New York Supreme Court Appellate Division First Department

New York County Clerk s Index No. 190134-2010 New York Supreme Court Appellate Division First Department NEW YORK SUPREME COURT APPELLATE DIVISION FIRST DEPARTMENT ------------------------------------ RUBY E. KONSTANTIN, Individually and as Executrix of the Estate of DAVE JOHN KONSTANTIN, deceased, against Plaintiffs-Respondents, TISHMAN LIQUIDATING CORPORATION, Defendant-Appellant. BRIEF OF COALITION FOR LITIGATION JUSTICE, INC. AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLANT S MOTION FOR LEAVE TO REARGUE OR, ALTERNATIVELY, TO APPEAL TO THE COURT OF APPEALS Konstantin Medvedovsky CROWELL & MORING, LLP 590 Madison Avenue, 20th Floor New York, NY 10022 (212) 223-4000 kmedvedovsky@crowell.com Victor E. Schwartz SHOOK, HARDY & BACON, LLP 1155 F Street, NW, Suite 200 Washington, DC 20004 (202) 783-8400 vschwartz@shb.com Attorneys for Amicus Curiae Coalition for Litigation Justice, Inc. PRINTED ON RECYCLED PAPER

TABLE OF CONTENTS TABLE OF AUTHORITIES... ii ISSUE PRESENTED...1 STATEMENT OF INTEREST OF AMICUS CURIAE...1 STATEMENT OF FACTS...1 INTRODUCTION AND SUMMARY OF THE ARGUMENT...2 ARGUMENT I. Reargument/Review by the Court of Appeals is Needed to Provide Clearer Standards For Consolidation Decisions...4 Page II. III. A Permissive Approach to Consolidation is Highly Prejudicial to Defendants and Raises Due Process Concerns...7 A Permissive Approach to Consolidation is Out of Step With The Clear Trend Nationwide and Will Invite More Cases...9 IV. Individualized Justice Would Not Clog The Trial Courts... 14 CONCLUSION... 15 PRINTING SPECIFICATIONS STATEMENT... End CERTIFICATE OF SERVICE... End

TABLE OF AUTHORITIES CASES Page 3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005)... 13 Alexander v. AC & S, Inc., 947 So. 2d 891 (Miss. 2007)... 13 Albert v. Allied Glove Corp., 944 So. 2d 1 (Miss. 2006)... 13 Amchem Prods., Inc. v. Rogers, 912 So. 2d 853 (Miss. 2005)... 13 Bartel v. John Crane, Inc., 316 F. Supp. 2d 603 (N.D. Ohio 2004), aff d sub nom. Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005)...8 Curry v. Am. Standard, 2010 WL 6501559 (S.D.N.Y. Dec. 13, 2010)...7 Harold s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493 (Miss. 2004)... 13 Ill. Cent. R.R. v. Gregory, 912 So. 2d 829 (Miss. 2005)... 13 In re Asbestos Litig., 911 A.2d 1176 (Del. Super. Ct. New Castle Cnty.), appeal refused, 906 A.2d 806 (Del. 2006)...8 In re Asbestos Personal Injury and Wrongful Death Litig. Global, 2014 WL 895441 (Md. Cir. Ct. Baltimore City Mar. 5, 2014)... 10-11 In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Cir. 1992)...7 In re Garlock Sealing Techs., LLC, 504 B.R. 71 (Bankr. W.D.N.C. 2014)...4 In re Joint E. & S. Dists. Asbestos Litig., 125 F.R.D. 60 (E.D.N.Y. 1989)...9 In re New York City Asbestos Litig., 2014 WL 2972304 (N.Y. App. Div. 1st Dep t)...passim In re New York City Asbestos Litig., 2014 WL 1767314 (N.Y. Sup. Ct. N.Y. Cnty. Apr. 8, 2014)...3 In re New York City Asbestos Litig., 37 Misc.3d 1232(A), 966 N.Y.S.2d 347, 2012 WL 6554893 (N.Y. Sup. Ct. N.Y. Cnty. Nov. 15, 2012)...3 ii

In re Seventh Judicial Dist. Asbestos Litig., 191 Misc.2d 625 (N.Y. Sup. Ct. Monroe Cnty. 2002)...5 Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir. 1990)...7 Malcolm v. Nat l Gypsum Co., 995 F.2d 346 (2d Cir. 1993)...passim STATUTES Ga. Code Ann. 51-14-11... 13 Kan. Stat. Ann. 60-4902(j)... 13 N.Y. C.P.L.R. 602(a)...passim Tex. Civ. Prac. & Rem. Code Ann. 90.009... 13 OTHER AUTHORITIES Peggy L. Ableman, The Garlock Decision Should Be Required Reading for All Trial Court Judges in Asbestos Cases, 37 Am. J. Trial Advoc. 479 (2014)...4 Peggy L. Ableman, A Case Study From a Judicial Perspective: How Fairness and Integrity in Asbestos Tort Litigation Can Be Undermined by Lack of Access to Bankruptcy Trust Claims, 88 Tul. L. Rev. 1185 (2014)...4 James M. Beck, Little in Common, 53 No. 9 DRI For The Def. 28 (Sept. 2011)...7 Mark A. Behrens, What s New in Asbestos Litigation?, 28 Rev. Litig. 501 (2009)... 11 Lester Brickman, Fraud and Abuse in Mesothelioma Litigation, 88 Tul. L. Rev. 1071 (2014)...4 Court of Appeals of the State of New York, 2013 Annual Report of the Clerk of the Court (2013)...4 Editorial, Unbundling Asbestos, Wall St. J., Aug. 21, 2006... 12 Richard O. Faulk, Dispelling the Myths of Asbestos Litigation: Solutions for Common Law Courts, 44 S. Tex. L. Rev. 945 (2003)... 10 iii

Helen E. Freedman, Product Liability Issues in Mass Torts View from the Bench, 15 Touro L. Rev. 685 (1999)... 10 Patrick M. Hanlon & Anne Smetak, Asbestos Changes, 62 N.Y.U. Ann. Surv. Am. L. 525 (2007)...9 In re Asbestos Litig., No. 77C-ASB-2 (Del. Super. Ct. New Castle Cnty. Dec. 21, 2007) (Standing Order No. 1)... 12 Francis E. McGovern, The Defensive Use of Federal Class Actions in Mass Torts, 39 Ariz. L. Rev. 595 (1997)... 10 Mich. Supreme Court Admin. Order No. 2006-6, Prohibition on Bundling [Asbestos-Related] Cases, (Aug. 9, 2006), available at http://courts.mi.gov/courts/michigansupremecourt/rules/ Documents/3AdministrativeOrders.pdf#search="No. 2006-6"... 12 22 N.Y. C.R.R. 500.22(b)(4)...4 22 N.Y. C.R.R. 600.14(a)...4 Ohio R. Civ. P. 42(A)(2)... 13 Pa. Ct. Com. Pl. Phila. Cnty. Gen. Ct. Reg. No. 2012-01, In re Mass Tort and Asbestos Programs, Protocol (Feb. 15, 2012), at http://www.courts. phila.gov/pdf/regs/2012/cpajgcr2012-01.pdf... 11 Pa. Ct. Com. Pl. Phila. Cnty. Gen. Ct. Reg No. 2013-01, Notice to the Mass Tort Bar, Amended Protocols and Year-End Report, Amended Protocol (Feb. 7, 2013), available at http://www.courts.phila.gov/pdf/regs/ 2012/cpajgcr2012-03.pdf... 11-12 Mark D. Plevin, The Garlock Estimation Decision: Why Allowing Debtors and Defendants Broad Access to Claimant Materials Could Help Promote the Integrity of the Civil Justice System, 23 No. 4 J. Bankr. L. & Prac. NL Art. 2 (Aug. 2014)...4 Hon. Eduardo Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm?, 23 Widener L.J. 97 (2013)... 14-15 San Francisco Trial Judge Vacates His Own Consolidation Order, HarrisMartin s COLUMNS Asbestos, May 2008... 12 iv

Victor E. Schwartz, A Letter to the Nation s Trial Judges: Asbestos Litigation, Major Progress Made Over the Past Decade and Hurdles You Can Vault in the Next, 36 Am. J. of Trial Advoc. 1 (2012)...9 Victor E. Schwartz & Leah Lorber, A Letter to the Nation s Trial Judges: How the Focus on Efficiency Is Hurting You and Innocent Victims in Asbestos Liability Cases, 24 Am. J. Trial Advoc. 247 (2000)... 10 William P. Shelley et al., The Need for Further Transparency Between the Tort System and Section 524(g) Asbestos Trusts, 2014 Update Judicial and Legislative Developments and Other Changes in the Landscape Since 2008, 23 Widener L.J. 675 (2014)...4 James Stengel, The Asbestos End-Game, 62 N.Y.U. Ann. Surv. Am. L. 223 (2006)... 10 Michelle J. White, Asbestos Litigation: Procedural Innovations and Forum Shopping, 35 J. Legal Stud. 365 (June 2006)... 8-9 v

ISSUE PRESENTED Which of the factors identified by the United States Court of Appeals for the Second Circuit in Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993), and additional factors identified in other cases are the factors that New York courts should consider when deciding whether to allow cases to proceed to a consolidated trial, and how are the consolidation factors to be interpreted and applied, while appropriately balancing plaintiffs desire for expediting trials and potential unfairness to defendants of the joint trial? STATEMENT OF INTEREST OF AMICUS CURIAE The Coalition for Litigation Justice, Inc. ( Coalition ) is a nonprofit association formed by insurers in 2000 to address and improve the litigation environment for asbestos and other toxic tort claims. 1 The Coalition files amicus curiae briefs in cases that may have a significant impact on the asbestos litigation environment. Coalition members insure companies that are named as asbestos defendants in New York. Thus, the Coalition has a substantial interest in ensuring that asbestos trials in New York proceed in a fair and sound manner. STATEMENT OF FACTS The Coalition adopts Defendant-Appellant s Statement of the Facts. 1 The Coalition includes Century Indemnity Company; Chubb & Son, a division of Federal Insurance Company; Fireman s Fund Insurance Company; Liberty Mutual Insurance Group; Great American Insurance Company; and Nationwide Indemnity Company.

INTRODUCTION AND SUMMARY OF THE ARGUMENT Consolidated trials present a clash of competing interests: efficiency and fairness. In the right cases, judicial economy can be achieved by joining together actions involving a common question of law or fact. N.Y. C.P.L.R. 602(a). For instance, when a single catastrophic event occurs, joinder of cases at trial can reduce litigation costs, speed recoveries, and make more economical use of the court s time. In that type of situation, it would be highly inefficient to reinvent the wheel in scores of trials involving essentially the same case. On the other hand, as cases become more legally or factually dissimilar, the efficiency sought to be gained by consolidation is reduced, if not lost, and there is a substantial risk of prejudice to the defendants. This case presents the latter situation. Here, in order to give deference to the trial court s decision to consolidate two asbestos cases that were dramatically different different worksites, different occupations, different exposure periods, different diseases, different plaintiff health statuses, and different legal theories this Court concluded that commonality existed because both plaintiffs were occupationally exposed to asbestos until the same year (though for different time periods) and both defendants allegedly failed to act reasonably by permitting the exposures. This is like saying that apples are the same as oranges because they are both fruit. This level of generality gives trial courts too much discretion to join cases that should not be joined at all. 2

Reargument or review by the Court of Appeals would create the opportunity for needed guidance to be given to the trial courts. This Court s opinion acknowledged that the trial courts have been all over the map with respect to applying the factors in Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993), and additional factors identified in other cases to make consolidation decisions. Rather than clear the fog, this Court s opinion could be (mis)interpreted as telling trial courts, do whatever you want. A permissive approach to consolidation is highly unfair to defendants, runs counter to the prevailing trend nationwide, and will invite more litigation to New York City, especially in light of other recent NYCAL trial court rulings that (1) end the nearly twenty-year practice of deferring punitive damages under XVII of the NYCAL Case Management Order ( CMO ), 2 and (2) are being interpreted by plaintiffs counsel to erode an important CMO provision ( XV(E)(2)(1)) 3 that compels the filing of asbestos bankruptcy trust claim forms 2 See In re New York City Asbestos Litig., 2014 WL 1767314 (N.Y. Sup. Ct. N.Y. Cnty. Apr. 8, 2014). 3 XV(E)(2)(1) states, Any plaintiff who intends to file a proof of claim form with any bankrupt entity or trust shall do so no later than ten (10) days after plaintiff s case is designated in a FIFO Trial Cluster, except in the in extremis cases in which the proof of claim form shall be filed no later than ninety (90) days before trial. In In re New York City Asbestos Litig., 37 Misc. 3d 1232(A), 966 N.Y.S.2d 347, 2012 WL 6554893, at *9 (N.Y. Sup. Ct. N.Y. Cnty. Nov. 15, 2012), the court said: The CMO requires Plaintiffs to file their intended claims with the various bankruptcy trusts within certain time limitations, not claims they may or may not anticipate filing. Plaintiffs lawyers may be delaying the filing of bankruptcy trust claims, arguing the claims were not anticipated, contrary to the spirit of the CMO. 3

before trial to promote honesty in litigation and allow defendants to obtain setoffs. 4 Reargument or leave to appeal to the Court of Appeals should be granted so that these issues can be fleshed out more and clearer guidance can be given to trial courts and litigants. This matter involves significant issues that appear to have been overlooked or misapprehended by the court, 22 N.Y. C.R.R. 600.14(a), and are novel or of public importance. 22 N.Y. C.R.R. 500.22(b)(4); see also Court of Appeals of the State of New York, 2013 Annual Report of the Clerk of the Court, at 4 (2013) ( Appeals by permission typically present novel and difficult questions of law having statewide importance. ). ARGUMENT I. REARGUMENT/REVIEW BY THE COURT OF APPEALS IS NEEDED TO PROVIDE CLEARER STANDARDS FOR CONSOLIDATION DECISIONS To date, the New York Court of Appeals has not ruled on the limits of consolidations under N.Y. C.P.L.R. 602(a), although consolidations have important consequences with respect to the administration of justice in the state. 4 See generally In re Garlock Sealing Techs., LLC, 504 B.R. 71 (Bankr. W.D.N.C. 2014); Peggy L. Ableman, The Garlock Decision Should Be Required Reading for All Trial Court Judges in Asbestos Cases, 37 Am. J. Trial Advoc. 479, 486, 488 (2014); Peggy L. Ableman, A Case Study From a Judicial Perspective: How Fairness and Integrity in Asbestos Tort Litigation Can Be Undermined by Lack of Access to Bankruptcy Trust Claims, 88 Tul. L. Rev. 1185 (2014); Lester Brickman, Fraud and Abuse in Mesothelioma Litigation, 88 Tul. L. Rev. 1071 (2014); Mark D. Plevin, The Garlock Estimation Decision: Why Allowing Debtors and Defendants Broad Access to Claimant Materials Could Help Promote the Integrity of the Civil Justice System, 23 No. 4 J. Bankr. L. & Prac. NL Art. 2 (Aug. 2014); William P. Shelley et al., The Need for Further Transparency Between the Tort System and Section 524(g) Asbestos Trusts, 2014 Update Judicial and Legislative Developments and Other Changes in the Landscape Since 2008, 23 Widener L.J. 675 (2014). 4

Presently, New York courts consider Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993), the seminal decision concerning consolidation of asbestos cases for trial. In Malcolm, the court cautioned that the benefits of consolidation can never be purchased at the cost of fairness, id. at 350, acknowledging it is possible to go too far in the interests of expediency and to sacrifice basic fairness in the process. Id. at 354. To strike the appropriate balance as to consolidation, the court adopted a test that includes the following factors: (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged. Id. at 350-51. 5 Applying these criteria, the court in Malcolm held that it was improper for the trial court to consolidate cases that were dissimilar in many of the same ways as the cases here are dissimilar i.e., different worksites, occupations, times of exposure, disease types, and plaintiff statuses (living and dead). New York trial courts have applied the Malcolm criteria inconsistently and often with too much of a laissez-faire approach. As this Court explained, some 5 Courts have also considered additional factors, such as the number of cases affected, Malcolm, 995 F.2d at 352, whether the defendants are substantially the same and represented by the same counsel; the type and manner of the alleged exposure (direct or indirect exposure); and whether or not any of the parties were subject to exposure to asbestos containing products at unrelated work sites. In re Seventh Judicial Dist. Asbestos Litig., 191 Misc. 2d 625, 629 (N.Y. Sup. Ct. Monroe Cnty. 2002). 5

trial courts have rejected a narrow focus on the specific locations of the exposures and types of work in favor of an analysis that considers whether two or more plaintiffs were engaged in an occupation related to maintenance, inspection and/or repair and [were] exposed to asbestos in the traditional way, that is, by working directly with the material for years. In re New York City Asbestos Litig., 2014 WL 2972304, at *6 (N.Y. App. Div. 1st Dep t) (citation omitted). Other courts have focused on the types of asbestos product to which the plaintiffs were exposed, and whether they were manufactured and distributed by different defendants. Id. Additionally, trial courts have ruled inconsistently where different plaintiffs who propose joint trials have different types of mesothelioma. Id. Also, the Malcolm factor regarding the effect of different plaintiffs statuses (i.e., living or dead) has been watered down to an inquiry as to whether defendants would be prejudiced by the presence of deceased plaintiffs in the case. See id. This Court had an opportunity to inject needed clarity into the standards applied in NYCAL cases, but instead adopted an approach that could be viewed as so permissive and deferential that it borders on standardless. The Malcolm factors exist to foster fair trials; those protections are nullified, however, when commonality is established by way of a highly superficial analysis such as here i.e., the plaintiffs were both exposed to asbestos at work, the exposures ended the 6

same year (though spanned different periods of time), and the defendants allegedly failed to act reasonably by permitting those exposures. Reargument/review by the Court of Appeals is needed to give better guidance to the trial courts and litigants and to help ensure that defendants are able to obtain fair and impartial trials. II. A PERMISSIVE APPROACH TO CONSOLIDATION IS HIGHLY PREJUDICIAL TO DEFENDANTS AND RAISES DUE PROCESS CONCERNS The benefits of efficiency can never be purchased at the cost of fairness. Curry v. Am. Standard, 2010 WL 6501559, at *2 (S.D.N.Y. Dec. 13, 2010) (quoting In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 853 (2d Cir. 1992) ( The systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each individual plaintiff's and defendant's cause not be lost in the shadow of a towering mass litigation. ). 6 Consolidations raise this exact concern. Of all the discretionary rulings that a judge can make concerning the course of a trial, few are as pervasively prejudicial to a product liability defendant as deciding to consolidate cases if they bear little similarity other than that the same product resulted in an alleged injury in each case. James M. Beck, Little in Common, 53 No. 9 DRI For The Def. 28, 29 (Sept. 2011). 6 See also Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990) ( Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial. ). 7

A maelstrom of facts, figures, and witnesses is created that juries cannot keep straight. Malcolm, 995 F.2d at 352. Inflammatory facts in one case can color a jury s perception of joined cases and amount to guilt by association. In consolidated trials, there is a higher probability that at least one defendant will appear callous, and this benefits all plaintiffs. Michelle J. White, Asbestos Litigation: Procedural Innovations and Forum Shopping, 35 J. Legal Stud. 365, 373 (June 2006). Furthermore, consolidation can bolster weak or novel claims because jurors may simply assume that if multiple plaintiffs allege injuries from a particular product, then the claims must have merit, even when they lack objective support. Jurors also may have trouble differentiating asbestos products with different fiber types and potencies, lumping them together as simply asbestos. 7 Other risks of prejudice arise when cases of asbestos plaintiffs with different diseases are joined for trial, or when personal injury claims are joined with wrongful death claims. See Malcolm, 995 F.2d at 351 ( The opportunity for prejudice is particularly troubling where asbestosis sufferers, who may under 7 See In re Asbestos Litig., 911 A.2d 1176, 1181 (Del. Super. Ct. New Castle Cnty.) ( [I]t is generally accepted in the scientific community and among government regulators that amphibole fibers are more carcinogenic than serpentine (chrysotile) fibers. ), appeal refused, 906 A.2d 806 (Del. 2006); Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 605 (N.D. Ohio 2004) ( While there is debate in the medical community over whether chrysotile asbestos is carcinogenic, it is generally accepted that it takes a far greater exposure to chrysotile fibers than to amphibole fibers to cause mesothelioma. ), aff d sub nom. Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005). 8

certain circumstances expect close to normal life spans, are paired for trial with those suffering from terminal cancers, such as mesothelioma and lung cancer. ); In re Joint E. & S. Dists. Asbestos Litig., 125 F.R.D. 60, 65-66 (E.D.N.Y. 1989) ( dead plaintiffs may present the jury with a powerful demonstration of the fate that awaits those claimants who are still living. The prejudice lies in the possibility that the living claimants asbestos-related diseases in fact may not prove fatal. ). Empirical evidence shows that smaller consolidations such as those in New York City make settlements more likely, because the risk of going to the trial is extremely large for defendants. White, 35 J. Legal Stud. at 373, 384. [P]laintiffs probability of winning at trial increases by 15 percentage points when they have small consolidated trials rather than individual trials. Id. at 385; see also Patrick M. Hanlon & Anne Smetak, Asbestos Changes, 62 N.Y.U. Ann. Surv. Am. L. 525, 574 (2007) (even small scale consolidations such as in New York City significantly improve outcomes for plaintiffs. ). III. A PERMISSIVE APPROACH TO CONSOLIDATION IS OUT OF STEP WITH THE CLEAR TREND NATIONWIDE AND WILL INVITE MORE CASES Courts have now recognized that, in addition to fundamental fairness and due process problems, consolidating cases to force defendants to settle is likely to fuel more claims. See Victor E. Schwartz, A Letter to the Nation s Trial Judges: Asbestos Litigation, Major Progress Made Over the Past Decade and Hurdles You 9

Can Vault in the Next, 36 Am. J. of Trial Advoc. 1, 13-14 (2012). 8 As Duke Law School Professor Francis McGovern has explained: Judges who move large numbers of highly elastic mass torts through their litigation process at low transaction costs create the opportunity for new filings. They increase demand for new cases by their high resolution rates and low transaction costs. If you build a superhighway, there will be a traffic jam. Francis E. McGovern, The Defensive Use of Federal Class Actions in Mass Torts, 39 Ariz. L. Rev. 595, 606 (1997). 9 These observations are often directed at mass trials, but they also apply to modest trial consolidations. When leverage is applied to force defendants to settle weak or meritless cases, or pay inflated amounts to settle stronger cases, it is inevitable that plaintiffs will flock to take advantage of this situation. See Richard O. Faulk, Dispelling the Myths of Asbestos Litigation: Solutions for Common Law Courts, 44 S. Tex. L. Rev. 945, 954 (2003) ( When plaintiffs learn that a particular 8 See also In re Asbestos Personal Injury and Wrongful Death Litig. Global, 2014 WL 895441 (Md. Cir. Ct. Baltimore City Mar. 5, 2014) ( [W]hen federal and state courts, legislative and judicial branches, appellate and trial benches, in nearly every region of the country, all conclude that consolidation of mass tort claims is ineffective, then we must also take heed of past mistakes so we are not condemned to repeat them. ). 9 See also Helen E. Freedman, Product Liability Issues in Mass Torts View from the Bench, 15 Touro L. Rev. 685, 688 (1999) (in mass tort context, [i]ncreased efficiency may encourage additional filings and provide an overly hospitable environment for weak cases ); James Stengel, The Asbestos End-Game, 62 N.Y.U. Ann. Surv. Am. L. 223, 232 (2006) ( However well-intentioned, these experiments [with aggregation] failed, not only as mechanisms to clear dockets and to adjudicate the claims then pending, but also by facilitating the increasing rate of claim filings.... ); Victor E. Schwartz & Leah Lorber, A Letter to the Nation s Trial Judges: How the Focus on Efficiency Is Hurting You and Innocent Victims in Asbestos Liability Cases, 24 Am. J. Trial Advoc. 247, 249 (2000) (an emphasis on efficiency invites an increase in litigation). 10

forum will coerce settlement procedurally irrespective of the merits of their claims, one doubts whether that forum will remain unclogged for long. ); In re Asbestos Personal Injury and Wrongful Death Litig. Global, 2014 WL 895441 (Md. Cir. Ct. Baltimore City Mar. 5, 2014) (rejecting a mass trial proposal, in part, because it could breed forum shopping, thereby increasing the number of filings in this Court. ). Further, unjustified or exaggerated payments to earlier filing claimants could threaten recoveries by deserving future claimants. And, as explained, consolidated trials raise serious fairness and due process concerns for defendants. Thus, a number of significant jurisdictions have ended or substantially curbed the use of trial consolidations in asbestos cases. Mark A. Behrens, What s New in Asbestos Litigation?, 28 Rev. Litig. 501, 510 (2009). For example, in February 2012, the Philadelphia Court of Common Pleas, which handles a very large docket of asbestos cases, determined that asbestos cases should never be consolidated absent an agreement of all parties, unless the cases involve, among other factors, the same law, same disease, and same plaintiff s law firm. 10 With respect to different types of mesotheliomas, as in the subject action, the Philadelphia protocol states: Pleural mesothelioma is a disease that is distinct 10 See Pa. Ct. Com. Pl. Phila. Cnty. Gen. Ct. Reg. No. 2012-01, In re Mass Tort and Asbestos Programs, Protocol at 2, 6 (Feb. 15, 2012), available at http://www.courts.phila.gov/pdf/regs/2012/cpajgcr2012-01.pdf; Pa. Ct. Com. Pl. Phila. Cnty. Gen. Ct. Reg No. 2013-01, Notice to the Mass Tort Bar, Amended Protocols and Year-End Report, Amended Protocol at 2, 6 (Feb. 7, 2013), available at http://www.courts.phila.gov/ pdf/regs/2012/cpajgcr2012-03.pdf. 11

from mesotheliomas originating in other parts of the body, and will not be tried on a consolidated basis with a non-pleural mesothelioma cases. 11 Delaware and San Francisco trial courts have also sharply limited asbestos trial consolidations. 12 At the statewide level, the Michigan Supreme Court has precluded the bundling of asbestos cases for trial, explaining: The Court has determined that trial courts should be precluded from bundling asbestos-related cases for settlement or trial. It is the opinion of the Court that each case should be decided on its own merits, and not in conjunction with other cases. Thus, no asbestosrelated disease personal injury action shall be joined with any other such case for settlement or for any other purpose, with the exception of discovery. This order in no way precludes or diminishes the ability of a court to consolidate asbestos-related disease personal injury actions for discovery purposes only. 13 11 Pa. Ct. Com. Pl. Phila. Cnty. Gen. Ct. Reg. No. 2013-01, Amended Protocol at 6. After the court made these and other changes, such as the end of reverse bifurcation of asbestos trials, the flow of asbestos and other mass tort cases into Philadelphia declined 70% from 2011, there was heightened settlement activity, and the overall inventory of mass tort cases was reduced by 14% as of the end of 2012. See Pa. Ct. Com. Pl. Phila. Cnty. Gen. Ct. Reg. No. 2013-01, Year- End Report at 6. 12 See In re Asbestos Litig., No. 77C-ASB-2 (Del. Super. Ct. New Castle Cnty. Dec. 21, 2007) (Standing Order No. 1) (prohibiting joinder of asbestos plaintiffs with different claims); San Francisco Trial Judge Vacates His Own Consolidation Order, HarrisMartin s COLUMNS Asbestos, May 2008, at 13 (San Francisco Superior Court order vacating all sua sponte consolidation orders; future consolidations would proceed only by formal motions). 13 Mich. Supreme Court Admin. Order No. 2006-6, Prohibition on Bundling [Asbestos- Related] Cases, (Aug. 9, 2006), available at http://courts.mi.gov/courts/michigansupremecourt/ rules/documents/3administrativeorders.pdf#search="no. 2006-6"; see also Editorial, Unbundling Asbestos, Wall St. J., Aug. 21, 2006, at A10 (supporting the administrative ban on bundling ). The order was adopted, among other reasons, to help to restore traditional principles of due process in asbestos cases by ensuring that they are resolved on the basis of their individual merit, and that they do not serve merely as leverage for the resolution of other cases. Mich. Supreme Court Admin. Order No. 2006-6 (Markman, J.), available at http://www.icle.org/contentfiles/milawnews/rules/ao/2003-47_08-09-06_unformattedorder.html. 12

The Ohio Supreme Court amended the Ohio Rules of Civil Procedure to generally prohibit the joinder of asbestos cases for trial absent the consent of all parties. 14 The Mississippi Supreme Court has severed several multi-plaintiff asbestos-related cases. 15 Texas, Kansas, and Georgia have statutes that generally preclude the joinder of asbestos cases at trial. 16 New York is outside the legal mainstream in clinging to practices that have been discarded as unhelpful relics elsewhere. Reargument or review by the Court of Appeals could address New York s status as an outlier with respect to consolidations. 14 See Ohio R. Civ. P. 42(A)(2) ( In tort actions involving an asbestos claim, a silicosis claim, or a mixed dust disease claim, the court may consolidate pending actions for case management purposes. For purposes of trial, the court may consolidate pending actions only with the consent of all parties. Absent the consent of all parties, the court may consolidate, for purposes of trial, only those pending actions relating to the same exposed person and members of the exposed person s household. ), available at http://www.sconet.state.oh.us/legalresources/ Rules/civil/CivilProcedure.pdf. 15 See, e.g., Alexander v. AC & S, Inc., 947 So. 2d 891 (Miss. 2007); Albert v. Allied Glove Corp., 944 So. 2d 1 (Miss. 2006); Amchem Prods., Inc. v. Rogers, 912 So. 2d 853 (Miss. 2005); Ill. Cent. R.R. v. Gregory, 912 So. 2d 829 (Miss. 2005); 3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005); Harold s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493 (Miss. 2004). 16 See Ga. Code Ann. 51-14-11 ( A trial court may consolidate for trial any number and type of asbestos claims or silica claims with the consent of all the parties. In the absence of such consent, the trial court may consolidate for trial only asbestos claims or silica claims relating to the same exposed person and members of his or her household. ); Kan. Stat. Ann. 60-4902(j) ( A court may consolidate for trial any number and type of silica or asbestos claims with the consent of all the parties. In the absence of such consent, the court may consolidate for trial only claims relating to the exposed person and members of such person s past or present household. ); Tex. Civ. Prac. & Rem. Code Ann. 90.009 ( Unless all parties agree otherwise, claims relating to more than one exposed person may not be joined for a single trial. ). 13

IV. INDIVIDUALIZED JUSTICE WOULD NOT CLOG THE TRIAL COURTS Proponents of consolidation may have the opinion that trying asbestos cases individually will clog the court system. Persons with that view might believe that bundling is necessary for court efficiency. The history of asbestos litigation teaches otherwise. It is the practice of joining cases for trial, whether in mass trials or in smaller joinders, that is responsible for attracting new claims. Individualized justice has not clogged the courts in Ohio, Texas, or Michigan, among others. Finally, the lessons learned in the federal multidistrict asbestos litigation (MDL-875) are instructive. For years, the federal judiciary tried and failed consolidation practices from small consolidations of four to thirty cases, trials in the round, and local consolidations, but none provided any basis for a long-term solution to the so-called asbestos crisis. Hon. Eduardo Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm?, 23 Widener L.J. 97, 108 (2013). Judge Robreno, the judge presiding over MDL-875 since October 2008, realized a new approach was needed. See id. at 126 ( After nearly twenty years of intensive litigation in the federal courts, it seemed apparent to the court that efforts toward aggregation of cases and consolidation of claims had proven ineffective. ). He instituted a one plaintiffone claim process. Id. at 187. Each case is to be disaggregated or 14