As has been widely reported, the First Department recently affirmed that Justice Heitler’s decision to put punitive damages back in play as part of the main trial in NYCAL cases. However, the First Department also was quick to point out that the Coordinating Justice has the discretion to reintroduce punitive damages, which in light of Justice Heitler’s retirement, falls into the hands of Honorable Peter Moulten. With this as a backdrop, the NYCAL defendants moved for a stay of all asbestos cases in NYCAL, with limited exceptions, in order to resolve a variety of issues with the CMO. While Justice Moulten denied the stay, noting that no NYCAL court has allowed punitive damages since the decision, he made two critical statements. First, in connection with the punitive damage issue, he stated: “The First Department’s affirmance of the April 2014 decision, however, does not explicitly state that plaintiffs in NYCAL have a right to punitive damages. Rather the decision focuses on the power of the Coordinating Justice to reintroduce punitive damages.” After discussing some of the other CMO issues, in addition to punitive damages, Justice Moulten stated: “The court agrees that defendants have raised important issues that warrant a complete re-examination of the CMO. A top to bottom re-examination is necessary for at least two reasons. First, the CMO has many interdependent provisions, and changes to one portion may affect other aspects of the litigation. Second, the court intends to assist the parties in reaching a negotiated agreement. In such a negotiation it is useful at the outset to leave all aspects of the CMO ‘on the table,’ so that the parties have the greatest leeway to reach agreement.” These two statements confirm that the issue of punitive damages, along with limiting joinder, disclosure of bankruptcy claims, forum selection and the burden on a summary judgment motion in asbestos cases, are all in play. Lastly, the court set up a party representative structure and set forth a time schedule for starting the negotiation process.
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