May 9, 2017 Eric R. I. Cottle eric.cottle@klgates.com T 212-536-3969 F 212-536-3901 BY FEDERAL EXPRESS OVERNIGHT DELIVERY Mr. John P. Asiello, Esq. Chief Clerk and Legal Counsel to the Court New York Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Respondent Crane Co.'s Letter Brief in the Matter of NYC Asbestos Litigation (Hackshaw v. ABB), APL-2017-00017 Dear Mr. Asiello: Pursuant to the Court's correspondence of April4, 2017, please accept this letter brief in response to the Plaintiffs letter brief of April20, 2017 ("Plaintiffs Letter Brief'), filed in the above-noted matter. For all of the reasons detailed below, Crane Co. respectfully requests that the Court dismiss Plaintiffs appeal or, in the alternative, enter judgment absolute in Crane Co.'s favor. Plaintiff seeks to appeal from an unappealable order to present an issue that the Court has held to be beyond its scope of review in several published opinions (an issue which, regardless, Plaintiff failed to present to any court below and has 1 K&L GATES LLP 599 LEXINGTON AVENUE NEW YORK NY 10022-6030 T +1 212 536 3900 F +1 212 536 3901 klgates.com klgates.com waived). If this Court reaches the merits (it should not), it will find that Plaintiff is attacking the constitutionality of NY CPLR § 5501 (c), and the well-settled and legally correct manner in which the First Department has historically applied that statute, based on nothing more than the unfounded suspicion that the First Department has created some type of damages "cap" in asbestos claims. Plaintiff has created this alleged "cap" from whole cloth. In short, no "cap" exists, and Plaintiffs constitutional challenge fails in all respects should this Court reach it. ARGUMENT· I. Plaintiff's Appeal Is Procedurally Defective and Outside of This Court's Scope of Review For Several Reasons.1 Plaintiffs appeal should be dismissed, because the order of which Plaintiff seeks review is neither reviewable nor appealable, and, in any event, Plaintiff has waived any right to review that she otherwise may have had. The Court should dismiss Plaintiffs appeal on any one of these grounds, without reaching the merits. 1 In light of this, and in light of the fact that Plaintiff presents to the Court a factual question that she failed to preserve, the Court properly concluded that this appeal should proceed, if at all, subject to NYCRR § 500.11. See NYCRR § 500.11(b). 2 A. The First Department's Order Is Not Reviewable. 1. The First Department's Order Is Not Reviewable Under This Court's Precedents, Because It Concerned the Excessiveness of the Jury's Verdict. Plaintiff begins her letter brief by arguing that her inherently fact-based appeal is permissible even though NY CPLR § 5615 precludes the presentation of factual issues in an appeal taken on a stipulation for judgment absolute. The Court should reject that argument, but it need not even reach it. Even if Section 5615 were not applicable here, this Court has held on several occasions that "[a]ny alleged excessiveness or inadequacy of the jury's verdict is ... beyond this court's power of review." Tate by McMahon v. Colabella, 58 N.Y.2d 84, 86 n.l (1983); see also Rios v. Smith, 95 N.Y.2d 647, 654 (2001) ("[T]o the extent [Appellant] contends that the award of damages was excessive, this raises an issue beyond the scope of our powers of review."). Plaintiff attempts to argue around this rule by contending that she seeks review of the method that the First Department utilized to judge excessiveness under NY CPLR § 5501(c), and not the ultimate determination of the First Department. But that is a distinction without a difference. Either way, the Plaintiff asks this Court to overturn the First Department's factual determination regarding the appropriate measure of damages in this case. This Court has repeatedly made clear that it will engage in no such exercise, regardless of whether an appeal arises 3 from a final judgment or from a stipulation for judgment absolute. Thus, the question Plaintiff seeks to present is unreviewable, regardless of whether Section 5615 is applicable here. 2. The First Department's Order Is Not Reviewable Under NY CPLR § 5615, Because It Resolved Factual Questions. Plaintiff takes this appeal pursuant to NY CPLR § 5601 (c). Thus, so long as the appeal to the First Department presented questions of fact, under NY CPLR § 5615, this Court is required to render judgment absolute against Plaintiff "unless the order or opinion of the appellate division recites either that the questions of fact have not been considered or that the court has considered the questions of fact and has determined that it would not grant a new trial or hearing upon those questions." Id. Neither of these conditions is satisfied here, and this appeal inarguably presented questions of fact to the First Department. Thus, judgment absolute in Crane Co.'s favor is the proper outcome. There is no dispute that the First Department's opinion does not contain the language set forth in Section 5615, or that this appeal presented questions of fact. The aspect of the First Department's order that Plaintiff seeks to challenge-the First Department's decision to modify the judgment by vacating the award for past pain and suffering and ordering a new trial on such damages unless Plaintiff stipulated to a remitted award-was a decision that the First Department explicitly stated to be "on the facts" pursuant to NY CPLR § 5712(c)(2). (Order, 13.) The 4 First Department went on to discuss the facts supporting its modification to the award in detail. (Order, 16.) Both Crane Co. and Plaintiff agreed that the First Department had the authority (indeed, the duty) to review the award pursuant to NY CPLR § 5501(c) and remit it if excessive. (See Plaintiffs Brief in the First Department, 41-56.) NY CPLR § 5615 states clearly that orders rendered on the facts are not reviewable by this Court unless the order contains the prescribed statutory language. And, contrary to Plaintiffs suggestion, this Court's precedents make clear that no "exception" exists to this statutory directive. See Claytor v. Wilmot & Cassidy, Inc., 34 N.Y.2d 992 (1974) ("The decision at the Appellate Division having been on the facts, this Court would be bound in any event to affirm and render judgment absolute."); Rattray v. Raynor, 10 N.Y.2d 494, 499 (1962) (holding that where appellants attempted to appeal an Appellate Division order rendered on the law and the facts after stipulating to judgment absolute, "this court would have no alternative, in disposing of such appeals, but to affirm and render judgment absolute against [appellants]. This, of course, follows from the circumstance that the evidence at the trial presented questions of fact. ... "); accord Arthur Karger, The Powers of the New York Court of Appeals§ 8:10, The theory and consequences of the stipulation for judgment absolute-Where questions of fact are involved (September 2016 update) ("[I]n no circumstances can the Court 5 of Appeals review questions of fact or discretion on an appeal from a nonfinal decision.") Plaintiff attempts to argue that, although the First Department's decision was on the facts, Plaintiff raises an issue of law, and construing Section 5615 to preclude her appeal would unduly narrow this Court's scope of review. But that argument fails on two grounds. First, at very best for Plaintiff, she presents a mixed question of law and fact, but this Court does not review such questions on an appeal from a stipulation for judgment absolute under well-settled precedent. See Rattray, 10 N.Y.2d at 499; Karger,§ 8:10. Second, Section 5615 precludes an appeal to this Court if the "appeal" to the Appellate Division "presented questions of fact and a further appeal is taken." Thus, it does not matter whether a plaintiff attempts to reframe a factual issue as a legal (or mixed factual and legal) one on appeal to this Court. Here, the appeal to the Appellate Division presented questions of fact with respect to the proper amount of Plaintiffs damages, and the First Department's consideration of that issue is dispositive under Section 5615. In arguing that her appeal should proceed (and proceed on full briefing and argument), Plaintiff relies heavily on People v. Thiessen, 76 N.Y.2d 816 (1990), but that case is easily distinguishable, because it presented a pure question of law. In Thiessen, the question the Court answered was whether a trial judge erred in applying the amended version of a sentencing statute even though it was not yet 6 effective when the crime at issue was committed. This is a clear question of law- which of two versions of a statute properly applied? By contrast, here, Plaintiff is not arguing that the First Department erred in applying NY CPLR § 5501(c), but rather that the First Department erred in determining that, under the facts presented here, the statute required a remittitur of the damage award. That question, unlike the one presented in Thiessen, is a fact-based, discretionary question. Accordingly, pursuant to NY CPLR § 5615, the Court should render judgment absolute against Plaintiff. B. The First Department's Order Is Not Appealable. Just as Plaintiffs attempted appeal is beyond the Court's scope of review for several reasons, the order Plaintiff seeks to appeal is not an appealable one, because Plaintiffs "stipulation" did not render the First Department's order final for purposes of appeal. This Court has explained that a stipulation for judgment absolute under NY CPLR § 5601 (c) "must ... effect a final determination of the action as to both liability and damages." Lusenskas v. Axelrod, 81 N.Y.2d 300, 301 (1993). Accordingly, such a stipulation is ordinarily, and properly, entered into in a case in which the Appellate Division grants a new trial on both liability and on damages. Here, however, the First Department granted a new trial only on the issue of damages. 7 Plaintiff then filed with this Court a stipulation that states that judgment absolute shall be entered against Plaintiff "in the event that the Court of Appeals affirms the Order of the Appellate Division." (See Plaintiffs Stipulation of January 24, 2017.) However, an affirmance of the First Department by this Court would not result in the termination of this action-it would leave Plaintiff with the right to seek a new trial on the issue of damages, thus making the procedure set forth in NY CPLR § 5601(c) unavailable. See Lusenskas, 81 N.Y.2d at 301. Plaintiff argues in the letter that she filed with the Court at the stage of the preliminary jurisdictional review that Plaintiff sought to stipulate to "a full and complete dismissal of the complaint and judgment absolute against plaintiff on all issues." (See Plaintiffs Letter to the Court of March 1, 2017, p. 2.) But that is not what Plaintiffs stipulation states. For this reason alone, Plaintiffs appeal is procedurally defective and should be dismissed. C. Plaintiff Has Waived This Court's Review. Even if this Court were to set aside the fatal deficiencies in Plaintiffs appeal described above, it would find that Plaintiff has not preserved the challenge she seeks to present here, because ( 1) Plaintiff stipulated to the trial court's decision to remit the verdict, and (2) Plaintiff failed to argue to the First Department that it had to conduct its review under NY CPLR § 5501(c) in any particular manner. 8 This Court has explained that in "making and shaping the common law- having in mind the doctrine of stare decisis and the value of stability in the law- this Court best serves the litigants and the law by limiting its review to issues that have first been presented to and carefully considered by the trial and intermediate appellate courts." Bingham v. New York City Transit Auth., 99 N.Y.2d 355, 359 (2003). For this reason, "this Court with rare exception does not review questions raised for the first time on appeal," even purely legal ones. !d. Plaintiff did not raise below the issue she seeks to present here. Instead, she consented to the trial court's application of the same standards under NY CPLR § 5501(c) that she now seeks to challenge. At the Appellate Division level, she did not present any argument regarding any damages "cap" (or the need to avoid creating one) that she now presents to this Court, either before the First Department rendered its decision or afterward through a motion for reargument. After the jury returned a verdict of $10 million in this matter, the trial court determined that award to exceed reasonable compensation, and granted a new trial unless Plaintiff stipulated to an award of $6 million. (Order, 13.) Plaintiff stipulated to that reduced award. (/d.) In arriving at its holding, the trial court used the same method for assessing the reasonableness of the award under Section 5501(c) that the First Department used here-comparing the jury's award to awards approved in similar cases. (See First Department Record, R. 49-50.) 9 Plaintiff not only did not object to this method of analysis, which Plaintiff now challenges, but rather stipulated to the result the analysis produced. For this reason alone, Plaintiff waived any challenge to the method employed by the trial court, which was also employed by the First Department. Furthermore, Plaintiff failed to argue to the First Department that, as a constitutional matter, the court had to use a particular method of review in applying Section 5501(c). Plaintiff argued to the First Department that the facts here demonstrated that the jury's verdict did not deviate materially from reasonable compensation. (Plaintiffs Brief in the First Department, 41-56.) Plaintiff did not argue that the First Department had to conduct its analysis in the particular way Plaintiff now argues. (See Plaintiffs Letter Brief, 5.) To the contrary, the Plaintiff argued that the First Department's analysis of the remittitur question in several prior cases (which was the same analysis it used in this case and all others- comparing the award at issue to awards in similar cases and evaluating the case facts) was "instructive." (Plaintiffs Brief in the First Department, 45 [citing Donlon v. City of New York, 284 A.D.2d 13 (1st Dep't 2001)].) After the First Department rendered its decision, Plaintiff did not seek reargument although she clearly could have. NY CPLR § 2221 (d) provides that a motion to reargue cannot be based on new facts, but it can raise points of law that the court overlooked or misapprehended. Here, Plaintiff contends that the First 10 Department misapprehended the nature of the legal analysis it was to perform under Section 5501 (c), but Plaintiff did not present that argument to the First Department through a motion for reargument. See Tomlinson v. Bd. of Educ., 112 A.D.2d 576, 577 (3d Dep't 1985) (holding party that seeks to present on appeal issue not raised before the issuance of the order below must move for reargument or renewal to preserve the issue). Similarly, Plaintiff now complains that the First Department's order does not comply with the procedural requirements ofNY CPLR § 5522(b). Crane Co. disagrees (the First Department discussed the facts of this case and why those facts led the court to decide the issue of damages as it did, see Order, 16), but even if Plaintiff were correct, this issue easily could have been resolved through a motion with the First Department to modify its opinion to include additional decisional grounds. At bottom, the only "problem" with the First Department's analysis from Plaintiffs perspective is that it produced a result pursuant to which Plaintiff, having already received over $3 million in settlements in this case, is left without a right of further recovery from Crane Co.2 And this is precisely why the Plaintiff 2 Plaintiff disclosed to the Court in her letter of March 1, 20 1 7 (during the preliminary jurisdictional review phase of this action), that she has recovered settlements in excess of the remitted verdict of$3 million in this matter. (See Plaintiffs Letter to the Court of March 1, 2017, 2.) In light of the fact that 11 stipulated to the trial court's initial remittitur and failed to present to the First Department the arguments she now attempts to present. The Court should decline to reach those arguments. II. NY CPLR § 5501(c) Is Constitutional, and the First Department Properly Applied That Statute Here. For all of the reasons discussed above, the Court should dismiss Plaintiffs appeal and decline to reach the merits. However, should the Court reach the merits, it should enter judgment absolute for Crane Co. The First Department applied NY CPLR § 5501(c) correctly here, did not deprive Plaintiff of any right whatsoever, and did not (and does not) apply any sort of damages "cap" under Section 5501(c) in asbestos cases or otherwise. A. NY CPLR § 5501(c) Is Constitutional Both Facially and As Applied Here. New York adopted the standard for judicial review of damage awards that now appears in NY CPLR § 5501(c) in 1986 upon determining that the standard for reviewing damage awards that previously applied in New York-the "shocks the conscience" standard-placed "an insufficient check on damage awards." Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 423 (1996). The new standard was designed to "invit[e] more careful appellate scrutiny." !d. (quoting Plaintiff has recovered at least $3 million in this action, it is incredible that Plaintiff now argues that she was deprived of her right to a fair trial. She was not. 12 Legislative Findings and Declarations, Ch. 266, 1986 N.Y. Laws 470 (McKinney)). · In 1996, the United States Supreme Court reviewed Section 5501(c), and held that its standards could be applied in federal courts without violating the right to a jury trial guaranteed by the Seventh Amendment to the United States Constitution, so long as the trial judge made an initial determination of excessiveness, which could then be reviewed for an abuse of discretion on appeal. 3 Here, Plaintiff does not even cite Gasperini, let alone explain why the application of Section 5501(c) is consistent with the United States Constitution but inconsistent with New York's Constitution. Plaintiff likewise fails to discuss in any meaningful way the Court's prior decision in O'Connor v. Papertsian, 309 N.Y. 465 (1956). In O'Connor, the Court held that New York's trial courts and Appellate Division have the inherent power to grant a new trial unless a party stipulates to a reduced (or increased) damage 3 The Gasperini Court held that this procedure was necessary to ensure compliance with the "reexamination clause" of the Seventh Amendment, which provides that "no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law." The New York Constitution does not contain such a clause, see N.Y. Constitution, Article I, Section 2, and it is well established in New York that the Appellate Division has broad power to review factual findings in both jury and non jury trials. See Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 498 (1978) ("In reviewing a judgment of Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts."). 13 award, and rejected the argument that the exercise of that power deprives a litigant of his or her constitutional right to a jury trial: The power of the trial court to grant a new trial on the ground that the verdict is inadequate or excessive, is undisputed. Similarly the trial court may deny a motion for a new trial on condition that the party, other than the movant, stipulate to pay a greater amount or accept a lower amount, as the case may be. As we have said earlier, the Appellate Division is enabled to render the judgment which the trial court could or should have rendered 'upon the right of any or all of the parties ... ' and therefore can act as it did in the present case. ld. at 471. Although 0 'Connor was decided before the "deviates materially" standard replaced the "shocks the conscience" standard in reviewing damage awards, there is no principled reason why, as a constitutional matter, one standard would be acceptable and the other unacceptable. Either way, the constitutional question is the same-whether a court may legitimately grant a new trial in the absence of a party's stipulation to a different award of damages. This Court and the United States Supreme Court have already answered that question in the affirmative. Plaintiff provides the Court with no basis to revisit that conclusion here or to depart from the normal principle of construction that "[a] statute is presumptively constitutional." Eaton v. New York City Conciliation and Appeals Bd., 56 N.Y.2d 340, 346 (1982). 14 1. The First Department's Application of NY CPLR § 5501(c) Did Not Violate Plaintiffs Right to a Jury Trial. The conclusion that the First Department's decision did not deprive Plaintiff of her right to a jury trial is best demonstrated by the fact that, pursuant to that decision, Plaintiff had the right to a new jury trial on the issue of damages. Although Plaintiff chose not to exercise that right, the right clearly existed, and Plaintiff was deprived of nothing. In 0 'Connor, the plaintiff argued that she was deprived of her right to a jury trial when the Appellate Division ordered a new trial unless the defendant stipulated to a higher award of damages, the jury's award having been inadequate. !d., 309 N.Y. at 468-69. The O'Connor Court held that this procedure did not deprive plaintiff of her right to a jury trial, and nor does an Appellate Division decision to grant a new trial in the absence of a plaintiffs stipulation to a lower damage award deprive a defendant of its right to a jury trial. !d. at 4 72-73. As the O'Connor Court pointed out, ordinarily, it is the party who won a new trial, but did not receive it, because the other party was permitted to enter a stipulation obviating it, "who invokes the constitutional argument of deprivation of trial by jury." !d. at 473. In this case, the roles are reversed, and it is the party against whom the order granting a new trial was entered (but who had the right to obviate the new trial through a stipulation) who is claiming a constitutional deprivation. But, as O'Connor makes clear, such a party, by definition, has not 15 been deprived of the right to a jury trial, because that party affirmatively elected to forego a new jury trial. If the scenarios detailed in 0 'Connor did not result in the deprivation of a party's right to a jury trial, then, necessarily, the scenario here does not. The First Department has previously pointed out that, were a court to unilaterally substitute a new award of damages in place of the jury's award and enter judgment on that new award, it would violate a plaintiffs rights. Kupitz v. Elliott, 42 A.D.2d 898, 898 (1st Dep't 1973) (holding proper procedure is to grant a new trial in the absence of a stipulation to a reduced award). But that is not what the First Department did here. Rather, it followed to the letter the procedure outlined in 0 'Connor, by granting a new trial on the issue of damages in the absence of Plaintiffs stipulation to a reduced reward. See Siegel, New York Practice§ 407, Additur and Remittitur (5th edition, January 2017 update) (noting that so long as court grants a new trial in absence of stipulation to new damage award, no basis exists for the accusation that the procedure "unconstitutionally denies a party trial by jury"). Thus, there is no basis for Plaintiffs claim of a deprivation of the right to a jury trial. It is likewise difficult to understand how Plaintiff believes she did not receive a "meaningful" hearing on the issue of damages, even setting aside the fact that she had the option of receiving an entirely new trial on that issue after the First 16 Department issued its decision. Although Plaintiff argues that the jury and trial court were in a better position than the First Department to assess the credibility of the witnesses, the credibility of the damages evidence Plaintiff presented was never challenged. Plaintiff devoted approximately 1 0 pages of her appellate brief to explaining to the First Department the uncontested evidence of Mr. Hackshaw's pain and suffering. That recitation of the evidence convinced the First Department that Plaintiff was entitled to a significant $3 million award. These proceedings clearly constituted a "meaningful" trial and assessment of damages under Section 5501(c), and to the extent Plaintiff disagreed, Plaintiff had the right to a new trial on damages. 2. The Application of NY CPLR § 5501(c) Did Not Violate Plaintiffs Right to Equal Protection. Equal protection concerns are implicated when laws treat similarly situated parties differently. See City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (describing the Equal Protection Clause as "essentially a direction that all persons similarly situated be treated alike"); Brown v. State, 89 N.Y.2d 172, 190 ( 1996) (equal protection ensures "that all persons in the same circumstances receive the same treatment"). Here, Plaintiff has shown neither that she was 17 treated differently from some similarly situated party or (if so) that any such treatment was irrational. 4 First, Plaintiff has not established that she received different treatment from any "similarly situated" individual or group. Two individuals are "similarly situated" for purposes of an equal protection analysis if they "are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Although Plaintiff may indeed present a case for damages that is similar to that presented by certain other asbestos claimants, Plaintiff has presented no evidence that her case for damages was similar to some differently treated personal injury plaintiff. For example, Plaintiff erroneously argues that because the period of pain and suffering at issue in Arias v. State of New York, 33 A.D.3d 951 (2d Dep't 2006) (a case involving an accidental drug overdose by an inmate in a state correctional facility) was only 13 days, the fact that the Second Department upheld an award of $350,000 in that case demonstrates the discriminatory treatment of asbestos claimants by the First Department. 5 It does no such thing. 4 Normally, laws or rules comply with principles of equal protection so long as they are "rationally related to a legitimate state interest." Cleburne, 105 U.S. at 440. Plaintiffs claim that some higher standard of scrutiny applies here is based on the erroneous assumption that her right to a jury trial is a fundamental liberty interest protected by "substantive due process." (Plaintiffs Letter Brief, 11.) As discussed below, that assumption is incorrect. 5 Notably, in attempting to compare her case to others, Plaintiff focuses exclusively on the very consideration that she claims to be an improper focus for the analysis 18 N.Y. PJI §§ 2:280 and 2:280.1 make clear that damages for pain and suffering are awarded based upon a factfinder' s assessment of the plaintiffs loss of the enjoyment of life, and not based upon the factfinder' s assessment of the length oftime the plaintiff suffered from his or her injury. NY CPLR § 5501(c), however, involves a different inquiry, focusing the court on the deviation that an award in a given case has, or does not have, from awards in similar cases. The facts of Arias are nothing like the facts presented here, and the First Department would have failed to apply Section 5501(c) properly had it based its determination of reasonableness on such a decision. See Donlon, 284 A.D.2d at 16 (noting that "analogous" cases are "useful as benchmarks" in applying Section 5501(c)) And, even if Plaintiff established sufficient similarity between herself and some other plaintiff to warrant an equal protection review, there is clearly a "rational basis for [any] difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000). Under Section 5501(c), the Appellate Division must review the facts of each case before it to determine the appropriate amount of reasonable compensation. It is certainly "rational" for a court to conclude in such instances that the facts of one matter support a higher, or lower, award than the under Section 5501(c)-the length oftime in which the plaintiff suffered. Plaintiffs argument is not only incorrect, but internally inconsistent. 19 facts of another matter, particularly where the matters have virtually nothing in common, like this case and the Arias case. Finally, it is notable that other plaintiffs in asbestos litigation, including plaintiffs represented by the same counsel representing Plaintiff here, have routinely stipulated to remitted damage awards in such cases. This record is difficult, if not impossible, to reconcile with Plaintiffs claim that the First Department is engaged in pervasive discrimination against a discrete class of plaintiffs. Indeed, in the very cases that Plaintiff relies on to argue for the existence of some damages "cap," Peraica v. A.O. Smith Water Prods. Co., 143 A.D.3d 448 (1st Dep't 2016) and In reNew York City Asbestos Litig. (Sweberg), 143 A.D.3d 483 (1st Dep't 2016),6 the plaintiffs (who were represented by the same counsel representing Plaintiff here) stipulated to the First Department awards as fair and reasonable compensation. The same has been true in numerous other asbestos actions. See, e.g., In reNew York City Asbestos Litig. (Brown), 146 A.D.3d 461, 462-63 (1st Dep't 2017); In reNew York City Asbestos Litig. (Dummitt & Konstantin), 121 A.D.3d 230, 255 (1st Dep't 2014); Penn v. Amchem Prods., 85 A.D.3d 475 (1st Dep't 2011); Ford v. A.O. Smith Water Prods., No. 6 Crane Co. has moved the Court for permission to appeal the First Department's rulings on liability in these two cases, because those rulings are inconsistent with this Court's decision in In the Matter of New York City Asbestos Litig. (Dummitt), 27 N.Y.3d 765 (2016). By citing these decisions here, Crane Co. in no way indicates that it accepts the First Department's findings of liability; Crane Co. does not. 20 190079/2015 (N.Y. Sup. Ct. Apr. 6, 2017) (stipulating to trial court remittitur); Geritano v. A.O. Smith Water Prods., No. 190374/2014 (N.Y. Sup. Ct. Nov. 17, 2016) (same); Hillyer v. A.O. Smith Water Prods., No. 190132/2013 (N.Y. Sup. Ct. July 1, 2015) (same).7 Simply put, there is no evidence of any violation of equal protection, or any other constitutional protection, by the First Department here. Rather, Plaintiff secured a remitted award that she believed to be "too low." In such a case, Plaintiff could simply have opted for a new trial on damages and presented evidence in an attempt to justify a higher award. Instead, Plaintiff has made baseless, inflammatory allegations that the First Department is engaged in a program of discrimination against asbestos claimants. The Court should reject these efforts. 3. The Application of NY CPLR § 5501(c) Did Not Violate Plaintifrs Right to "Substantive Due Process." Plaintiffs argument that the First Department's application of Section 5501(c) violated her right to "substantive due process" is undeveloped and indistinguishable from Plaintiffs argument that she was deprived of her right to a jury trial. Indeed, Plaintiff identifies the fundamental right which she is due as "the right to a jury trial." (Plaintiffs Letter Brief, 11.) However, the right to a jury 7 As Plaintiff points out, the Court may take judicial notice of papers filed in other proceedings in New York County. (Plaintiffs Letter Brief, 7 n.6.) 21 trial is protected by its own provisions of the New York and United States Constitutions. It is not a right separately protected by principles of "substantive due process," and Plaintiff cites no decision suggesting to the contrary. Substantive due process "forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided .... " Reno v. Flores, 507 U.S. 292, 301-02 (1993) (emphasis in original). These fundamental liberty interests include such matters as procreation, marriage, and aspects of family life. See Harrah Independent Sch. Dist. v., Martin, 440 U.S. 194, 198 (1978). A jury trial is a form of procedure, and not a liberty interest. Thus, Plaintiffs argument is, at heart, a "procedural due process" challenge. But it is well established that procedural due process does not mandate a jury trial (or even an evidentiary hearing) before a person can be deprived of a property interest. See Mathews v. Eldridge, 424 U.S. 319,333-34 (1976). Accordingly, to the extent the First Department's procedure complied with Article I, Section 2 of the New York Constitution (it inarguably did), then it also complied with any applicable principle of substantive or procedural due process. B. The First Department's Method of Analysis Is Entirely Consistent With NY CPLR § 5501(c). NY CPLR § 5501(c) provides that, in deciding a challenge to the excessiveness or inadequacy of a jury's award, the Appellate Division "shall determine that an award is excessive or inadequate if it deviates materially from 22 what would be reasonable compensation." !d. Although Plaintiff argues that the mode of analysis that the First Department used to carry out this legislatively- mandated task is infirm, it is the same mode of analysis the First Department has applied for years, and one that Plaintiff herself called "instructive" in this case. There is nothing violative of any rights or erroneous about it. 1. The First Department Applied the Accepted Method of Reviewing Damages Under Section 5501(c) in This Case, and Did Not Apply Any Damages "Cap." a. Plaintiff Has Failed to Demonstrate That Any Damages "Cap" Exists. To express dissatisfaction with this solitary remittitur decision, Plaintiff attempts to fashion a damages "cap" and some type of discriminatory motive from three isolated decisions of the First Department. Plaintiffs entire argument is constructed on this foundation, but it is without substance. Simply put, no "cap" exists. The First Department did not reference a damages "cap" in its opinion in this case or in its decisions in Peraica or Sweberg, on which Plaintiff also relies. Nevertheless, Plaintiff contends that the First Department created this "cap" in "about 2011 ," when the court determined to begin discriminating against plaintiffs in asbestos litigation, but not other forms of litigation, when applying Section 5501(c). (Plaintiffs Letter Brief, 5.) Plaintiff makes this claim without any 23 evidence at all that the First Department has been engaged in any discrimination of any sort, in 2011, before, or after. Plaintiff goes on to argue that, in spite of the fact that the First Department's alleged plan to impose an alleged cap began in 2011, it was only in 2016 that three decisions "collectively made clear" the First Department's improper efforts. (Plaintiffs Letter Brief, 7.) In these three decisions, the First Department happened to reach conclusions regarding the reasonableness of damages that were proportional to one another when considering the time periods of pain and suffering involved. This is hardly surprising since each case was a mesothelioma claim asserted by the same plaintiffs counsel against the same defendant, Crane Co., two of them having been tried together in one consolidated trial. However, the First Department did not indicate in any of these decisions that it had settled upon some type of damages "cap," and the First Department's conclusion as to the reasonable amount of damages in each case was different (specifically, the court approved awards of $3 million here, $9.5 million in the Sweberg matter, and $4.25 million in the Peraica matter).8 If the three decisions Plaintiff cites do indeed represent a damages "cap" then there should not be any recent, remitted asbestos awards in the First 8 This fact, in itself, refutes Plaintiffs theory entirely. If the First Department truly wished to "cap" awards in asbestos cases, it would have selected an aggregate amount that such awards could not exceed. "Capping" the damages attributable to one month of pain and suffering establishes no "cap" at all. 24 Department that exceed it, but there are. For instance, in In reNew York City Asbestos Litig. (Dummitt & Konstantin), 121 A.D.3d 230 (1st Dep't 2014), the First Department upheld an award to plaintiff of estimated future pain and suffering of6 months in the amount of$2.5 million. See id. at 255: see also In the Matter of New York City Asbestos Litig. (Dummitt), 36 Misc.3d 1234(A), at *23 (N.Y. Sup. Ct. 2012) (establishing the 6-month period of future pain and suffering involved). Because this award exceeds the "artificial cap" that Plaintiff has constructed (but which the First Department does not apply), Plaintiff simply ignores it. In In reNew York City Asbestos Litig. (Assenzio), No. 190008/12, 2015 WL 667907, *38-41 (N.Y. Sup. Ct. Feb. 5, 2015), a trial court in the First Department remitted a series of verdicts to amounts that exceed the "cap" Plaintiff imagines to exist. Again, it is difficult to see how the Supreme Court could have done this had it been bound by a cap on damages imposed by the First Department. No such cap exists, and Plaintiffs entire argument fails as a result. b. The First Department Applied Section 5501(c) Here Precisely As the Statute Requires. In determining whether an award "deviates materially" from reasonable compensation, the First Department has explained that its "method" of review as follows: 25 The method of [the court's] review is to evaluate whether the appealed award deviates materially from comparable awards. Such a method cannot, due to the inherently subjective nature of non- economic awards, be expected to produce mathematically precise results, much less a per diem pain and suffering rate. Our task necessarily involves identification of relevant factual similarities and the application of reasoned judgment."9 Donlon, 284 A.D.2d at 15 (emphasis added); see also Gasperini, 518 U.S. at 425 ("To determine whether an award 'deviates materially from what would be reasonable compensation,' New York state courts look to awards approved in similar cases."). The Donlon Court pointed out that this method "is not optional but a legislative mandate" under Section 5501(c). ld., 284 A.D.2d at 16. What Plaintiff wrongly perceives to be some type of arbitrary damages "cap" reflects nothing more than the fact that the First Department assesses awards in similar cases in considering the reasonableness of an award in a given case. Accordingly, Plaintiffs criticism that the First Department's remitted awards in asbestos cases differ from that court's remitted awards in other types of cases is entirely misplaced-Plaintiff herself opens her letter to this Court by quoting from a decision of a Louisiana court discussing the "typical" nature of the injuries associated with a mesothelioma claim. (Plaintiffs Letter Brief, 2.) It would be 9 The First Department also considers (but does not rely exclusively on) the months of suffering in determining the reasonableness of awards. See In reNew York Asbestos Litig. (Marshall), 28 A.D.3d 255, 256 (1st Dep't 2006). Although Plaintiff appears to doubt the veracity of the First Department's statement in this regard, Plaintiff provides the Court with no basis to do so. 26 arbitrary, and not in accord with Section 5501 (c), for the First Department to treat such similarly situated plaintiffs in completely disparate manners. Before the First Department, Plaintiff agreed. Contrary to her current position, Plaintiff argued to the First Department that its mode of comparing a given case to similar cases is appropriate, arguing that the Court's "review of material deviation in Donlon is instructive." (Plaintiffs Brief in the First Department, 45.) Having applied precisely the same method of review here, but having come to a result that Plaintiff does not like, Plaintiff now attacks as infirm the very method that she previously called instructive. The Court should reject this about-face. And the Court should also reject Plaintiffs argument that the Appellate Division is limited to an abuse-of-discretion review under Section 5501(c) where the trial court conducts an analysis under that section in the first instance. This Court has held that "[t]he power to grant a new trial unless a party agrees to stipulate to pay a greater amount or accept a lower amount, as the case may be, is committed to the discretion of the trial court and the Appellate Division."10 Tate by McMahon, 58 N.Y.2d at 86 n.1 (emphasis added). 10 Limiting the Appellate Division's discretion as Plaintiff requests would not only be inconsistent with Section 5501(c) and this Court's precedent but also with the very nature of the Appellate Division's broad jurisdiction. See Hollwedel v. Duffy- Matt Co., 263 N.Y. 95, 106 (1933) ("The Appellate Division might also, in the exercise of its discretion under its power to pass upon the facts, have, even without 27 2. The First Department's Order Complies with NY CPLR § 5522(b). As a final alternative argument, Plaintiff suggests that the First Department's opinion was procedurally, if not substantively, defective for failing to comply with NY CPLR § 5522(b). This argument has no merit, and, even if it did, the appropriate remedy would be temanding the matter to the First Department to write a lengthier opinion, and not reversing the First Department's decision. Accordingly, even if the Court accepts this argument, judgment absolute should enter for Crane Co. Section 5522(b) requires the Appellate Division to "set forth in its decision the reasons" it determined a verdict to be excessive under Section 5501(c), including "the factors it considered in complying" with that section. In so doing, the Appellate Division is not required to expressly compare the damages it believes to be appropriate with damage awards in other cases. In the Matter of New York City Asbestos Litig. (Konstantin), 27 N.Y.3d 1172, 1176 (2016). The First Department satisfied these standards here, devoting an entire paragraph of its opinion to discussing why the facts of this case supported the award of damages the First Department found reasonable. (Order, 16.) exception, passed upon the correct measure of damages."); see also Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43, 52-53 (1999) {"The Appellate Division, as a branch of Supreme Court, is vested with the same discretionary power and may exercise that power, even when there has been no abuse of discretion as a matter of law by the nisi prius court."). 28 CONCLUSION For these reasons, and all of the reasons stated in Crane Co.'s briefing in the First Department, Crane Co. respectfully requests that the Court dismiss Plaintiffs appeal or enter judgment absolute for Crane Co. DISCLOSURE STATEMENT Pursuant to 22 NYCRR § 500.1(f), Crane Co. states that it is a Delaware Corporation that has no corporate parent or affiliate. The following entities are the direct and indirect subsidiaries of Crane Co.: ARDAC Inc.; Armature d.o.o.; Automatic Products (UK) Ltd.; B. Rhodes & Son Ltd.; Barksdale GmbH; Barksdale, Inc.; CA-MC Acquisition UK Ltd.; Coin Controls International Ltd.; Coin Holdings Ltd.; Coin Industries Ltd.; Coin Overseas Holdings Ltd.; Coin Pension Trustees Ltd.; Conlux Matsumoto Co. Ltd.; CR Holdings C.V.; Crane (Asia Pacific) Pte. Ltd.; Crane Aerospace, Inc.; Crane Australia Pty. Ltd.; Crane Canada Co.; Crane Composites Ltd.; Crane Composites, Inc.; Crane Controls, Inc.; Crane Electronics Corporation; Crane Electronics, Inc.; Crane Environmental Inc.; Crane European Financing LLC; Crane Fengqiu Zhejiang Pump Co. Ltd.; Crane Fluid & Gas Systems (Suzhou) Co. Ltd.; Crane Global Holdings S.L.; Crane GmbH; Crane Holdings (Germany) GmbH; Crane International Capital S.a.r.l.; Crane International Holdings, Inc.; Crane International Trading (Beijing) Co. Ltd.; Crane Ltd.; Crane Merchandising 29 Systems Ltd.; Crane Merchandising Systems, Inc.; Crane Merger Co. LLC; Crane Middle East & Africa FZE; Crane Ningjin Valve Co., Ltd.; Crane North America Funding LLC; Crane Nuclear, Inc.; Crane Overseas, LLC; Crane Payment Innovations, Inc.; Crane Payment Solutions GmbH; Crane Payment Solutions Ltd.; Crane Payment Solutions Pty Ltd.; Crane Payment Solutions Srl; Crane Pension Trustee Company (UK) Limited; Crane Process Flow Technologies (India) Pvt. Ltd.; Crane Process Flow Technologies GmbH; Crane Process Flow Technologies Ltd.; Crane Process Flow Technologies S.P.R.L.; Crane Process Flow Technologies S.r.l.; Crane Pumps and Systems, Inc.; Crane Resistoflex GmbH; Crane SC Holdings Ltd.; Crane Stockham Valve. Ltd.; Crane Yongxiang (Ningbo) Valve Company Ltd.; Croning Livarna d.o.o.; Delta Fluid Products Ltd.; Donald Brown (Brownall) Ltd.; ELDEC Corporation; ELDEC Electronics Ltd.; ELDEC France S.A.R.L; Flow Technology Inc.; Friedrich Krombach GmbH Armaturenwerke; Hattersly Newman Hender Ltd.; Hydro-Aire, Inc.; Inta-Lok Ltd.; Interpoint S.A.R.L.; Interpoint U.K. Limited; Kessel (Thailand) Pte. Ltd.; MCC Holdings, Inc.; MEl Australia LLC; MEl Auto Payment System (Shanghai) Ltd.; MEl Conlux Holdings (Japan), Inc.; MEl Conlux Holdings (US), Inc.; MEl de Mexico LLC; MEl UK International Ltd.; MEl Payment Systems Hong Kong Ltd.; MEl Queretaro S. de R.L. de CV; MEl Sarl; Merrimac Industries, Inc.; Mondais Holdings B.V.; Money Controls Argentina SA; Money Controls Holdings Ltd.; 30 Multi-Mix Microtechnology SRL; NABIC Valve Safety Products Ltd.; Nippon Conlux Co. Ltd.; Noble Composites, Inc.; Nominal Engineering, LLC; P.T. Crane Indonesia; Pegler Hattersly Ltd.; Sperryn & Company Ltd.; Terminal Manufacturing Co.; Triangle Valve Co. Ltd.; Unidynamics I Phoenix, Inc.; Viking Johnson Ltd.; W.T. Armatur GmbH; Wade Couplings Ltd.; Wask Ltd.; Xomox Chihuahua S.A. de C.V.; Xomox Corporation; Xomox Corporation de Venezuela C.A.; Xomox France S.A.S.; Xomox Hungary Kft.; Xomox International GmbH & Co. OHG; Xomox Japan Ltd.; Xomox Korea Ltd.; Xomox Sanmar Ltd.; Xomox Southeast Asia Pte. Ltd. cc: Alani Golanski, Esq. WEITZ & LUXENBERG, LLP 700 Broadway New York, NY 10003 (212) 558-5500 (212) 344-5461 (fax) Eric R.I. Cottle Counsel for Defendant-Respondent Crane Co. Counsel for Plaintiff-Appellant (via federal express overnight delivery) 31 CERTIFICATION REGARDING WORD COUNT Pursuant to NYCRR § 500.11(m), I certify that the total word count ofthe body of the foregoing submission (excluding only the disclosure statement and this certificate) is 6,962 words, as counted by the word count function of the Microsoft Office 201 0 word processing program used to prepare the submission. cc: Alani Golanski, Esq. WEITZ & LUXENBERG, LLP 700 Broadway New York, NY 10003 (212) 558-5500 (212) 344-5461 (fax) Re5ZZi;:- Eric R.I. Cottle Counsel for Defendant-Respondent Crane Co. Counsel for Plaintiff-Appellant (via federal express overnight delivery)
