Leaders of the asbestos litigation bar were peppered with questions Wednesday by an Appellate Division, First Department, panel in a case testing whether punitive damages can be argued before New York City’s special asbestos court.
Such claims were effectively outlawed by a 1996 amendment to the case management order created to expedite cases in the New York City Asbestos Litigation court, known as “NYCAL.”
The “no punitives” order was issued by Justice Helen Freedman, who led NYCAL from 1987 to 2008 before being appointed to the First Department.
Freedman, who retired in October, attended Wednesday’s hearing and occasionally interjected as her former colleagues debated the wisdom of amending her order.
Freedman’s replacement as head of the NYCAL court, Justice Shirley Klein Heitler, granted a motion by the plaintiffs’ bar to allow punitive damages claims in April 2014. Heitler said she could not ignore “the fact that victims of asbestos exposure are permitted to apply for punitive damages in every New York state court except this one. I, for one, cannot justify a situation in which an asbestos plaintiff is permitted to apply for punitive damages in Buffalo but not in this court” (NYLJ, March 2).
The defense bar has appealed her ruling, asserting that “the reasons for the agreement struck by plaintiffs’ and defense counsel and approved by Justice Freedman to defer punitive damages claims are even stronger today than they were 18 years ago.”
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