IN RE EASTERN AND SOUTHERN DISTRICTS ASBESTOS LIT., No. NYAL 4000

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation772 F. Supp. 1380
Decision Date30 August 1991
PartiesIn re EASTERN AND SOUTHERN DISTRICTS ASBESTOS LITIGATION. This document applies to: All Brooklyn Naval Yard Shipyard Cases.
Docket NumberNo. NYAL 4000,No. TS 90-9999.

772 F. Supp. 1380

In re EASTERN AND SOUTHERN DISTRICTS ASBESTOS LITIGATION.
This document applies to: All Brooklyn Naval Yard Shipyard Cases.

No. NYAL 4000, No. TS 90-9999.

United States District Court, E. and S.D. New York.

August 30, 1991.


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Steven J. Phillips, Moshe Maimon, Alani Golanski, Levy, Phillips & Konigsberg, New York City, for plaintiffs

Joyce A. Lagnese, Frank H. Santoro, Danaher, Tedford & Lagnese, Hartford, Conn., for Pittsburgh Corning and Fibreboard.

Louis C. Woolf, Baker, Worthington, Crossley, Stansberry & Woolf, Knoxville, Tenn., for Owens Illinois.

Richard P. O'Leary, McCarter & English, Newark, N.J., for Keene.

Steven M. Sold, Gordon & Silber, New York City, for Manville Personal Injury Settlement Trust.

JACK B. WEINSTEIN, District Judge:

I. Introduction ........................................................... 1384
                II. Facts .................................................................. 1385
                III. Propriety of Consolidation ............................................. 1387
                IV. Erie Concerns and State Decisional Law ................................. 1388
                V. General Obligations Law Section 15-108 ................................. 1391
                 A. The Statute and Legislative History ................................. 1391
                 B. Method of Calculation of G.O.L. § 15-108 Set-Offs .............. 1393
                 C. The Manville Personal Injury Settlement Trust ....................... 1397
                 1. Phase II and Phase III Trials .................................... 1397
                 2. Phase I Trials ................................................... 1399
                 D. Reallocation of Nonparty and Bankrupt Shares ........................ 1399
                VI. Actions Subject to Article 16 of New York Civil Practice Law and Rules.. 1403
                VII. Flintkote .............................................................. 1405
                VIII. Vernon Green: A Two-Injury Case ........................................ 1406
                

772 F. Supp. 1384
IX. Interest Pursuant to New York Estate, Powers and Trust Law Section 5-4.3 ............................................................. 1407 A. Non-settling Defendants .......................................... 1407 B. The Manville Trust ............................................... 1410 X. Collateral Source Payments .......................................... 1410 XI. Calculations With Respect to Future Damages ......................... 1410 XII. Order of Computation ................................................ 1411 XIII. Remaining Motions ................................................... 1412 XIV. Conclusion .......................................................... 1412

MEMORANDUM AND ORDER

I. INTRODUCTION

The New York Naval Shipyard, located in Brooklyn, is commonly referred to as the Brooklyn Navy Yard. It was the construction site of many of the nation's finest and most powerful naval vessels. During World War II and for the next thirty years thereafter, thousands of its workers were exposed to dangerous airborne asbestos fibers without being advised of the potential health consequences. The Navy, though aware of the hazards posed by asbestos dust, in its urge to build its warships as quickly as possible, did not inform workers of the dangers and neglected to take available protective precautions. The United States now disclaims liability from behind its shield of sovereign immunity. Those injured have therefore turned to the manufacturers for redress, basing their claims on lack of warning on products or packaging.

Latency before manifestation of asbestos diseases is often measured in decades. By the early 1970's, increasing numbers of Navy Yard workers were experiencing asbestos-related injuries from exposure beginning as early as the 1930's. Since the New York statutes of limitations ran from date of exposure, not discovery, their claims were barred. It was not until 1986 that New York amended its statute of limitations to start its running on discovery of the disease. Previously barred suits were allowed to be filed. The result was a large influx of asbestos cases into New York's state and federal courts.

The Eastern and Southern Districts of New York have consolidated all asbestos cases filed in either district for pretrial and control purposes before Judge Charles P. Sifton. Brooklyn Navy Yard cases were assigned to Judge Jack B. Weinstein. He presided over a series of settlements and trials involving personal injury and wrongful death that allegedly resulted from exposure to asbestos in the course of employment at the Yard.

Following the jury verdicts, the parties have filed a number of post-trial motions. Defendants challenge the propriety of the consolidated trials, a contention without substantial merit. All parties pose a series of difficult questions on how the jury verdict should be molded in the light of a variety of recent New York statutes.

The process of translating the jury verdicts into judgments in New York is governed by an extremely complex statutory scheme. It is one example of a wave of "tort reform" that swept the country in the 1980's. See generally P. Schuck, Tort Law and the Public Interest: Competition, Innovation and Consumer Welfare (ed. 1991); Gellis, Legislative Reforms of Governmental Tort Liability: Overreacting to Minimal Evidence, 21 Rutgers L.Rev. 375 (1990); Priest, Modern Tort Law and Its Reform, 22 Valparaiso L.Rev. 1 (1987). Amid a furor of private and public sector sentiment fearful of increased litigation

772 F. Supp. 1385
and its costs, every state legislature considered some form of tort reform legislation between 1985 and 1987 and forty-two states enacted statutes. Priest, supra, at 3; see Selected State Legislative Action Re: Affordability and Availability of Liability Insurance (National Conference of State Legislatures Aug. 4, 1986). New York's legislative battles yielded a statutory scheme built on compromises resulting in ambiguities, inconsistencies and difficulties in administration. The effect and meaning of many of the provisions remains uncertain. Much of the New York tort reform legislation, two authors suggest, "imposes complexities never before saddled on our overburdened bench and ... bar." Kelner & Kelner, Trends in CPLR Articles 50A and 50B, N.Y.L.J. Aug. 27, 1991, at 6

The statutory plan for molding jury verdicts into judgments in New York distinguishes between 1) actions filed as revived personal injury cases previously barred by the old statute of limitations, 2) revived wrongful death actions, 3) tort reform personal injury claims and 4) tort reform wrongful death cases. See McKinney's 1986 Sessions Laws of New York, ch. 682; N.Y. C.P.L.R. § 214-c(2). Examples of all four of these categories are found among the seventy-nine jury verdicts now before the court.

This memorandum addresses questions that remain concerning the jury verdicts in the consolidated Navy Yard trials. Among them are: First, what is the proper method for computing the set-off provided for in New York General Obligations Law section 15-108? Second, under section 15-108 how should shares of fault attributed by the jury to nonparties or bankrupt entities be handled? Third, how should the share allocated to the Manville Personal Injury Settlement Trust be calculated? Fourth, in cases brought under the tort reform statute enacted in 1986, does Article 16 of the New York General Obligations Law dictate that a plaintiff's award of non-economic damages be reduced by the amount of damages or share of fault attributable to non-parties who for reasons of bankruptcy or diversity could not be brought into the action? Fifth, should prejudgment interest awardable under New York Estate, Powers and Trust Law section 5-4.3(a) apply to the entire verdict including sums awarded for future losses and what is the rate? Sixth, in tort reform actions, what is the proper discount rate to apply in reducing future economic damages to present value? Seventh, what is the order in which calculations should be made?

Finally, challenges have been asserted to particular awards and findings made by the jury. None of them have any merit, except in one case where the court found that there was no proof of liability on the part of one defendant and the jury attributed a percentage of liability to that defendant. In every other instance the jury's awards were fully supportable by the evidence.

II. FACTS

On January 18, 1990 Judge Sifton and Judge Weinstein held a joint conference to consider means for resolving common legal and factual issues arising in cases of workers exposed to asbestos while working in the Brooklyn Navy Yard. On January 22, 1990 several hundred personal injury and wrongful death asbestos cases with a substantial nexus to the Brooklyn Navy Yard were reassigned to Judge Weinstein for all purposes. This Judge has also been designated to sit as a Judge of the Southern District continuously since January 23, 1990.

A similar consolidation of several hundred Navy Yard cases was assigned to State Supreme Court Justice Helen E. Freedman. The state and federal courts embarked upon a cooperative program for the handling of these Brooklyn Navy Yard cases. The joint federal and state consolidation totalled over 600 cases with plaintiffs claiming compensatory damages in the hundreds of millions of dollars and punitive damages in the billions.

Justice Freedman and this court jointly appointed Kenneth R. Feinberg as Referee and Settlement Master. In re Joint Eastern & Southern Dists. Asbestos Litig., 129 F.R.D. 434 (E. & S.D.N.Y. & N.Y.Sup.Ct. 1990). With his invaluable assistance, the

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majority of plaintiffs settled almost all of their claims against the nearly 100 manufacturers and distributors initially sued. Some cases settled entirely; some went to trial against a few manufacturers.

Proceeding on an expedited basis, the Brooklyn Navy Yard cases were...

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59 practice notes
  • State of N.Y. v. Blank, Nos. 1092-1094
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 13 Junio 1994
    ...Id. (citing Minotti v. Lensink, 798 F.2d 607, 610-11 (2d Cir.1986)); see also In re Eastern and Southern Districts Asbestos Litig., 772 F.Supp. 1380, 1389 (E. & S.D.N.Y.1991) (predicting New York law), rev'd on other grounds, In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Cir.19......
  • Chase Manhattan Bank, NA v. T & N PLC, No. 87 Civ. 4436 (JGK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 18 Octubre 1995
    ...forum 905 F. Supp. 114 state would resolve the issue. Travelers, 14 F.3d at 119; In re Eastern and Southern Districts Asbestos Litig., 772 F.Supp. 1380, 1388-91 (E. & S.D.N.Y.1991) (Weinstein, J.), rev'd on other grounds sub nom. In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Ci......
  • Wilson v. Haria and Gogri Corp., No. CIV.S-05-1239 LKK/DAD.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 22 Marzo 2007
    ...9. The California Supreme Court denied the petition for review on January 17, 2007. 10. Compare In re E & S Dists. Asbestos Litig., 772 F.Supp. 1380, 1391 (S.D.N.Y.1991), Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003), Aceto v. Zurich Ins. Co., 440 F.2d 1320,1322 (3rd Cir.......
  • McCarthy v. Olin Corp., No. 458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 16 Julio 1997
    ..." In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d at 850 (quoting In re Eastern and Southern Districts Asbestos Litigation, 772 F.Supp. 1380, 1390 (E. & S.D.N.Y.1991)). 5 Although the New York Court of Appeals has not addressed the issue of ammunition manufacturer liability, the Forn......
  • Request a trial to view additional results
59 cases
  • State of N.Y. v. Blank, Nos. 1092-1094
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 13 Junio 1994
    ...Id. (citing Minotti v. Lensink, 798 F.2d 607, 610-11 (2d Cir.1986)); see also In re Eastern and Southern Districts Asbestos Litig., 772 F.Supp. 1380, 1389 (E. & S.D.N.Y.1991) (predicting New York law), rev'd on other grounds, In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Cir.19......
  • Chase Manhattan Bank, NA v. T & N PLC, No. 87 Civ. 4436 (JGK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 18 Octubre 1995
    ...forum 905 F. Supp. 114 state would resolve the issue. Travelers, 14 F.3d at 119; In re Eastern and Southern Districts Asbestos Litig., 772 F.Supp. 1380, 1388-91 (E. & S.D.N.Y.1991) (Weinstein, J.), rev'd on other grounds sub nom. In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Ci......
  • Wilson v. Haria and Gogri Corp., No. CIV.S-05-1239 LKK/DAD.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 22 Marzo 2007
    ...9. The California Supreme Court denied the petition for review on January 17, 2007. 10. Compare In re E & S Dists. Asbestos Litig., 772 F.Supp. 1380, 1391 (S.D.N.Y.1991), Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003), Aceto v. Zurich Ins. Co., 440 F.2d 1320,1322 (3rd Cir.......
  • McCarthy v. Olin Corp., No. 458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 16 Julio 1997
    ..." In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d at 850 (quoting In re Eastern and Southern Districts Asbestos Litigation, 772 F.Supp. 1380, 1390 (E. & S.D.N.Y.1991)). 5 Although the New York Court of Appeals has not addressed the issue of ammunition manufacturer liability, the Forn......
  • Request a trial to view additional results

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