Implementation of the vast majority of provisions in a new case management order for the New York City Asbestos Litigation docket have been stayed pending a review by a Manhattan appeals court.
The rules were set to take effect Thursday. But in a handwritten order issued on Wednesday, Appellate Division, First Department, Justice Ellen Gesmer left intact one provision of the new order that has been met with vehement opposition from the asbestos defense bar: Plaintiffs will still be able to assert punitive damages.
A stay on the remaining provisions, which includes a cap on the number of cases that can be consolidated, remains in effect until a First Department panel can rule on an extension of the stay, which may take several weeks.
Seth Dymond, a partner at Belluck & Fox who appeared for the asbestos plaintiffs bar in the matter, said Gesmer’s ruling preserves the right of plaintiffs to move forward with punitive claims. “I think it is definitely a favorable decision to the plaintiffs in this scenario,” he said.
David Keyko, a partner at Pillsbury Winthrop Shaw Pittman and one of the attorneys appearing for the defense bar in the matter, declined to comment.
Punitive damages have been out of plaintiffs’ reach since 1996, when then-Manhattan Supreme Court Justice Helen Freedman indefinitely deferred all punitive claims.
But in 2014, Manhattan Supreme Court Justice Sherry Klein Heitler found that punitive claims could be sought; the First Department affirmed Heitler but stayed the reintroduction of punitive claims to the asbestos docket until a new case management order could be issued.
Manhattan Supreme Court Justice Peter Moulton did just that in June, before stepping down as coordinating judge of the asbestos docket and beginning his new job as a First Department justice.