendants’ interests will have been adverse to those of the

settling defendants with respect to apportionment of fault under Article 16 (or the

analogous rule of law). This is plainly a situation where the adverse-party

exception to the hearsay rule, articulated in United Bank and codified in CPLR

§ 3117(a)(2), applies and the remaining defendants should have the right to use the

interrogatories for any purpose, not just for the few specific purposes set forth in

the New CMO. Moreover, by reclassifying settled defendants from an “opposing

party” to a “non-parties”, the New CMO, effectively repeals the hearsay exception

47

enacted by the legislature in amended CPLR 3117(a)(2)—that rule provides no

exception for non-party depositions or interrogatories.

2. Limited Depositions

Pursuant to CPLR § 3106, after an action is commenced, “any party may

take the testimony of any person by deposition upon oral or written questions.” In

contrast, the New CMO severely restricts the depositions that defendants may take.

Specifically, the New CMO limits defendants’ depositions to “plaintiff, plaintiff’s

spouse, and up to four co-workers, unless plaintiff intends to call more than those

four co-workers at trial.” R. at 316 (§ XI.D).

Defendants consented to limitations on the number of depositions in the

1996 CMO because the hazards associated with their thermal insulation products

were well known and liability was all but conceded. The major issues at trial were

typically damages and allocation of fault. The New CMO continues to include this

restriction. In addition, to reduce repetitive deposition-taking, the 1996 CMO (and

New CMO) contain provisions allowing for the liberal use by Plaintiffs of

discovery from other cases, above and beyond what the CPLR would provide.

Both CMOs eliminate the use of depositions on written questions (compare CPLR

§ 3108 with R. at 375-76, § XI.A) and the New CMO effectively requires

Defendants to travel to the location where the Plaintiff lives, rather than holding

the deposition in New York County was would normally be the case. (R. at 315,

48

§ XI.B). The latter provision is particularly a problem because Plaintiffs’ counsel

regularly refuse to stipulate to telephonic participation in Plaintiffs’ depositions.

Defendants therefore are forced to travel to depositions because they cannot tell

from the complaint whether the Plaintiff is asserting they were responsible for the

Plaintiff’s injury. If a Plaintiff identifies a Defendant at the deposition, but the

Defendant does not attend, the Defendant will lose its sole opportunity to cross-

examine the Plaintiff.

Unlike the claims brought against the now-bankrupt defendants of the 1990s,

today’s litigation involves increasingly tenuous exposures where liability is hotly

contested. As a result, the prohibition on Defendant’s right to take depositions not

only deprives them of their CPLR rights, but violates their due process rights by

preventing them from conducting a fair trial and defending against punitive

damages claims.

E. Clustering/Retention of Trial Preferences

The New CMO’s provision that, “[t]o be eligible for inclusion in an

Accelerated Trial Cluster, a plaintiff must be alive and have a pending lawsuit at

the time of the application,” is in practice inconsistent with CPLR §3403(a)(6).

See R. at 323-24 (§ XV.A). Plaintiffs’ bar, through a process known colloquially

as “cherry-picking,” has manipulated the clustering system in a way that

systematically prefers deceased claimants’ cases over those of the living, in

49

violation of CPLR § 3403(a) (“Civil cases shall be tried in the order in which notes

of issue have been filed”) and CPLR § 3407 (requiring that, in personal injury

actions involving certain terminally ill parties, “the action receive a preference in

trial, and that the trial be commenced within one year”). The flexibility given the

Plaintiffs’ bar in the New CMO allows them to continue to exercise unfettered

discretion to strategically advance their most profitable casesand not to ensure

that the most exigent cases proceed to early trialall in violation of the CPLR and

the interest of providing justice to all litigants.

Taken as a whole, the clustering perpetuated by the New CMO

systematically contravenes CPLR § 3403 and § 3407 by giving trial preference to

deceased claimants’ cases over those of terminally-ill plaintiffs and by regularly

allowing those cases to reach trial before cases with earlier filed notes of issue.28

The clustering system’s persistent favoritism of non-preferential cases is also borne

out by recent NYCAL trial statistics, which reveal that of 28 Plaintiffs whose cases

have proceeded to trial since the beginning of 2013, the majority of those plaintiffs

28 Under the New York Rules of Court for the Supreme Court, trial courts are encouraged to set

aside trial preferences that are no longer appropriate. See 22 NYCRR § 202.24(d)(“Result of Preference Being Granted. If a preference is granted, the case shall be placed ahead of all nonpreferred cases pending as of that date, unless the court otherwise orders.”); id. § 202.25(b)(“In any action which has been accorded a preference in trial upon a motion, the court shall not be precluded, on its own motion at any time thereafter, from ordering that the action is not entitled to a preference under these rules.”). Thus, for example, if a plaintiff was initially entitled to a trial preference under CPLR 3403(a)(6) because she was alive when the preference was granted, the Rules of Court nonetheless allow the trial court to set aside that preference if the plaintiff dies before trial.

50

(17 of 28 Plaintiffs) were not living at the time of trial. R. at 744-45. Those same

28 cases took an average of 1.5 years to proceed to trial, and none of those cases

proceeded to trial within one year, as required by CPLR § 3407. R. at 745.

This unfair system can now be used by Plaintiffs’ counsel to manipulate the

schedule so that cases that present particularly favorable opportunities can be

brought to the fore and will facilitate putting pressure on “recalcitrant” Defendants

with going to trial on punitive damages claims. This is inconsistent with this

Court’s mandate to issue sufficient due-process protocols for punitive damages

claims.

F. Sanctions

CPLR §§ 3124 and 3126 provide that a party may be sanctioned for failing

to provide discovery only upon a finding that the failure was willful. In contrast,

the New CMO provides that “[a]nay failure to comply with a deadline in a

discovery order issued by the Special Master, unless excused by the Special Master

in writing within ten days . . . shall be deemed to be a willful failure to disclose

within the meaning of CPLR 3126.” R. at 329 (§ XIX). When coupled with the

New CMO’s provision preventing Defendants from objecting to standard

interrogatories, R. at 309 (§ IX.E), Defendants’ risk of being sanctioned is

substantially increased, thus exacerbating the impact of the sanctions provision.

51

Under the 1996 CMO, Defendants only consented to the increased risk of

sanctions because any sanction imposed would only affect a compensatory claim

and would not make them any more susceptible to punitive damages claims, which

the plaintiffs agreed to defer. This was a major concession by Defendants because

sanctions can greatly affect a Defendant’s substantive rights. For example,

sanctions may result in the determination of disputed issues (CPLR § 3126(1)), the

preclusion of relevant and admissible evidence (CPLR § 3126(2)), the striking of

pleadings, or the entry of judgment (CPLR § 3126(3)).

The New CMO impermissibly changes this equation without Defendants’

consent by rendering sanctionable even innocently missed deadlines, leaving

Defendants more vulnerable to punitive damages claims, without affording them

the benefit of the process due under CPLR § 3124 and CPLR § 3126.

G. The Bankruptcy Trust Disclosure “Loophole”

The New CMO fails to close a major “loophole” contained in the CMO’s

critically important bankruptcy trust disclosure requirement—a loophole that

routinely undermines Defendants’ Article 16 apportionment rights and prevents

Defendants from obtaining the disclosure to which they are entitled in the CPLR.

From the outset and throughout negotiations concerning a new consent-based

CMO, Defendants made clear the need to address ongoing gamesmanship by the

Plaintiffs’ bar under CMO § X.E.2.l when filing and disclosing (or more often, not

52

filing and concealing) bankruptcy trust claims.29 This ploy prevents full disclosure

about Plaintiffs’ asbestos exposure history—information that is indisputably

relevant in any NYCAL case. See Recommendation of Special Master Shelley

Rossoff Olsen dated March 12, 2013, available at

https://www.americanbar.org/content/dam/aba/administrative/tips/asbestos_tf/2014

/special-master-shelley-rossoff-olsen-poc-ruling.authcheckdam.pdf (citing Allen v.

Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 407 (1968), the special master

noted CPLR § 3101(a)’s applicability in connection with disclosure of trust

materials and observed “I am also constrained by the clear intent of CPLR Article

31, that ‘[t]here shall be full disclosure of all matter material and necessary in the

prosecution or defense of an action . . . .’”).

Under the 1996 CMO (§ X.E.2.l)(carried forward with some modifications

in New CMO § XXVI, R. at 336), a Plaintiff was required to file any “intended”

trust claims within 10 days of designation to a FIFO cluster or 90 days prior to trial

29 In their introductory correspondence with Justice Moulton, closing the trust disclosure

“loophole” was second among the major topics addressed by defendants, who advocated for the enactment of a “model CMO [that] calls for early filing with trusts, and permits defendants who believe additional trust claims are supportable to move the court for an order requiring plaintiff to file such claims.” R. at 935-37. Along the same lines, in a July 21, 2016 meeting with the Court, Defendants’ CMO negotiators submitted for the Court’s consideration draft trust disclosure rules (modelled after legislation passed in the State of Ohio) that would have prevented Plaintiff’s lawyers from strategically delaying the filing of trust claims. R. at 1372-75. Defendants’ representatives also submitted correspondence to the Court proposing improved transparency rules in August 2016. R. at 1245-76. The Court itself acknowledged that improving NYCAL’s bankruptcy disclosure rules was one of the five “biggest issues for potential trade off in negotiation.” See R. at 1278 (9/26/16 e-mail from Justice Moulton to the CMO negotiators).

53

in in extremis cases. A December 2012 decision of Supreme Court, however, has

allowed Plaintiffs to delay the filing of trust claims until after the conclusion of

civil litigation, thus escaping disclosure of “material and necessary” information

relating to their clients’ asbestos exposures. In practice, some Plaintiffs’ lawyers

have consistently and deliberately exploited this subjective “intend-to-file”

standard to allow them to delay filing trust claims indefinitely or to not file trust

claims at all until after the conclusion of civil litigation, a practice that one Federal

Bankruptcy judge described as “suppression of evidence” involving a “startling

pattern of misrepresentation.” In re Garlock Sealing Techs., LLC, 504 B.R. 71, 86

(Bankr. W.D.N.C. 2014).

Plaintiff lawyers’ effective exploitation of the bankruptcy trust disclosure

loophole by the manipulation and suppression of relevant information has

significantly prejudiced Defendants and infringed their constitutional rights to

defend themselves. Being deprived of this necessary disclosure has disadvantaged

Defendants tremendously in establishing their own equitable share of fault as well

as the equitable shares of other fault-sharers under CPLR § 1601. As a result,

while most trial defendants in NYCAL had minimal historic involvement with

asbestos (exactly the type of low-fault, deep pocket defendants Article 16 was

intended to protect), they nevertheless often receive a disproportionately greater

share of fault in NYCAL cases tried to a plaintiff’s verdict. There are also serious

54

post-verdict ramifications from allowing Plaintiffs to escape the requirement to

disclose “material and necessary” information relating to their asbestos exposures,

insofar as courts and juries are prevented from properly apportioning liability to

bankrupt entities, thereby depriving Defendants of the legally required setoff for

bankrupt entities’ equitable share of fault under the General Obligations Law. See

N.Y. Gen. Obligations Law § 15-108(a). Furthermore, settling defendants are

deprived of essential information, and thus are misled into settling at far greater

amounts than they would have had the bankruptcy trust information been truthfully

disclosed and an accurate Article 16 apportionment of equitable setoff been

factored into the settlement negotiations.

Supreme Court recognized that the subjective “intends to file” standard was

a problem, and added language to the New CMO requiring that, if a Plaintiff learns

of a bankruptcy trust claim for which the Plaintiff is “eligible to file” after certain

deadlines have passed, then that Plaintiff must report to the Court and any non-

settled defendant to explain why the claim was filed untimely. Unfortunately, this

attempted fix does not cure the problem. Learning of claims a Plaintiff was

“eligible to file” on the eve of trial gives the remaining defendants no opportunity

to conduct discovery into these additional exposures to develop admissible trial

evidence in support of an apportionment case. Settled defendants equally suffer,

55

having already settled at an inflated value based on a false and incomplete

exposure history.

Had the New CMO adopted the language suggested by Defendants, which

would have required the filing of “eligible claims” early in the discovery process, it

would have effectively closed the trust disclosure loophole. The New CMO,

however, leaves the gap wide-open, allowing Plaintiffs to continue gaming the

trust and tort systems by suppressing exposure information and delaying the filing

of bankruptcy trust claims that a Plaintiff lawyer “anticipates” but does not

subjectively “intend” to file, thereby undermining Defendants’ statutory

apportionment rights.

H. Death of a Plaintiff

The CPLR provides that, upon the death of a party, proper parties must first

be substituted before the action can proceed. See CPLR §§ 1015(a) and 1021 (“[I]f

the event requiring substitution is the death of a party, and timely substitution has

not been made, the court, before proceeding further, shall, on such notice as it may

in its discretion direct, order the persons interested in the decedent’s estate to show

cause why the action or appeal should not be dismissed.”).

The New CMO, in contrast, expressly provides that there will be “No Stay”

upon the death of a plaintiff: “The death of the plaintiff shall not automatically stay

discovery or other proceedings in the case. Either side may apply to the Special

56

Master for a stay, but there will be a presumption that there will be no stay because

of the death of the plaintiff.” R. at 338 (§ XXVIII(C)).

IV. THE NEW CMO PUNITIVE DAMAGES “PROTOCOL” IS VALUELESS

In sum, the New CMO severely limits Defendants’ CPLR rights. These

CPLR due process protections were conferred by the Legislature, and are

guaranteed by the Federal and New York State Constitutions, and cannot be

abridged by Supreme Court without Defendants’ consent. To the extent that

punitive damages claims in NYCAL are reactivated, the absence of these basic

protections contravenes this Court’s 2015 Decision requiring the development of

procedural protocols sufficient to safeguard Defendants’ due process rights. The

protocols the New CMO provides to Defendants for the defense of punitive

damages claims (requesting that Plaintiff consider whether they actually wish to

pursue pending punitive damages claims; bifurcating punitive damage

quantification from the liability trial; and not allowing joint trial of cases where

there are punitive damages claims) do not counterbalance the rights the New CMO

removes from Defendants (lack of particularized pleadings; a truncated

information dispute resolution process before a Special Master; significant

limitation on Defendants‘ discovery rights; facilitating the advancement of

Plaintiffs’ counsel’s preferred cases over in extremis Plaintiffs; relaxed sanction

standards; facilitating concealing Plaintiffs' claims against bankruptcy trusts; and

no stays on the death of a Plaintiff).

CONCLUSION

For the reasons stated above, Defendants respectfully request that this Court

vacate the New CMO and remand for entry of a new case management order that

either complies with the CPLR, or is consented to by all parties in NYCAL.

Dated: New Yorlc, New York September 5, 20 17

Respectfully submitted,

PILLSBURY WINTHROP SHAW PITTMAN LLP

By: 4~~ -E-.l~eo __ M_i-lo_n_a_s--~------------------

David G. Keyko Joshua I. Schlenger 1540 Broadway New York, NY 10036 Tel.: (212) 858-1000 E-mail: [email protected]

david.keyko@pillsbury law .com j oshua.schlenger@pillsbury law .com


CLYDE & CO US LLP ... ~\

By: 'fa&~. )) . u~~ Peter J.LP5inunzio The Chrysler Building 405 Lexington A venue, 16th Floor New Yorlc, New York 10174

57

Tel.: (212) 710-3900 Email: [email protected]

Attorney for Defendant-Appellant Jenkins Bros.

BARRY, McTIERNAN & MOORE, LLC

By:S~~~~ Su , e M. Halbardier Two Rector Street- 14th Floor New York, New York 10006 Tel.: (212) 313-3606 E-mail: [email protected]

Attorney for Defendant-Appellant John Crane, Inc.

[Signatures Continued on Following Pages]

58

AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP

By:~~~·~ Robert J. Chap ell 600 Third A venue New York, New York 10016 Tel.: (212) 593-6700 E-mail: [email protected]

Attorneys for Defendant-Appellant Mazda Motor of America, Inc. d/b/a Mazda North American Operations

AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP

By: ~ L PUWv<\_ Nancy L. Pe 1e . 600 Third A venue · New York, New York 10016 Tel.: (212) 593-6795 E-mail: [email protected]

Attorneys for Defendant-Appellant Ford Motor Company

59

AHMUTY, DEMERS & MCMANUS

By:~~fJ- ~ Frank A. Cecere 200 I.U. Willets Road Albertson, New York 11507 Tel.: (516) 294-5433 E-mail: frank. cecere@admlaw. com

Attorneys for Defendants-Appellants CoZart Americas, Inc., Ex-FM, Inc. f/k/a Fischbach & Moore, Inc., Thomas & Betts Corporation, Tishman Realty & Construction Co., Inc. n/k/a TTV Realty Holdings, Inc., Webster Plumbing Supply, Inc., Yuba Heat Transfer LLC, Wabash Power Equipment Company

BRACH EICHLER LLC

By<1/LQ;tJCU) 6~ Frances B. Stella Lindsay P. Cambron 101 Eisenhower Parkway Roseland, New Jersey 07068 Tel.: 973-228-5700 E-mail: [email protected]

LCambron@bracheichler .com

Attorneys for Defendant-Appellant Cushman & Wakefield, Inc.

BARRY, McTIERNAN & MOORE, LLC

By:~~ ~-IJJA~~ Suzann . Halbard1er Two Rector Street - 14th Floor New York, New York 10006 Tel.: (212) 313-3606 Email: [email protected]

Attorneys for Defendants-Appellants 84 Lumber Company, Blackman Plumbing Supply Co., Domco Products Texas Inc., Eli Lilly and Company, Fulton Boiler Works, Inc., H C. Oswald Supply Company, Inc., John Crane Inc., Kimberly-Clark Corporation, Matt Brewing Company, Inc., Mondelez International, Inc., Mule-Hide Products Co., Inc., R. W. Beckett Corporation, SPX Cooling Technologies, Inc., The Olympic Glove and Safety Company, Troy Boiler Works, Inc., Twin Disc, Inc., Whip Mix Corporation

CARUSO SMITH PICINI PC

o.rJ/1 .. By:~_,-.£:0'--- /l~t Lisa Massimi 60 us 46 Fairfield, New Jersey 07004 Tel.: (973) 667-6000 E-mail: [email protected]

Attorneys for Defendant-Appellant ASBEKA Industries of New York

60

CETRULOLLP

B~~G-~ Lawrence G. Cetrulo Jason M. Saul Hayley Kornachuk Two Seaport Lane, 1Oth Floor Boston, MA 02210 Tel.: (617) 217-5500 E-mail: [email protected]

[email protected] [email protected]

Attorneys for Defendant-Appellant PPG Architectural Finishes, Inc.

CLYDE & CO US LLP

By: f~ ,1· ~~d Peter J. DinJ~io C The Chrysler Building 405 Lexington A venue, 16th Floor New York, New York 10174 Tel.: (212) 710-3900 Email: [email protected]

Attorneys for Defendant-Appellant Jenkins Bros.

CLEMENTE MUELLER, PA

By:~,f~ William F. Mueller 43 West 43rd Street, Suite 156 New York, New York 10036-7424 Tel.: (212) 425-5005 E-mail: [email protected]

Attorneys for Defendant-Appellant The William Powell Company

CLYDE & CO US LLP

an The hrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 Tel.: (212) 710-3900 Email: [email protected]

Attorneys for Defendants-Appellants Morse Diesel, Inc., Mario & DiBona Plastering Co., Inc., and Curtiss-Wright Flow Control Corporation

61

CULLEN AND DYKMAN LLP

By:d~~-7, John . anm 44 Wall Street New York, New York 10005 Tel.: (212) 701-4142 E-mail: [email protected]

Attorneys for Defendants-Appellants National Grid Generation LLC d/b/a National Grid, The Brooklyn Union Gas Company d/b/a National Grid NY, Long Island Lighting Company d/b/a LIP A, Niagara Mohawk Power Corporation d/b/a National Grid, David Fabricators ofN Y., Inc., Howden North America, Inc., Spence Engineering Co., Inc., New York Power Authority, Goulds Pumps, Inc., AWC 1997 Corporationf/k/a Alpha Wire Corp., and Hennessy Industries

DARGER ERRANTE Y A VITZ & BLAULLP

By: J.~ 21;,~ . Jenrlrer WiC(); Darg~~ 116 East 27th Street, 12th Floor New York, New York 10016 Tel.: (212) 452-5300 E-mail: [email protected]

Attorneys for Defendants-Appellants Cooper Industries, LLC, Mine Safety Appliances Company, LLC, Lennox Industries Inc., Beazer East, Inc., f/k/a Koppers Company, Inc., Hopeman Brothers, Inc., Lightolier, Inc., Dana Companies LLC, Unilever United States, Inc., and Conopco, Inc.

62

LAW OFFICES OF DAVID L. FERSTENDIG, LLC

('

By: , _ . r:R/1/J~._j~l Davi . F erstendig U 280 Madison Ave, Suite 300 New York, New York 10016 Tel: (212) 213-1233 E-mail: dlf@ferstlaw. com

Attorneys for Defendants-Appellants Amsted Rail Company, Inc. and Baltimore Aircoil Company, Inc.

DOUGLAS J. MCKAY

. '2. ·~A By:1r~-/ftc~ Timothy M. cCann . 4 Irving Place New York, New York 10003-3598 Tel.: (212) 460-2164 E-mail: [email protected]

Attorneys for Defendants-Appellants Consolidated Edison Company of New York, Inc. and Orange and Rockland Utilities, Inc.

DELANY MCBRIDE, LLC

By:tJcfo- 9. ~ J oh:DeiaW, III. 80 Broad street- 5th Floor . New York, New York 10004 Tel: (888) 365-2988 E-mail: [email protected]

Attorneys for Defendants-Appellants Lehigh Gasket Company, Asten Johnson, Inc. (as successor in interest to As ten Hill Group, Inc.), and Ductmate Industries, Inc.

ECKERT SEAMANS CHERIN & MELLOTT, LLC

By: .u: .7. David Katzenstein Four Gateway Center, Suite 401 100 Mulberry Street Newark, New Jersey 07102 Tel.: (973) 855-4715 E-mail: dkatzenstein@eckertseamans .com

Attorneys for Defendants-Appellants AO Smith Water Products Company, Inc., Superior Lidgerwood Mundy Corporation, Pentair Water Pool and Spa, Inc., Navistar, Inc., Taco, Inc., Croll Reynolds Engineering Co., Inc., Warner Electric, LLC, Triarco Arts and Crafts, Inc., Akron Paint & Varnish Inc.

63

ECKERT SEAMANS CHERIN & MELLOTT, LLC

'

By:.:Jt&J1A&J7t. ~ Thomas M. Smith 10 Bank Street, Suite 700 White Plains, New York 10606 Tel.: (914) 949-2909 E-mail: [email protected]]

Attorneys for Defendant-Appellant Norfolk Southern Railway Company

GARRITY GRAHAM MURPHY GAROFALO & FLINN

By:~~~~hr~~~~~--'-· Anthony J. M i 40 Wall Stree , 28111 Floor New York, New York 10005 Tel.: 973.509.7500 E-mail: [email protected]

Attorneys for Defendant-Appellant United Conveyor Corporation

FREEHILL HOGAN & MAHAR LLP

By:~~,~-Thomas M. Canevari 80 Pine Street New York, New York 10005-1759 Tel.:· (212) 381-3017 E-mail: [email protected]

Attorneys for Defendants-Appellants National Bulk Carriers, Inc., Universe Tankships, Inc., Marine Transport Lines, Inc., Crowley Marine Services, Inc., Delta Steamship Lines, Inc., Residual Enterprises, Inc., Norwegian Cruise Line Holdings, LTD., Carnival Corporation, Carnival P LC, Princess Cruise Line Limited, CSX Transportation, Inc., Consolidated Rail Corporation

GOLDBERG CORWIN LLP

erg 380 Lexington 1\venue, Suite 72 New York, New York 10168 Tel.: (212) 986-1000 E-mail: [email protected]

Attorneys for Defendants-Appellants Bridgestone Americas Tire Operations, LLC, and Bridgestone Americas, Inc.

64

GOLDBERGSEGALLA

By:~t/S~-Andrew J. Schol 711 3rd Avenue, Suite 1900 New York, New York 10017 Tel.: (646) 292-8770 E-mail: [email protected]

Attorneys for Defendants-Appellants Avco Corporation and McCord Corporation

GORDON AND SILBERP.C.

By: QA-t_M b ~ Arthur G. Cohen 355 Lexington Avenue, 7th floor New York, New York 10017 Tel.: (212) 834-0600 E-mail: [email protected]

Attorneys for Defendants-Appellants Dentsply International Incorporated and Ransom and Randolph

GORDON REES LLP

By: Qitf_ c Q;~ Erik C. DiMarco Virginia P. Squitieri One Battery Park Plaza, 28111 Floor New York, New York 10004 Tel.: (212) 269-5500 E-mail: [email protected]

vsquitieri@grsm. com

Attorneys for Defendants-Appellants, The Boeing Company , Carrier Corporation, Carver Pump Company, Clyde Union, Inc., Colgate Palmolive Company, Control Components Inc., Conwed Corporation, General Dynamics Corporation, Electric Boat Corporation, Hyde Marine Inc., Otis Elevator Company, Puget Sound Commerce Center, S. W. Anderson Sales Corp., and Whiting Corporation.

HARRIS BEACH PLLC

By: . Cynth Weiss Antonucci 1 00 Wall Street New York, New York 10005 Tel.: (212) 687-0100 E-mail: cantonucci@harris beach.com

Attorneys for Defendant-Appellant Albany International Corp.

65

,.

HARWOOD LLOYD, LLC

By: {1J1f~ Russell A. Pepe Victoria D. Silva 130 Main Street Hackensack, New Jersey 07601 Tel.: (201) 487-1080 E-mail: [email protected]

[email protected]

Attorneys for Defendants-Appellants Carlisle Industrial Brake & Friction, Inc. and Graham Corporation

HAWKINS PARNELL THACKSTON &YOUNGLLP

By:Lt~ D~~·· Mark D. Debrowski 600 Lexington A venue 8th Floor New York, NY 10022-7678 Tel: (646) 589-8708 E-mail: [email protected]

Attorneys for Defendant-Appellant American Biltrite Inc.


By:a~P.~ Edward P. Abbot 600 Lexington A venue, 8th Floor New York, NY 10022 Tel.: (212) 897-9655 E-mail: [email protected]

Attorneys for Defendants-Appellants Ericsson, Inc., Federal-Mogul Asbestos Personal Injury Trust, as successor to Felt Products Manufacturing Company, 0 'Connor Constructors, Inc., and SOS Products, Inc.


By: ·~ /(_ (J1# MarkK. Hsu 600 Lexington A venue, 8th Floor New York, New York 10022-7678 Tel.: (212) 897-9655 E-mail: [email protected]

Attorneys for Defendants-Appellants Viking Pump, Inc. and Milwaukee Valve Company, Inc.

66

HA WKJNS PARNELL THACKSTON HOAGLAND, LONGO, MORAN, & YOUNG LLP DUNST & DOUKAS, LLP

By:~~~~~==~~----Alfred S · rgente 600 Lexington A venue, 8th Floor New York, NY 10022-7678 Tel.: (212) 897-9655 E-mail: asargente@hpty law. com

Attorneys for Defendant-Appellant Pneuma Abex LLC

HUGHES HUBBARD & REED LLP

By: fdM& /)/. Pc~£ Robb W. Patryk One Battery Park Plaza New York, New York 10004-1482 Tel.: (212) 837-6861 E-mail: [email protected]

Attorneys for Defendant-Appellant R.J. Reynolds Tobacco Co. (as successor-by-merger to Lorillard Tobacco Co.)

Byd~s~ Jas . Riemer 48 Wall Street, Suite 1100 New York, NY 10005 Tel.: (732) 545-4717 E-mail: [email protected]

Attorneys for Defendants-Appellants Kohler Co., Johnston Boiler Company, Whittaker, Clark and Daniels, Inc., York International, Johnson Controls,.Inc., Frick Company, Mole-Richardson Co., and Great Lakes Power Products, Inc.

KENT & MCBRID2

By:.fn~ f2_. ~~ Bradley R. ~.fiwrence 420 Lexington Avenue, Suite 335 New York, NY 10170 Tel.: (212) 588-9460 E-mail: [email protected]

Attorneys for Defendants-Appellants ENS LLC and Littelfuse, Inc.

67

LA YIN, O'NEIL, CEDRONE & DISIPIO

<

By:, l1L6 Timothy J. '] 1gh 420 Lexington Avenue, S New York, New York 10170 Tel.: (212) 319-6898 E-mail: [email protected]

Attorneys for Defendants-Appellants 3M Company, Amdura LLC, International Business Machines Corporation, and United Technologies Corporation

LITCHFIELD CA VO LLP

By:~* Andrew Sapon 420 Lexington Avenue, Suite 2104 New York, New York 10170 Tel.: (212) 434-0100 E-mail: [email protected]

Attorneys for Defendants-Appellants Arconic, Inc., f/k/a Alcoa, Inc., Dykes Lumber Company, Inc., Fire End & Croker Corp., James Walker Mfg. Co., Inc., Imerys Talc America, Inc., and Cyprus Amax Minerals Company

LEWIS BRISBOIS BISGAARD & SMITHLLP

By:~~ CJ~ Philip O'Ro ke 77 Water Street, 21st Floor New York, New York 10005 Tel.: (646) 666-7700 E-mail: Philip.O'[email protected]

Attorneys for Defendants-Appellants Peerless Industries, Inc., Henkel Corporation, Graybar Electric Company, Inc., and Niagara Insulations, Inc.

LITTLETON JOYCE UGHETTA PARK & KELLY LLP

By:~ 1},~~ Diane H. Miller The Centre at Purchase 4 Manhattanville Road, Suite 202 Purchase, NY 10577 Tel.: (914) 417-3400 E-mail: Diane.Miller@LittletonJ oyce.com

Attorneys for Defendants-Appellants Kerr Corporation, Zy-Tech Global Industries, VWR International, LLC, and Crown Equipment Corporation

68

LONDON FISCHER LLP

By: {b); ~1 .. D~ Aris E. L. Dutka 59 Maiden Lane New York, New York 10038 Tel.: (212) 972-1000 E-mail: [email protected]

Attorneys for Defendant-Appellant Forest Electric Corporation

MACKENZIE HUGHES, LLP

By:~~kc S. '-~ Stephen . Davie · 440 S. Warren Street, Ste. 400 Syracuse, New York 13202 Tel: (315) 233-8282 E-mail: [email protected]

Attorneys for Defendants-Appellants Julius Kraft Company, Inc., Woolsulate Corporation, and AECOM Energy & Construction, Inc.

69

MALABY & BRADLEY LLC

By:~~ Robert C. Malaby Maryellen Connor 150 Broadway, Suite 600 New York, NY 10038 Tel.: (212) 791-0285 E-mail: [email protected]

mconnor@mblaw .net

Attorneys for Defendants-Appellants DeZurik, General Railway Signal Company, Hale Products, Inc., Benfield Electric Supply Co., Inc., The Hallen Construction Co., Inc., JA. Sexauer, Inc., JH France Refractories Company, Kinney Vacuum Company, Leeds & Northrup, Lindberg, Met-Pro Technol,ogies LLC, Successor by Merger to Met-Pro Corporation, on behalf of its Dean Pump Division, NCH Corporation, New York Air Brake Corp., 0 'Reilly Auto Enterprises, LLC, Roper Pump Company, Sears, Roebuck and Co., Terex Corporation, Tile Council of North America, Inc., The Unimax Corporation, and Vellumoid, Inc.

MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C.

By:~ 1fi .... J~bafa_ Carol M. Tempesta I · 530 Saw Mill River Road Elmsford, New York 10523 Tel.: (914) 345-3701 E-mail: [email protected]

Attorneys for Defendants-Appellants Adience, Inc. f/kla BMI, Inc., and JT Falk Company, Bari Restaurant & Pizza Equipment, Columbia Boiler Company of Pottstown, Crescent Electric Supply, Inc. of New York, Performance Industries Inc., Steel Grip Inc., ProBuild Holdings and The Strober Organization.

70

MARON MARVEL BRADLEY ANDERSON & TARDY LLC

By:~~·~i_· ~~~_, ____ _ Timothy Cou hlan · 328 Newma Springs Road Red Bank, NJ 07701 Tel.: (732) 945-5530 E-mail: tcoughlan@maronmarvel. com

Attorneys for Defendant-Appellant Velan Valve Corp.

McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP

~:SfJ~¥*alfl~L 1300 Mount Kemble Avenue P.O. Box 2075 Morristown, New Jersey 07962-2075 Tel.: (973) 993-8100 E-mail: j [email protected]

Attorneys for Defendants-Appellants Benjamin Moore & Co., Burnham, LLP, Crosby Valve, LLC, ExxonMobil Corporation, Eaton Corporation, Eaton Aeroquip, LLC, Edward Valves, Inc., Flowserve US. Inc., solely as successor to Rockwell Manufacturing Company, J.R. Clarkson Company, LLC, Lipe Automation Corporation, Mueller Co., LLC, Nordstrom Valves, Inc., Tuthill Corporation, and Varec Vapor Control, Inc.

MARSHALL, CONWAY & BRADLEY

By:~{jrM-: Norman J. Golub Stacey H. Snyder 45 Broadway New York, New York 10006 Tel.: (212) 619-4444 (Main) E-mail: [email protected]

[email protected]

Attorneys for Defendant-Appellant Slant/Fin Corp.

McGIVNEY KLUGER & COOK, P.C.

By:~a..r,/1.~ Kerryan . Cook 80 Broad Street, 23rd Floor New York, New York 10004 Tel.: (212) 509-3456 E-mail: [email protected]

Attorneys for Defendants-Appellants Ace Hardware Corporation, Allied Glove Corporation, Alltite Gasket Company, Beckerle Lumber Supply Inc., Cardone Industries Inc., J & H Berge Inc., True Value Corporation, and Vierson Boiler & Repair Co.

71

McMAHON MARTINE & GALLAGHER, LLP

By:~

Timothy D. llagher, Esq. 55 Washing on Street, Suite Brooklyn, New York 11201 (212) 747 1230

Attorneys for Defendants-Appellants Edward Orton Jr. Ceramics Foundation, Eastern Refractories Company, Inc., Hilton Worldwide, Inc., Park Hotels & Resorts, Inc., and Tishman Realty & Construction Co., Inc. n/k/a TTV Realty Holdings, Inc.

MOUND, COTTON, WOLLAN & GREENGRASS LLP

By:~_(~ Mark S. Katz , Michael T. Lynch One New York Plaza New York, New York 10004 Tel.: (212) 804-4200 E-mail: [email protected]

[email protected]

Attorneys for Defendant-Appellant KONEinc.

MORGAN LEWIS & BOCKIUS LLP

By: &;{A~~ Beth L. Hughes 101 Park A venue New York, NY 10178-0060 Tel.: (212) 309-6000 E-mail: beth.hughes@morganlewis .com

Attorneys for Defendant-Appellant Elliott Company

NIXON PEABODY LLP

By: ,~6.~/v~ Santo Borruso Joseph J. Ortego 50 Jericho Quadrangle, Suite 300 Jericho, New York 11753-2728 Tel.: (516) 832-7500 E-mail: [email protected]

j ortego@nixonpeabody. com

Attorneys for Defendant-Appellant Daimler Trucks North America LLC

72

O'TOOLE SCRIVO FERNANDEZ WEINER VAN LIEU LLC

ByS~ lf Wtifl~-1 Steven A. Weiner Joshua Lichtenstein Casey Chamra 14 Village Park Road Cedar Grove, NJ 07009 Tel.: (973) 239-5700 E-mail: [email protected]

JLichtenstein@oslaw. com [email protected]

Attorneys for Defendants-Appellants ACME HEAT & POWER INC., AVOCET ENTERPRISES, INC., CLARI( RELIANCE CORPORATION, HATZEL AND BUEHLER, INC., RITE ENGINEEFJNG & MANUFACTURING CORP., J.R. CLARKSON COMPANY, successor by merger to IMI CASH VALVE INC., MUCHAELSPLUMBINGSUPPLY CO., PENNCO, INC., and REEM PLUMBING & HEATING CORP.

PASCARELLA DIVITA, PLLC

By:~a' ?£ fJo.acvuf~ Lisa M. Pascarella Stephanie A. DiVita 2137 Route 35, Suite 290 Holmdel, New Jersey 07733 Tel.: (732) 837-9019 E-mail: lpascarella@PDLTLA W.COM

sdivita@PDL TLA W.COM

Attorneys for Defendants-Appellants Rheem Manzifacturing Company, NIBCO INC., and Darco Southern, Inc.

73

PATTERSON BELKNAP WEBB & TYLERLLP

By:_~-cAAD· w~ J oitVb. Winter . Thomas P. Kurland 1133 Avenue ofthe Americas New York, New York 10036 Tel.: (212) 336-2000 E-mail: [email protected]

[email protected]

Attorneys for Defendants-Appellants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (f/k/a Johnson & Johnson Consumer Companies, Inc.)

PORZIO, BROMBERG & NEWMAN, P.C.

Byi< IC:ddl~~ !J I~~ J o~a H. Abramson 156 West 56th Street, Suite 803 New York, New York 10019-3800 Tel.: (212) 265-6888 E-mail: [email protected]

Attorneys for Defendant-Appellant Schindler Elevator Corp.

PILLSBURY WINTHROP SHAW PITTMANLLP

By:V E. Leo ilonas David G. Keyko Joshua I. Schlenge 1540 Broadway New York, New York 10036 Tel.: (212) 858-1000 E-mail: [email protected] david.keyko@pills bury law. com [email protected] Attorneys for Defendant-Appellant Cleaver-Brooks, Inc.

RENZULLI LAW FIRM LLP

By: --"-"""'-----H----:--+~ ~ Christopher R nzulli Joan M. Gasior 81 Main Street, Suite 508 White Plains, New York 10601 Tel.: (914) 285-0700 E-mail: [email protected]

j gasior@renzullilaw. com

Attorneys for Defendants-Appellants Pfizer Inc. and American Optical Corporation

74

RIVKIN RADLER LLP

By:~S'~~ Brian Schlosser 926 RXR Plaza Uniondale, New York 115 5 6-0926 Tel.: (516) 357-3000 E-mail: [email protected]

Attorneys for Defendant-Appellant Avon Products) Inc.

SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD.

By: {ijd)MA/ /;(! / ~-(LA Andrew W. Dean 850 Third Avenue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected]

Attorneys for Defendant-Appellant Watts Water Technologies) Inc.

SCHNADER HARRISON SEGAL &LEWIS LLP

By:~C~~ Peter C. Langenus · MatthewS. Tamasco 140 Broadway, Suite 3100 New York, New York 10005 Tel.: (212) 973-8000 E-mail: plangenus@schnader. com

[email protected]

Attorneys for Defendant-Appellant Fort Kent Holdings) Inc. (f/k/a Dunham-Bush Inc.)


By: &J.J- {)ffot Erich J. Gle r 850 Third Avenue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected]

Attorneys for Defendants-Appellants ECR International) Inc.) Mannington Mills) Inc.) and Aurora Pump Company

75


By:~p~· Arian Prelvukaj · 850 Third Avenue, 11th Floor New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected]

Attorneys for Defendant-Appellant CompuDyne, LLCf/k/a CompuDyne Corporation, Individually and as Successor to York Shipley, Inc.

SIMON LESSER PC

~~ ~ By;/o ?J ·-F: ; Leonard F. Lesser 355 Lexington Avenue, lOth Floor New York, New York 10017 Tel.: (212) 599-5455 E-mail: [email protected]

Attorneys for Defendants-Appellants Emerson Electric Co., Fisher Controls International LLC, Appleton Electric LLC, ASCO Valve, Inc.


By:~ ~-:J~ Mic~D 850 Third A venue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7425 E-mail: [email protected]

Attorneys for Defendant-Appellant Rogers Corporation

THOMPSON HINE LLP

~:.~~hv~ Ruthe Nepf 335 Madison Avenue, 12th Floor New York, New York 10017 Tel.: (212) 344-5680 Email: J [email protected]

[email protected]

Attorneys for Defendants-Appellants Central Hudson Gas & Electric Corporation, Alcoa Steamship Company, Inc., Apex Oil Company, Inc., American Trading and Production Corporation, Farrell Lines Incorporated, Keystone Shipping Company, Keystone Tankship Corporation, Maersk B. V, Maersk Inc., Maersk Line, Limited

76

TROUTMANSANDERSLLP

By:~/) Richard P. O'Leary 875 Third Avenue

- (

New York, New York 10022 Tel.: (212) 704-6138 Email: Richard.oleary@troutmansanders .com

Attorneys for Defendants-Appellants Fisher Scientific, Inc., Hercules, Inc., Mestek, Inc., Parker-Hannifzn Corporation, Standard Motor Products, Inc.

WESTERMAN BALL EDERER MILLER ZUCKER & SHARFSTEIN, LLP

By: 1{){l·~ £' 1/t~--William E. Vita 1201 RXR Plaza Uniondale, New York 11556 Tel.: 516-622-9200 E-mail: [email protected]

Attorneys for Defendant-Appellant Hollingsworth & Vase Company

WATERS, MCPHERSON, MCNEILL, PC

By: .t],~t~Giovanni Regina 300 Lighting Way Secaucus, NJ 07096 Tel.: (201) 319-5743 E-mail: [email protected]

Attorneys for Defendants-Appellants Riley Power, Inc. and Turner Construction Co., Inc.

WILBRAHAM, LAWLER & BUBA

BW,.kS ,4.,-w~ Jo . Howarth 140 Broadway, 46th Floor New York, NY 10005 Tel.: (212) 858-7575

Attorneys for Defendants-Appellants Arconic f/k/a Alcoa Inc., Karnak Corp., Reynolds Metals Company

77

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP

By: ~ 2/J-7U'" Elizabe 1 . Young 150 East 42nd Street · New York, New York 10017 Tel.: (212) 490-3000 E-mail: Elizabeth. Y oung@wilsonelser .com

Attorneys for Defendants-Appellants Chevron US.A. Inc., Texaco Inc., Gulf Oil Corporation, !-less Corporation, Ira S. Bushey & Sons, Inc., Glas-Col, LLC, Hitachi America, Ltd., Enerjet Corporation, New Yorker Boiler Company, Inc.

78

SEGAL McCAMBRIDGE SINGER &

MAHONEY, LTD. . (}

By: J~;fu- i. ~U£f'~ Jennifer L. Budner 850 Third A venue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected]

Attorneys for Defendant-Appellant Weil-McLain

79

APPELLATE DIVISION – FIRST DEPARTMENT PRINTING SPECIFICATION STATEMENT

I hereby certify pursuant to 22 N.Y.C.R.R. § 600.10(d)(1)(v) that this

brief was prepared on a computer using Microsoft Word.

Type: A proportionally spaced typeface was used, as follows:

Name of typeface: Times New Roman Point size: 14 (footnotes in 12) Line spacing: Double Word Count: The total number of words in this brief, inclusive of

point headings and footnotes and exclusive of pages containing the table of

contents, table of authorities, certificate of compliance, or any authorized

addendum containing statutes, rules, regulations, etc. is 13,976.

Dated: New York, New York September 5, 2017

Joshua I. Schlenger PILLSBURY WINTHROP SHAW PITTMAN LLP

1540 Broadway New York, New York 10036 Tel.: (212) 858-1000 Attorneys for Defendant-Appellant

Cleaver-Brooks, Inc.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION FIRST DEPARTMENT

In Re: NEW YORK CITY ASBESTOS LITIGATION

New York City Asbestos Litigation Index Nos.: 40000/1988 782000/2017

This Document Relates To: ALL CASES

PRE-ARGUMENT STATEMENT

1. Title of Action: The actions at issue are all the actions affected by the orders issued in the master case indexed at Index Nos. 40000/1988 and 782000/2017, under the matter name In re New York City Asbestos Litigation (“NYCAL”), in which the defendants-appellants whose names set forth in the attached Rider A (collectively, “Defendants”), are defendants. Defendants are party to numerous cases pending in NYCAL.

2. Full Names of Original Parties and Any Change in Parties: The names of the current plaintiffs-respondents (“Plaintiffs”) in the master case and numerous pending actions against Defendants in the individual actions and affected by the orders entered in NYCAL, indexed at Index Nos. 40000/1988 and 782000/2017, are set forth in those actions. Plaintiffs’ counsel are, to the best of Defendants’ present knowledge, identified below in point 4.

The full names of the Defendants filing this pre-argument statement are set forth in the attached Rider A.

3. Counsel for Defendants: Counsel for Defendants have the following names, addresses, and telephone numbers:

PILLSBURY WINTHROP SHAW PITTMAN LLP E. Leo Milonas David G. Keyko Joshua I. Schlenger 1540 Broadway New York, NY 10036 Tel.: (212) 858-1000 Attorneys for Defendant-Appellant Cleaver-Brooks, Inc.

CLYDE & CO US LLP Peter J. Dinunzio The Chrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 Tel.: (212) 710-3900 Attorneys for Defendant-Appellant Jenkins Bros.

FILED: NEW YORK COUNTY CLERK 07/14/2017 12:07 PM INDEX NO. 782000/2017

NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 07/14/2017

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BARRY, McTIERNAN & MOORE, LLC Suzanne M. Halbardier Two Rector Street - 14th Floor New York, New York 10006 Tel.: (212) 313-3606 Attorneys for Defendant-Appellant John Crane Inc.

For additional attorneys for Defendants, please see the attached Rider A.

4. Counsel for Plaintiffs: Counsel for Plaintiffs have the following names, addresses, and

telephone numbers:

WEITZ & LUXENBERG P.C. Charles Ferguson Jerry Kristal 700 Broadway New York, New York 10003 Tel.: (212) 558-5500

BELLUCK & FOX, LLP Joseph Belluck Jordan Fox 546 Fifth Avenue, 4th Floor New York, New York 10036 Tel.: (212) 681-1575

LEVY KONIGSBERG LLP Robert Komitor 800 Third Avenue, 11th Floor New York, New York 10022 Tel.: (212) 605-6200

EARLY, LUCARELLI, SWEENEY & MEISENKOTHEN James F. Early Brian Early 360 Lexington Avenue, 20th Floor New York, New York 10017 Tel.: (212) 986-2233

For additional attorneys for Plaintiffs, please see the attached Rider B.

5. Court and County from Which This Appeal Is Taken: This appeal is taken from

the new case management order (the “New CMO”) and accompanying decision (the “Decision”), both dated June 20, 2017 and entered in the NYCAL Master File, at Index Nos. 560001/2017 and 782000/2017, in the Supreme Court of the State of New York, in and for the County of New York, per the Honorable Peter H. Moulton. The New CMO and Decision were entered in the Office of the Clerk of the Supreme Court of the State of New York, in and for the County of New York, on June 23, 2017, and Defendants served notice of entry on July 13, 2017, in Index Nos. 40000/1988 and 782000/2017.

6. Nature and Object of the Actions: These actions seemingly all involve alleged personal injuries or wrongful deaths relating to alleged exposures to asbestos or asbestos-containing materials. Plaintiffs allege that such injuries resulted from exposures to asbestos or asbestos-containing materials allegedly associated with Defendants, among other entities.

7. Result in Lower Court: In 1996, as part of a negotiated agreement among the parties’ counsel, a new NYCAL case management order (“CMO”) was entered that included the



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deferral of punitive damages. On April 8, 2014, however, the then-NYCAL presiding justice, Hon. Sherry K. Heitler, granted a motion filed by certain plaintiffs to end the punitive damages deferral, amending the CMO. Defendants appealed, arguing, inter alia, that the CMO, as amended, deprived them of constitutional due process. In its July 9, 2015 decision, the First Department agreed with defendants that the CMO, as amended by Justice Heitler’s April 2014 order, violated defendants’ due process rights, and remanded for further proceedings to safeguard such rights and consideration of whether the punitive damages deferral should be continued.

In April 2015, while the appeal was pending, defendants moved before the NYCAL coordinating justice for a stay of all NYCAL proceedings to allow for the negotiation of a new consent-based CMO. By order dated August 28, 2015, the court denied the stay request, but did grant that portion of defendants’ motion to negotiate a modification of the CMO, if possible on consent. During this process, defendants raised the concerns both in writing and orally that form the basis for their challenge to the New CMO. No consent was obtained, but on June 20, 2017, the New CMO and Decision were issued. They were entered on June 23, 2017 and notice of entry was served on July 13, 2017. This appeal followed.

8. Grounds for Reversal: The New CMO and Decision were erroneously issued and

should be vacated on, inter alia, the following grounds:

a. The New CMO, which explicitly purports to override the New York Civil Practice Law and Rules (“CPLR”), violates the New York State Constitution and the will of the New York State Legislature in enacting the CPLR.

b. In its prior 2015 decision in this matter, the Appellate Division, First Department remanded to Supreme Court and directed that, to the extent Supreme Court determined to end the deferral of punitive damages claims in NYCAL, it must develop “procedural protocols” to safeguard NYCAL defendants’ due process rights. Matter of N.Y.C. Asbestos Litig., 130 A.D.3d at 490. The New CMO violates the First Department’s ruling by depriving Defendants of the due process rights guaranteed them under the New York State Constitution and the CPLR.

c. Uniform Rule 202.69 does not permit the NYCAL Justice Moulton to enter a CMO that deprives litigants of their due process and CPLR rights without their consent.

d. The Decision and each and every part of the New CMO are erroneous and should be reversed for other reasons that Defendants will detail more fully on appeal.



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9. Related Actions and Appeals:

The appeal of the Decision & Order is not related to any other pending appeal.

Dated: New York, New York July 14, 2017

To:

1. The Clerk of Court

E. Leo Milonas David G. Keyko Joshua I. Schlenger 1540 Broadway New York, NY 10036 Tel.: (212) 858-1000

A W PITTMAN LLP

E-mail: eleo .milonas@pills burylaw. com [email protected] · joshua. schlenger@pills bury law. com


CLYDE & CO US LLP Peter J. Dinunzio The Chrysler Building 405 Lexington A venue, 16th Floor New York, New York 10174. Tel.: (212) 710-3900 Email: [email protected]

Attorneys for Defendant-Appellant Jenkins Bros.

BARRY, McTIERNAN & MOORE, LLC Suzanne M. Halbardier Two Rector Street- 14th Floor New York, New York 10006 Tel.: (212) 313-3606 E-mail: [email protected]

Attorneys for Defendant-Appellant John Crane Inc.

Supreme Court ofthe State ofNew Yorlc New York County

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60 Centre Street New York, New York 10007

2. Honorable Gerald Lebovits Interim Acting NYCAL Coordinating Judge Supreme Court of the State of New York New York County 60 Centre Street New York, New York 10007

3. The Plaintiffs’ counsel identified in the attached Rider B

4. NYCAL defense counsel via e-mail, per agreement



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DEFENDANT’S RIDER A

Defendants-Appellants in the Instant Appeal (with counsel)

Robert J. Chappell AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP 600 Third Avenue New York, New York 10016 Tel.: (212) 593-6700 E-mail: [email protected] Attorneys for Defendant-Appellant Mazda Motor of America, Inc. d/b/a Mazda North American Operations

Nancy L. Pennie AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP 600 Third Avenue New York, New York 10016 Tel.: (212) 593-6795 E-mail: [email protected] Attorneys for Defendant-Appellant Ford Motor Company

Frank A. Cecere AHMUTY, DEMERS & MCMANUS 200 I.U. Willets Road Albertson, New York 11507 Tel.: (516) 294-5433 E-mail: [email protected] Attorneys for Defendants-Appellants Colart Americas, Inc., Ex-FM, Inc. f/k/a Fischbach & Moore, Inc., Thomas & Betts Corporation, Tishman Realty & Construction Co., Inc. n/k/a TTV Realty Holdings, Inc., Webster Plumbing Supply, Inc., Yuba Heat Transfer LLC, Wabash Power Equipment Company

Suzanne M. Halbardier BARRY, McTIERNAN & MOORE, LLC Two Rector Street – 14th Floor New York, New York 10006 Tel.: (212) 313-3606 Email: [email protected] Attorneys for Defendants-Appellants 84 Lumber Company, Blackman Plumbing Supply Co., Domco Products Texas Inc., Eli Lilly and Company, Fulton Boiler Works, Inc., H.C. Oswald Supply Company, Inc., John Crane Inc., Kimberly-Clark Corporation, Matt Brewing Company, Inc., Mondelez International, Inc., Mule-Hide Products Co., Inc., R.W. Beckett Corporation, SPX Cooling Technologies, Inc., The Olympic Glove and Safety Company, Troy Boiler Works, Inc., Twin Disc, Inc., Whip Mix Corporation



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Frances B. Stella Lindsay P. Cambron BRACH EICHLER LLC 101 Eisenhower Parkway Roseland, New Jersey 07068 Tel.: 973-228-5700 E-mail: [email protected] [email protected] Attorneys for Defendant-Appellant Cushman & Wakefield, Inc.

ZACHARY W. CARTER Corporation Counsel of the City of New York By: Scot C. Gleason Assistant Corporation Counsel 100 Church Street, 4th Floor New York, New York 10007 Tel.: (212) 356-2686 E-mail: [email protected] Attorneys for Defendant-Appellant The City of New York

Lisa Massimi CARUSO SMITH PICINI PC 60 US 46 Fairfield, New Jersey 07004 Tel.: (973) 667-6000 E-mail: [email protected] Attorneys for Defendant-Appellant ASBEKA Industries of New York

Lawrence G. Cetrulo Jason M. Saul Hayley Kornachuk CETRULO LLP Two Seaport Lane, 10th Floor Boston, MA 02210 Tel.: (617) 217-5500 E-mail: [email protected] [email protected] [email protected] Attorneys for Defendant-Appellant PPG Architectural Finishes, Inc.

William F. Mueller CLEMENTE MUELLER, PA 43 West 43rd Street, Suite 156 New York, New York 10036-7424 Tel.: (212) 425-5005 E-mail: [email protected]

Attorneys for Defendant-Appellant The William Powell Company

Peter J. Dinunzio CLYDE & CO US LLP The Chrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 Tel.: (212) 710-3900 Email: [email protected] Attorneys for Defendant-Appellant Jenkins Bros.



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Jeffrey Fegan CLYDE & CO US LLP The Chrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 Tel.: (212) 710-3900 Email: [email protected] Attorneys for Defendants-Appellants Morse Diesel, Inc., Mario & DiBono Plastering Co., Inc., and Curtiss-Wright Flow Control Corporation

John J. Fanning CULLEN AND DYKMAN LLP 44 Wall Street New York, New York 10005 Tel.: (212) 701-4142 E-mail: [email protected] Attorneys for Defendants-Appellants National Grid Generation LLC d/b/a National Grid, The Brooklyn Union Gas Company d/b/a National Grid NY, Long Island Lighting Company d/b/a LIPA, Niagara Mohawk Power Corporation d/b/a National Grid, David Fabricators of N.Y., Inc., Howden North America, Inc., Spence Engineering Co., Inc., New York Power Authority, Goulds Pumps, Inc., AWC 1997 Corporation f/k/a Alpha Wire Corp., and Hennessy Industries

Jennifer Wilcox Darger DARGER ERRANTE YAVITZ & BLAU LLP 116 East 27th Street, 12th Floor New York, New York 10016 Tel.: (212) 452-5300 E-mail: [email protected] Attorneys for Defendants-Appellants Cooper Industries, LLC, Mine Safety Appliances Company, LLC, Lennox Industries Inc., Beazer East, Inc., f/k/a Koppers Company, Inc., Hopeman Brothers, Inc., Lightolier, Inc., Dana Companies LLC, Unilever United States, Inc., and Conopco, Inc.

David L. Ferstendig LAW OFFICES OF DAVID L. FERSTENDIG, LLC 280 Madison Ave, Suite 300 New York, New York 10016 Tel: (212) 213-1233 E-mail: [email protected] Attorneys for Defendants-Appellants Amsted Rail Company, Inc. and Baltimore Aircoil Company, Inc.

John J. Delany, III DELANY MCBRIDE, LLC 80 Broad street – 5th Floor New York, New York 10004 Tel: (888) 365-2988 E-mail: [email protected] Attorneys for Defendants-AppellantsLehigh Gasket Company, Asten Johnson, Inc. (as successor in interest to Asten Hill Group, Inc.), and Ductmate Industries, Inc.

Christopher M. Strongosky DLA PIPER LLP (US) 1251 Avenue of the Americas New York, New York 10020-1104 Tel.: (212) 335-4500 E-mail: [email protected] Attorneys for Defendant-Appellant BASF Catalysts LLC



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Timothy M. McCann DOUGLAS J. MCKAY 4 Irving Place New York, New York 10003-3598 Tel.: (212) 460-2164 E-mail: [email protected] Attorneys for Defendants-Appellants Consolidated Edison Company of New York, Inc. and Orange and Rockland Utilities, Inc.

David Katzenstein ECKERT SEAMANS CHERIN & MELLOTT, LLC Four Gateway Center, Suite 401 100 Mulberry Street Newark, New Jersey 07102 Tel.: (973) 855-4715 E-mail: [email protected] Attorneys for Defendants-Appellants AO Smith Water Products Company, Inc., Superior Lidgerwood Mundy Corporation, Pentair Water Pool and Spa, Inc., Navistar, Inc., Taco, Inc., Croll Reynolds Engineering Co., Inc., Warner Electric, LLC, Triarco Arts and Crafts, Inc., Akron Paint & Varnish Inc.

Thomas M. Smith ECKERT SEAMANS CHERIN & MELLOTT, LLC 10 Bank Street, Suite 700 White Plains, New York 10606 Tel.: (914) 949-2909 E-mail: [email protected]] Attorneys for Defendant-Appellant Norfolk Southern Railway Company

Thomas M. Canevari FREEHILL HOGAN & MAHAR LLP 80 Pine Street New York, New York 10005-1759 Tel.: (212) 381-3017 E-mail: [email protected] Attorneys for Defendants-Appellants National Bulk Carriers, Inc., Universe Tankships, Inc., Marine Transport Lines, Inc., Crowley Marine Services, Inc., Delta Steamship Lines, Inc., Residual Enterprises, Inc., Norwegian Cruise Line Holdings, LTD., Carnival Corporation, Carnival PLC, Princess Cruise Line Limited, CSX Transportation, Inc., Consolidated Rail Corporation

Anthony J. Marino GARRITY GRAHAM MURPHY GAROFALO & FLINN 40 Wall Street, 28th Floor New York, New York 10005 Tel.: 973.509.7500 E-mail: [email protected] Attorneys for Defendant-Appellant United Conveyor Corporation



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Zachary S. Goldberg GOLDBERG CORWIN LLP 380 Lexington Avenue, Suite 725 New York, New York 10168 Tel.: (212) 986-1000 E-mail: [email protected] Attorneys for Defendants-Appellants Bridgestone Americas Tire Operations, LLC, and Bridgestone Americas, Inc.

Andrew J. Scholz GOLDBERG SEGALLA 711 3rd Avenue, Suite 1900 New York, New York 10017 Tel.: (646) 292-8770 E-mail: [email protected] Attorneys for Defendants-Appellants Avco Corporation and McCord Corporation

Erik C. DiMarco Virginia P. Squitieri GORDON REES LLP One Battery Park Plaza, 28th Floor New York, New York 10004 Tel.: (212) 269-5500 E-mail: [email protected] [email protected] Attorneys for Defendants-Appellants Colgate Palmolive Company, Carrier Corporation, Otis Elevator Company, Control Components Inc., Whiting Corporation, General Dynamics Corporation, Hyde Marine Inc., Electric Boat Corporation, Puget Sound Commerce Center, Clyde Union, Inc., S.W. Anderson Sales Corp., Carver Pump Company, Conwed Corporation, The Boeing Company

Arthur G. Cohen GORDON AND SILBER P.C. 355 Lexington Avenue, 7th floor New York, New York 10017 Tel.: (212) 834-0600 E-mail: [email protected] Attorneys for Defendants-Appellants Dentsply International Incorporated and Ransom and Randolph

Cynthia Weiss Antonucci HARRIS BEACH PLLC 100 Wall Street New York, New York 10005 Tel.: (212) 687-0100 E-mail: [email protected] Attorneys for Defendant-Appellant Albany International Corp.



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Russell A. Pepe Victoria D. Silva HARWOOD LLOYD, LLC 130 Main Street Hackensack, New Jersey 07601 Tel.: (201) 487-1080 E-mail: [email protected] [email protected] Attorneys for Defendants-Appellants Carlisle Industrial Brake & Friction, Inc. and Graham Corporation

Edward P. Abbot HAWKINS PARNELL THACKSTON & YOUNG LLP 600 Lexington Avenue, 8th Floor New York, NY 10022 Tel.: (212) 897-9655 E-mail: [email protected] Attorneys for Defendants-Appellants Ericsson, Inc., Federal-Mogul Asbestos Personal Injury Trust, as successor to Felt Products Manufacturing Company, O’Connor Constructors, Inc., and SOS Products, Inc.

Mark K. Hsu HAWKINS PARNELL THACKSTON & YOUNG LLP 600 Lexington Avenue, 8th Floor New York, New York 10022-7678 Tel.: (212) 897-9655 E-mail: [email protected] Attorneys for Defendants-Appellants Viking Pump, Inc. and Milwaukee Valve Company, Inc.

Alfred Sargente HAWKINS PARNELL THACKSTON & YOUNG LLP 600 Lexington Avenue, 8th Floor New York, NY 10022-7678 Tel.: (212) 897-9655 E-mail: [email protected] Attorneys for Defendant-Appellant Pneumo Abex LLC

Jason S. Riemer HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, LLP 48 Wall Street, Suite 1100 New York, NY 10005 Tel.: (732) 545-4717 E-mail: [email protected] Attorneys for Defendants-Appellants Kohler Co., Johnston Boiler Company, Whittaker, Clark and Daniels, Inc., York International, Johnson Controls, Inc., Frick Company, Mole-Richardson Co., and Great Lakes Power Products, Inc.

Robb W. Patryk HUGHES HUBBARD & REED LLP One Battery Park Plaza New York, New York 10004-1482 Tel.: (212) 837-6861 E-mail: [email protected] Attorneys for Defendant-Appellant R.J. Reynolds Tobacco Co. (as successor-by-merger to Lorillard Tobacco Co.)



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Bradley R. Lawrence KENT & MCBRIDE, P.C. 420 Lexington Avenue, Suite 335 New York, NY 10170 Tel.: (212) 588-9460 E-mail: [email protected] Attorneys for Defendants-Appellants BNS LLC and Littelfuse, Inc.

Christopher S. Kozak LANDMAN CORSI BALLAINE & FORD P.C. One Gateway Center, 4th Floor Newark, NJ 07102 Tel.: (973) 623-2700 E-mail: [email protected] Attorneys for Defendant-Appellant American Biltrite Inc.

Timothy J. McHugh LAVIN, O’NEIL, CEDRONE & DISIPIO 420 Lexington Avenue, Suite 335 New York, New York 10170 Tel.: (212) 319-6898 E-mail: [email protected] Attorneys for Defendants-Appellants 3M Company, International Business Machines Corporation, Amdura LLC, United Technologies Corporation, Goodrich Corporation, and Rohr, Inc.

Philip O’Rourke LEWIS BRISBOIS BISGAARD & SMITH LLP 77 Water Street, 21st Floor New York, New York 10005 Tel.: (646) 666-7700 E-mail: Philip.O’[email protected] Attorneys for Defendants-Appellants Peerless Industries, Inc., Henkel Corporation, Graybar Electric Company, Inc., and Niagara Insulations, Inc.

Andrew Sapon LITCHFIELD CAVO LLP 420 Lexington Avenue, Suite 2104 New York, New York 10170 Tel.: (212) 434-0100 E-mail: [email protected] Attorneys for Defendants-Appellants Arconic, Inc., f/k/a Alcoa, Inc., Dykes Lumber Company, Inc., Fire End & Croker Corp., James Walker Mfg. Co., Inc., Imerys Talc America, Inc., and Cyprus Amax Minerals Company

Diane H. Miller LITTLETON JOYCE UGHETTA PARK & KELLY LLP The Centre at Purchase 4 Manhattanville Road, Suite 202 Purchase, NY 10577 Tel.: (914) 417-3400 E-mail: [email protected] Attorneys for Defendants-Appellants Kerr Corporation, Zy-Tech Global Industries, VWR International, LLC, and Crown Equipment Corporation



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Aris E. L. Dutka LONDON FISCHER LLP 59 Maiden Lane New York, New York 10038 Tel.: (212) 972-1000 E-mail: [email protected] Attorneys for Defendant-Appellant Forest Electric Corporation

Robert C. Malaby Maryellen Connor MALABY & BRADLEY LLC 150 Broadway, Suite 600 New York, NY 10038 Tel.: (212) 791-0285 E-mail: [email protected] [email protected] Attorneys for Defendants-Appellants DeZurik, General Railway Signal Company, Hale Products, Inc., Benfield Electric Supply Co., Inc., The Hallen Construction Co., Inc., J.A. Sexauer, Inc., J.H. France Refractories Company, Kinney Vacuum Company, Leeds & Northrup, Lindberg, Met-Pro Technologies LLC, Successor by Merger to Met-Pro Corporation, on behalf of its Dean Pump Division, NCH Corporation, New York Air Brake Corp., O’Reilly Auto Enterprises, LLC, Roper Pump Company, Sears, Roebuck and Co., Terex Corporation, Tile Council of North America, Inc., The Unimax Corporation, and Vellumoid, Inc.

Carol M. Tempesta MARKS, O’NEILL, O'BRIEN, DOHERTY & KELLY, P.C. 530 Saw Mill River Road Elmsford, New York 10523 Tel.: (914) 345-3701 E-mail: [email protected] Attorneys for Defendants-Appellants Steel Grip Inc., Crescent Electric Supply, Inc. of New York, Columbia Boiler Company of Pottstown, Bari Restaurant & Pizza Equipment, Performance Industries Inc., Adience, Inc. f/k/a BMI, Inc., and JT Falk Company

Timothy Coughlan MARON MARVEL BRADLEY ANDERSON & TARDY LLC 328 Newman Springs Road Red Bank, NJ 07701 Tel.: (732) 945-5530 E-mail: [email protected] Attorneys for Defendant-Appellant Velan Valve Corp.



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Norman J. Golub Stacey H. Snyder MARSHALL, CONWAY & BRADLEY 45 Broadway New York, New York 10006 Tel.: (212) 619-4444 (Main) E-mail: [email protected] [email protected] Attorneys for Defendant-Appellant Slant/Fin Corp.

Joseph P. LaSala McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 1300 Mount Kemble Avenue P.O. Box 2075 Morristown, New Jersey 07962-2075 Tel.: (973) 993-8100 E-mail: [email protected] Attorneys for Defendants-Appellants Benjamin Moore & Co., Burnham, LLP, Crosby Valve, LLC, ExxonMobil Corporation, Eaton Corporation, Eaton Aeroquip, LLC, Flowserve U.S. Inc., solely as successor to Rockwell Manufacturing Company, Edward Valves, Inc. and Nordstrom Valves, Inc., Lipe Automation Corporation, Tuthill Corporation, J.R. Clarkson Company, LLC, Mueller Co., LLC, and Varec Vapor Control, Inc.

Kerryann M. Cook McGIVNEY KLUGER & COOK, P.C. 80 Broad Street, 23rd Floor New York, New York 10004 Tel.: (212) 509-3456 E-mail: [email protected] Attorneys for Defendants-Appellants ABCO Refrigeration Supply Corp., Ace Hardware Corporation, ADSCO Manufacturing, LLC, AII Acquisition, LLC f/k/a Holland Furnace Co. (Athlone Ind), Airweld, ALCOA Inc f/k/a Aluminum Company of America (ALCOA Building Products, Inc.), Alfred Conhagen, Inc., Algoma Hardwoods, Inc., Allied Building Products Corp., Allied Glove Corporation, Alltite Gasket Company, Arbill Industries, American Hardware & Paint Company, Inc., American Meter Company f/k/a Singer Corporation, American Wire and Cable Co., Amtrol Inc. (H.A. Thrush Co and Thrush Company Inc.), Andal Corporation, Argo International Corporation, Ariens Company, Arkeman, on behalf of Huntsman International, LLC, S.A. Armstrong, Arzee Supply Corporation of New Jersey, Atwood & Morrill

Timothy D. Gallagher, Esq. McMAHON MARTINE & GALLAGHER, LLP 55 Washington Street, Suite 720 Brooklyn, New York 11201 (212) 747 1230 Attorneys for Defendants-Appellants Edward Orton Jr. Ceramics Foundation, Eastern Refractories Company, Inc., Hilton Worldwide, Inc., Park Hotels & Resorts, Inc., and Tishman Realty & Construction Co., Inc. n/k/a TTV Realty Holdings, Inc.



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Company, Inc., Auburn Manufacturing, Automatic Heating Supply Corporation, Babbitt Steam Specialty Co., Barnes & Jones Inc., Beckerle Lumber Supply Inc., Bestobell Inc., Botto Mechanical Corporation, Bradco Supply Corporation, Brand Insulations Inc., Campbell Soup Company, Cardone Industries Inc., Caterpillar Inc., CCX Inc., successor to Hatfield Wire & Cable f/k/a Continental Copper and Steel, CMP Industries, Inc., Coastal Plumbing Supply, Courter & Company Inc., DN Lukens Inc. f/k/a Luken Chemical Company, Detroit Stoker Co., Duro Dyne Corporation, Consolidated Plumbing Supply Co. Inc., Electro Mechanical Corp d/b/a Federal Pacific Transformer Company, The Fairbanks Company, Fay Spofford and Thorndike of New York f/k/a Wolff & Munier, Inc., Fischer Brothers Management Company, Fire King International Inc., Ganem Contracting Corp., Gannett Company Inc., George A. Fuller Company, Gerosa Incorporated, GG of Florida, Inc., Garson Plumbing Supplies Inc., Gilbane Building Company, Great Lakes Carbon, Grobet File Company of America LLC, Guardian/Protech Safety Equipment, Inc., H.M. Royal Inc., H.P. Sherman/William E. Williams Valve Corp., Harley Davidson, Harris Corporation, Hayes Pump Inc., J & H Berge Inc., J. Heller & Sons Inc., JH Fischer & Son Inc., JAM Industries, John W. Wallace & Co., K & J Oil Burner Supply Co. d/b/a M & M Oil Burner Supply Co., Laticrete International Inc., Lear Siegler Diversified Holding Corp., Lenox Hill Hospital, Magid Glove & Safety Mfg Co LLC, Marlo Coil & Nuclear Inc., Montgomery Elevator, The Nash Engineering Company, Lincoln Electric Products, KION North America Corp., New York Protective Coverings, North American Manufacturing Company, Niantic Seal Inc., North Shore Plumbing Supply, OC Keckley, Old Castle Retail d/b/a W.R. Bonsail, Orange County Plumbing Supply Inc., Pace University, Pecora Corporation, Polytherem Insulation, R.E.



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Prescott Co. Inc., RCH Newco II LLC, Red Devil Inc., Resinoid Engineering Corp., Ridgewood Corp., Rite Engineering & Manufacturing Corp., Safeguard Industrial Equipment Co., Schweitzer-Mauduit International Inc., Serge Elevator, Sheldon Drullard, Sid Harvey Industries Inc., Simplex Wire & Cable Co., Solow Management Co., Special Electric Company Inc., Spencer Turbine Company, Stavo Industries, Stockham Valves & Fittings Inc., Sunbeam Products Inc., Svedala Industries n/k/a Metso Corp., Tate Andal Inc., Tishman Liquidating Corp., Treadwell Corporation, Triangle PWC Inc., True Value Corporation, Verison Boiler & Repair Co., Vulcan Iron Works, W.S. Darley Co., Water Applications and Systems Corp., Western Auto Supply Company, Zenith Radio Roth Pump, and Zurn Industries Beth L. Hughes MORGAN LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178-0060 Tel.: (212) 309-6000 E-mail: [email protected] Attorneys for Defendant-Appellant Elliott Company

Mark S. Katz Michael T. Lynch MOUND, COTTON, WOLLAN & GREENGRASS LLP One New York Plaza New York, New York 10004 Tel.: (212) 804-4200 E-mail: [email protected] [email protected] Attorneys for Defendant-Appellant KONE Inc.

Santo Borruso Joseph J. Ortego NIXON PEABODY LLP 50 Jericho Quadrangle, Suite 300 Jericho, New York 11753-2728 Tel.: (516) 832-7500 E-mail: [email protected] [email protected] Attorneys for Defendant-Appellant Daimler Trucks North America LLC



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Steven A. Weiner Joshua Lichtenstein Casey Chamra O’TOOLE SCRIVO FERNANDEZ WEINER VAN LIEU LLC 14 Village Park Road Cedar Grove, NJ 07009 Tel.: (973) 239-5700 E-mail: [email protected] [email protected] [email protected] Attorneys for Defendants-Appellants ACME HEAT & POWER INC., AVOCET ENTERPRISES, INC., CLARK RELIANCE CORPORATION, HATZEL AND BUEHLER, INC., RITE ENGINEERING & MANUFACTURING CORP., J.R. CLARKSON COMPANY, successor by merger to IMI CASH VALVE INC., MICHAELS PLUMBING SUPPLY CO., PENNCO, INC., and REEM PLUMBING & HEATING CORP.

Lisa M. Pascarella Stephanie A. DiVita PASCARELLA DIVITA, PLLC 2137 Route 35, Suite 290 Holmdel, New Jersey 07733 Tel.: (732) 837-9019 E-mail: [email protected] [email protected] Attorneys for Defendants-Appellants Rheem Manufacturing Company, NIBCO INC., and Darco Southern, Inc.

John D. Winter Thomas P. Kurland PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Tel.: (212) 336-2000 E-mail: [email protected] [email protected] Attorneys for Defendants-Appellants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (f/k/a Johnson & Johnson Consumer Companies, Inc.)

E. Leo Milonas David G. Keyko Joshua I. Schlenger PILLSBURY WINTHROP SHAW PITTMAN LLP 1540 Broadway New York, New York 10036 Tel.: (212) 858-1000 E-mail: [email protected] [email protected] [email protected] Attorneys for Defendant-Appellant Cleaver-Brooks, Inc.



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Joshua H. Abramson PORZIO, BROMBERG & NEWMAN, P.C. 156 West 56th Street, Suite 803 New York, New York 10019-3800 Tel.: (212) 265-6888 E-mail: [email protected] Attorneys for Defendant-Appellant Schindler Elevator Corp.

Christopher Renzulli Joan M. Gasior RENZULLI LAW FIRM LLP 81 Main Street, Suite 508 White Plains, New York 10601 Tel.: (914) 285-0700 E-mail: [email protected] [email protected] Attorneys for Defendants-Appellants Pfizer Inc. and American Optical Corporation

Brian Schlosser RIVKIN RADLER LLP 926 RXR Plaza Uniondale, New York 11556-0926 Tel.: (516) 357-3000 E-mail: [email protected] Attorneys for Defendant-Appellant Avon Products, Inc.

Peter C. Langenus Matthew S. Tamasco SCHNADER HARRISON SEGAL & LEWIS LLP 140 Broadway, Suite 3100 New York, New York 10005 Tel.: (212) 973-8000 E-mail: [email protected] [email protected] Attorneys for Defendant-Appellant Fort Kent Holdings, Inc. (f/k/a Dunham-Bush, Inc.)

Jennifer L. Budner SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. 850 Third Avenue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected] Attorneys for Defendant-Appellant Weil-McLain

Uri S. Carni SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. 850 Third Avenue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected]

Attorneys for Defendant-Appellant Clark Equipment Company



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Andrew W. Dean SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. 850 Third Avenue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected]

Attorneys for Defendant-Appellant Watts Water Technologies, Inc.

Erich J. Gleber SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. 850 Third Avenue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected] Attorneys for Defendants-Appellants ECR International, Inc., Mannington Mills, Inc., and Aurora Pump Company

Arian Prelvukaj SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. 850 Third Avenue, 11th Floor New York, New York 10022 Tel.: (212) 651-7500 E-mail: [email protected] Attorneys for Defendant-Appellant CompuDyne, LLC f/k/a CompuDyne Corporation, Individually and as Successor to York Shipley, Inc.

Michael J. Testa SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. 850 Third Avenue, Suite 1100 New York, New York 10022 Tel.: (212) 651-7425 E-mail: [email protected] Attorneys for Defendant-Appellant Rogers Corporation

Leonard F. Lesser SIMON LESSER PC 355 Lexington Avenue, 10th Floor New York, New York 10017 Tel.: (212) 599-5455 E-mail: [email protected] Attorneys for Defendants-Appellants Emerson Electric Co., Fisher Controls International LLC, Appleton Electric LLC, ASCO Valve, Inc.

Joseph Koczko Ruthe Nepf THOMPSON HINE LLP 335 Madison Avenue, 12th Floor New York, New York 10017 Tel.: (212) 344-5680 Email: [email protected] [email protected] Attorneys for Defendants-Appellants Central Hudson Gas & Electric Corporation, Alcoa Steamship Company, Inc., Apex Oil Company, Inc., American Trading and Production Corporation, Farrell Lines Incorporated, Keystone Shipping Company, Keystone Tankship Corporation, Maersk B.V., Maersk Inc., Maersk Line, Limited



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Jonathan R. Harwood TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP 7 Skyline Drive Hawthorne, New York 10532 Tel.: (914) 347-2600 E-mail: [email protected] Attorneys for Defendant-Appellant Wayne/Scott Fetzer Company d/b/a Wayne Combustion Systems

Richard P. O’Leary TROUTMAN SANDERS LLP 875 Third Avenue New York, New York 10022 Tel.: (212) 704-6138 Email: [email protected] Attorneys for Defendants-Appellants Fisher Scientific, Inc., Hercules, Inc., Mestek, Inc., Parker-Hannifin Corporation, Standard Motor Products, Inc.

Giovanni Regina WATERS, MCPHERSON, MCNEILL, PC 300 Lighting Way Secaucus, NJ 07096 Tel.: (201) 319-5743 E-mail: [email protected] Attorneys for Defendants-Appellants Riley Power, Inc. and Turner Construction Co., Inc.

William E. Vita WESTERMAN BALL EDERER MILLER ZUCKER & SHARFSTEIN, LLP 1201 RXR Plaza Uniondale, New York 11556 Tel.: 516-622-9200 E-mail: [email protected] Attorneys for Defendant-Appellant Hollingsworth & Vose Company

John S. Howarth WILBRAHAM, LAWLER & BUBA 140 Broadway, 46th Floor New York, NY 10005 Tel.: (212) 858-7575 Attorneys for Defendants-Appellants Arconic f/k/a Alcoa Inc., Karnak Corp., Reynolds Metals Company

Elizabeth M. Young WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 150 East 42nd Street New York, New York 10017 Tel.: (212) 490-3000 E-mail: [email protected] Attorneys for Defendants-Appellants Chevron U.S.A. Inc., Texaco Inc., Gulf Oil Corporation, Hess Corporation, Ira S. Bushey & Sons, Inc., Glas-Col, LLC, Hitachi America, Ltd., Enerjet Corporation, New Yorker Boiler Company, Inc.



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DEFENDANT’S RIDER B

Counsel for NYCAL Plaintiffs-Respondents

LEVY KONIGSBERG LLP 800 Third Avenue New York, New York 10022 Telephone: 221-605-6200 Facsimile: 212-605-6290

BELLUCK & FOX, LLP 546 Fifth Avenue New York, New York 10036 Telephone: 212-681-7575 Facsimile: 212-681-1574

CELLINO & BARNES, P.C. 420 Lexington Ave, Suite 2140 New York, New York 10170 Telephone: 800-888-8888

THE EARLY LAW FIRM, LLC 360 Lexington Ave, 20th floor New York, New York 10017 Telephone: 212-986-2233 Facsimile: 212-986-2255

GORI JULIAN & ASSOCIATES, P.C. 360 Lexington Avenue, 20th Floor New York, New York 10017 Telephone: 618-307-4085

SEEGER WEISS LLP 777 Water Street, 26th Floor New York, New York 10005 Telephone: 212-584-0700

THE LANIER LAW FIRM PLLC Tower 56, 126 East 56th street, 6th FL New York, New York 10022 Telephone: 212-421-2800

KARST & VON OISTE, LLP 576-5th Avenue, Suite 706 New York, New York 10036 Telephone: 212-764-3900



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MOTLEY RICE LLC 600 Third Ave, Suite 2101 New York, New York, 10016 Telephone: 212-577-0047 Facsimile: 212-577-0054

MEIROWITZ & WASSERBERG, LLP 233 Broadway, Ste 950 New York, New York 10279 Telephone: 212-897-1988

MAUNE, RAICHLE, HARTLEY, FRENCH, &MUDD, LLC 8 West 38th Street, Suite 1001 New York, New York 10016 Telephone: 212-354-1518

NAPOLI SHKOLNIK PLLC 360 Lexington Avenue New York, New York 10017 Telephone: 844-230-7676

SIMMONS HANLY CONROY LLC 112 Madison Avenue New York, New York 10016 Telephone: 212-784-6400

WEITZ & LUXENBERG, P.C. 700 Broadway New York, New York 10003 Telephone: 212-558-5500 Facsimile: 212-344-5462

WILENTZ, GOLDMAN & SPITZER PA 110 William Street New York, New York 10038 Telephone: 212-267-3091 Facsimile: 212-267-3828

THE WILLIAMS LAW FIRM, PC 245 Park Avenue New York, New York 10167



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THE DEARIE LAW FIRM, P.C. 515 Madison Avenue – Suite 1118 New York, New York 10022 Telephone: 212-908-0404 Facsimile: 212-980-0555

BARON & BUDD, P.C. 3102 Oak Lawn Ave, Suite 1100 Dallas, Texas 75219-4281 Telephone: 214-521-3605 Facsimile: 214-520-1181

PHILLIPS AND PAOLICELLI, LLP 747 Third Ave, 6th FL. New York, New York 10017 Telephone: 212-388-5100

THE FERARRO LAW FIRM Brickwell World Plaza 600 Brickwell Ave, Suite 300 Miami, Florida 33131 Telephone: (305) 375-0111 Facsimile: (305) 379-6222



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to be argued by: e. eo ilonas county clerk’s index no new

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