On Monday July 13, Governor Cuomo appointed four Justices to the Appellate Division, First Department. Two of the appointees, Justice Manuel Mendez and Justice Martin Shulman, have been deeply involved in New York City Asbestos Litigation (“NYCAL”), one of the most active asbestos dockets in the nation.
Justice Mendez became the NYCAL coordinating Judge in 2018, where he established procedures aimed at minimizing the significant backlog of asbestos cases. Working with both sides, he developed four lists of cases based upon living/deceased and FIFO/in extremis clusters, which ultimately led to the resolution of hundreds of cases. Justice Mendez’ system afforded predictability to the defense while providing plaintiffs with immediate trial assignments for those cases that could not be resolved. Over the last two years, Justice Mendez has impacted the litigation through numerous summary judgment and personal jurisdiction decisions, while maintaining focus on the early resolution of cases.
On the other hand, Justice Shulman has tried more asbestos cases than any other Judge in NYCAL, having handled his first case over fifteen (15) years ago. And while he has presided over many cases, Judge Shulman, always engaged both parties to partake in meaningful settlement discussions, to effectuate a resolution of the cases pending before him. He has decided numerous consolidation motions, and addressed novel issues in cases involving complex legal issues and unique products. He authored an often cited choice of laws decision, Tedrick v Colgate-Palmolive (Index No. 190078/2008), wherein he concluded that Oregon’s cap on damages would apply where the plaintiff had been exposed to talc in New York and other locations, but passed away in Oregon.
The First Department is no stranger to Justices who have played active roles in shaping New York’s asbestos docket. Justice Moulton, the NYCAL coordinating Judge prior to Justice Mendez, was appointed to the First Department in 2018. Justices Cynthia Kern and Judith Gische, have also handled their fair share of asbestos cases, including several trials which went to verdict. Finally, newly appointed Justice Saliann Scarpulla, presided over an asbestos trial which resulted in a defense verdict (Thibodeau).
The next NYCAL coordinating judge may be facing the toughest climate yet with unforeseen backlog and unprecedented procedures as a result of the ongoing pandemic. Yet, the biggest question pending in NYCAL right now is, “who will be the next coordinating judge?” Only time will tell.