(photo: @NYSCourtsNews)
New York’s asbestos litigation system is broken.
Currently, a procedural loophole in the state’s laws allows a few politically-connected law firms to game the courts and win themselves massive attorneys’ fees by manipulating the truth of their clients’ exposure to asbestos -- intentionally misleading courts and bankruptcy trusts by obscuring the truth.
When a victim of asbestos exposure decides to seek compensation, they can file claims in civil court against the companies they deem responsible, and also seek compensation from the trusts established to handle claims for asbestos manufacturers which have filed for bankruptcy. In theory, the system allows these claimants to be appropriately compensated by all the parties responsible for their exposure.
In practice, however, some lawyers will first file a civil complaint in which they claim a specific company or group of companies are solely responsible for their client’s exposure to asbestos. Once that civil case is concluded – a process that generally takes at least six months and can potentially go on for years – the lawyers often then file multiple bankruptcy trust claims, which present completely new and contradictory claims asserting that multiple bankrupt companies are responsible for their clients’ exposure.
This practice allows lawyers to punish companies in court by placing the full burden of victims’ exposure on a single manufacturer, when in reality, the lawyers know that many other companies were also responsible.
By changing the facts of their claims once the civil portion of the process ends, lawyers are defrauding the bankruptcy trusts and enriching themselves with additional legal fees. The practice obscures the full evidence of the case from the courts and defendants alike, and abuses a system established to fairly and justly offer recompense for victims of asbestos exposure.
No lawyer should be able to falsify the facts of a case simply to line their own pockets, and a legislative remedy to this problem is desperately needed.
Right now, a bill before the New York State Legislature offers a clear solution. Under the Truth, Fairness, and Transparency in Asbestos Litigation Act, all bankruptcy trust claims would be required to be filed within 45 days of the start of any civil action, taking away the opportunity for lawyers to make one claim in court and then present an entirely different story months or years later.
A dozen other states have already beaten New York across the finish line in battling this dishonest practice, including three in just the past year alone. Closing this loophole accelerates compensation for the victims of asbestos exposure, and prevents the fraudulent and blatantly inappropriate misuse of a system designed to help suffering victims and their families.
As quoted by the sponsors of the bill in New York, a federal judge called the use of this practice an “infection” within the legal system, which represents an intentional effort to suppress and obscure evidence during the legal proceedings. Efforts to pass the bill are supported by veterans, lawmakers, business groups, and more, including former judges and lawyers who witnessed these abuses firsthand.
Our legal system is intended to protect all New Yorkers, and to administer justice appropriately and in accordance with the facts of any given case. It’s time for our laws to change and force transparency and honesty into this system, and end this dishonest and indefensible practice.
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Peggy Ableman is a former judge on the Superior Court of the State of Delaware, with 30 years of experience on the bench. During her tenure on the Superior Court, Judge Ableman presided over the state’s asbestos litigation docket, presiding over more than 500 cases.
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(Credit: Edwin J. Torres/ Mayoral Photography Office)
The annual Rite of Bashage on mayoral control of city schools is upon us. This month, Senate Minority Leader John Flanagan will beat up on Mayor Bill de Blasio for all manner of supposed educational sins before caving to an inevitable extension of mayoral control. Having been soundly whipped by the senatorial wet noodle, de Blasio will walk away a winner.
But there is a real education issue this re-election year that the mayor should be pushed on: the matter of a Chancellor search. The public has a right to know which side of the de Blasio record they’ll be voting on.
In 2012, then-candidate de Blasio criticized the serial secret appointments of Joel Klein, Cathie Black, and Dennis Walcott by Mayor Michael Bloomberg. As reported by City & State at the time, de Blasio said, “Cathie Black was pushed down our throat because of mayoral control gone to an undemocratic level. We need a more democratic—small-d democratic—version of mayoral control, and we need a chancellor who is presented to the public, not just forced down our throat.”
A year later, after being elected, he back-tracked, asserting no such democratic process of public involvement was necessary. Chancellor Carmen Fariña was unilaterally appointed without a public search or vetting.
This election is the first time de Blasio’s flip-flopping can be evaluated by voters. More importantly, the manner of a Chancellor search is not a legislative game of “gotcha” but an imminent matter of real world consequence.
The 74-year-old Fariña has kept her commitment to serve out most if not all of de Blasio’s term. But there is little doubt that she will soon leave. The state law up for June renewal gives the Mayor power of appointment. Thus it is entirely appropriate and practical for the Senate to now inquire how de Blasio intends to use this power and if, in keeping with his past statement, a small-d democratic process should be put in place.
There are good policy positions on either side. Maybe unilateral appointment is preferable, allowing the Mayor full authority and accountability for his pick. But a public process would allow for full vetting of candidates by parents, the general public, and the press, who will all have serious interest and questions about anyone in line for this highly important job.
A full-blown public search occurs in many districts but, if it is believed that some desirable applicants would decline an open process, the Mayor could nominate and the City Council could conduct an open confirmation hearing, as with federal cabinet appointees (and some mayoral appointments to boards and commissions, and the head of the Department of Investigation).
Instead of making a spectacle of this approval process, the manner in which this mayor and future mayors should appoint the Chancellor is a worthy topic, providing the Legislature with an opportunity to put politics aside for an important policy and electoral debate.
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David C. Bloomfield is Professor of Education Leadership, Law, and Policy at Brooklyn College and The CUNY Graduate Center. He is the author of American Public Education Law, 3d edition, and other published works. On Twitter @BloomfieldDavid.
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(photo: Michael Appleton/Mayor's Office)
New Yorkers are notoriously opinionated, but how often do they get to tell city leaders what they think?
In January the Citizens Budget Commission surveyed 72,000 randomly selected households across the five boroughs to ask about satisfaction with city services and quality of life. More than 10,000 New Yorkers responded and the results speak loudly about the areas where city leaders must focus on improvement.
Overall only 44% of city residents rate city services as “excellent” or “good.” New Yorkers are most dissatisfied with services for homeless people (14% positive), public housing (20%), services protecting at-risk children (23%), and maintenance of streets and roads (39%). Only 20% believe the City spends tax dollars wisely.
Only half of New Yorkers are satisfied with quality of life in the city overall. Grievances include traffic, air quality, street noise, and rat control. Respondents identified infrastructure, safety, housing, and traffic/mobility as the most important issues requiring greater attention from city government.
Demographic information collected also reveal disparities in ratings between white non-Hispanic residents and Hispanic and black residents. White residents are generally more satisfied than Hispanic and black residents: On 13 of 45 indicators, the disparities in ratings exceed 12 percentage points. For example, 74 percent of white residents were satisfied with their neighborhood as a place to live compared to 50 percent of Hispanic and black residents.
These data provide a valuable management tool to citywide elected leaders, and the Citizens Budget Commission will be analyzing and releasing community board results in coming weeks that will prove useful to local elected leaders, as well.
Surveys gauging satisfaction with city services should be a regular part of how the city does business, but city agencies rarely ask their customers to rate their performance. The results add an important lens to the reams of management data regularly collected and reported; these metrics may not be calibrated to capture results that residents actually care about. For example, the Parks Department consistently states that cleanliness and condition of its parks and playgrounds is acceptable in 85% of cases; however, approximately 55% of New Yorkers rate neighborhood playgrounds and parks positively.
The City of New York conducted a broad citywide satisfaction survey only once before, in 2008. CBC believes city government should conduct such a survey regularly to capture vital insights that can guide administrators in improving government performance. The Mayor and City Council should now create and make public a plan for improvement in the areas that city residents found wanting.
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Maria Doulis is vice president at the Citizens Budget Commission. On Twitter @MariaDoulis and @cbcny. Read the results of the CBC survey here.
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