The current state of asbestos litigation in New York City (NYCAL) continues to evolve as both the plaintiffs’ bar and defense bar deal with a revised Case Management Order (CMO) and judicial turnover.
For a better understanding of the types of claims that are actually being litigated in NYCAL, and what firms are filing these claims, we can look at the current filing trends under the “cluster” procedure that is used in this jurisdiction. The CMO explains there are three dockets used in NYCAL:
(1) Accelerated (or In Extremis) Docket. These are typically the more litigated cases comprised of actions brought by plaintiffs who are terminally ill from an asbestos-related disease with a life expectancy of less than one year or who have a diagnosis of mesothelioma;
(2) Active (or FIFO) Docket. These cases are comprised of all actions brought by or on behalf of plaintiffs who have a functional impairment that meets the a certain minimum criteria; and
(3) Deferred Docket. Lastly, these cases are comprised of all actions brought by or on behalf of plaintiffs alleging injury due to exposure to asbestos who do not meet the minimum criteria for the Active Docket.
For the purposes of this analysis, we will look specifically at the recent filing trends for the NYCAL Accelerated or In Extremis cases. For some brief background, the Court will assign for trial on the first Monday in April (April Cluster) and the first Monday in October (October Cluster) of each calendar year an Accelerated Trial Cluster of living plaintiffs. Each cluster is designated on the first Thursday of the preceding November (for an April Cluster) and May (for an October Cluster). To be eligible for inclusion in an Accelerated Trial Cluster, a plaintiff must be alive and have a pending lawsuit at the time of the application. Each case in an Accelerated Trial Cluster will work through discovery in accordance with the with the discovery order prepared by the Special Master. The discovery order applicable to each Accelerated Trial Cluster will be based on the timeline contained in the model discovery order of the CMO.
After assignment to an accelerated trial cluster, as the case progresses through litigation, cases may be moved out of the current accelerated trial cluster and moved into either a later accelerated trial cluster or into an active trial cluster.
Focusing on the April 2017, October 2017, April 2018, and October 2018 Accelerated Clusters, and the current status of each for mesothelioma and lung cancer claims, there are a total of 146 claims filed by 12 different plaintiff firms in the two 2017 Accelerated Clusters. As you can see below, Weitz & Luxenberg is currently handling nearly half of the claims under the 2017 Accelerated Docket. Belluck & Fox has 15 percent of the claims with Levy Konigsberg (8 percent), Early Lucarelli Sweeny & Meisenkothen (8 percent), and Meirowtiz Wasserberg (7 percent) handling many of the other claims.
The remaining 15 percent of claims are currently handled by seven other plaintiff firms including Cellino & Barnes (1 percent); Gori Julian (2 percent); Karst & Von Oiste (4 percent); Maune Raichle Hartley French & Mudd (1 percent); Simmons Hanly Conroy (3 percent); Wilentz Goldman & Spitzer (2 percent); and The Williams Law Firm (2 percent).
The 2018 Accelerated Clusters currently consist of 194 total claims filed by 14 different plaintiff firms. Here, Weitz & Luxenberg continues to handle the majority of 2018 claims at over 52 percent.
The remaining claims are spread out across thirteen other plaintiff firms including some who lost an overall percentage: Belluck Fox (dropping from 15 percent to almost 7 percent); Levy Konigsberg (dropping from by 8 percent to 6 percent); and Karst & Von Oiste (dropping from 4 percent to 1 percent.
Other firms gained a percentage of cases including Wilentz Goldman & Spitzer who now has 3 percent compared to 2 percent in 2017 and The Williams Law Firm with an increase from 2% to 6% in 2018. The remaining firms stayed relatively consistent with claims in the 2018 cluster including Cellino & Barnes (1 percent); Gori Julian (2 percent); Maune Raichle Hartley French & Mudd (1 percent); and Simmons Hanly (3 percent).
Two additional plaintiff firms also now have cases in a 2018 Accelerated Docket including The Lanier Law Firm (1 percent) and Phillips & Paolicelli (2 percent).
Looking at the “cluster” trends for the April 2017, October 2017, April 2018, and October 2018, the numbers show the number of cases within each cluster by plaintiff firms has stayed somewhat consistent by the bigger players. However, we have also seen a few additional plaintiffs’ firms increasing their percentage of cases in the 2018 accelerated clusters. This will be a trend to monitor going forward as the overall landscape in NYCAL continues to take shape.