JOAN A. MADDEN, Justice.
In the above actions, in post-verdict motions, defendants Cleaver Brooks, Inc., (Cleaver-Brooks) and Burnham LLC (Burnham) move, inter alia, for orders compelling plaintiffs to provide documentation, on a continuing basis, pertaining to, all settlements, including settlements amounts with individual entities, that plaintiffs have entered into before, during and after verdict, including settlements with bankruptcy trusts.
Defendants argue that the information is needed for the purposes of molding a judgment, for determining whether plaintiffs withheld material and necessary information during discovery, and, in the event such information was withheld, for assessing whether the jury's apportionment of liability should be set aside. As to molding the judgments, defendants argue that the information and documents they seek are discoverable, as they are entitled to set offs in the amount of these settlements and need this information for such purpose. As to their remaining arguments, defendants argue that plaintiffs did not timely provide information regarding settlements with certain entities, which settlements they allege may have occurred, prior to, or during, trial. Defendants argue that this information should have been disclosed under CPLR 3101(a) which provides that there "shall be all disclosure of all matter material and necessary in the prosecution or defense of an action." Defendants further allege that the information was material as to Article 16 entities, and that they were deprived of an opportunity to present Article 16 evidence as to these allegedly unknown settling entities.
In response, plaintiffs contend that for purposes of molding judgments, defendants are entitled to the aggregate amounts of settlements, and not the amount of, or documents relating to, settlements with individual entities. Plaintiffs contend that the settlement agreements are confidential, and that settlement information was disclosed, that some settlements were reached after trial, and that defendants were apprised of claims plaintiffs made against certain entities, in responses to interrogatories or at depositions. Plaintiffs further argue that based on this information, defendants were on notice of plaintiffs' claims against the entities in issue, so that they had time to prepare for trial, including preparation with respect to Article 16 entities. Plaintiffs also submit in camera, release and indemnification agreements (the Agreements) in connection with the entities in issue, and contend the documents do not contain any "new liability information."
To the extent defendants seek the amounts of, and documents relating to, the settlements with individual entities for the purpose of molding judgments, the motions are denied. At the outset, I note that in NYCAL, it is my practice after verdict to conduct an in camera review of documents related to settled companies and bankruptcy trusts. This review is based on an affidavit of plaintiffs' counsel, and a review of documents related to the settlements, in order to determine the aggregate amount of setoff in an individual case. This "aggregate method" consists of reducing the verdict "either by the total of the dollar amounts to be paid by settling defendants or the total dollar amounts of their corresponding shares of the verdict, allocated in accordance with their apportioned liability, whichever is greater."
Defendants' remaining argument is based primarily on allegations that plaintiffs did not timely disclose settlements and claims of exposure to asbestos from products of other companies or bankrupt trusts, and based, in part, on the decision in
In support of their contention that plaintiffs failed to disclose information, defendants point to plaintiffs' post-trial disclosure in connection with eight (8) settlements with the following defendants or bankruptcy trusts:
The dates of signature in the Agreements are:
With respect to defendants' arguments that they were deprived of information which would have provided evidence in connection with Article 16 entities, plaintiffs contend, as noted above, that the Agreements do not contain any "new liability information," that three of the settlements, in
Defendants' contention that plaintiffs did not timely provide them with disclosures as to claims and settlements against the non-trust entities, with a limited exception as to Owens-Illinois, is without merit. The trial was held between May 28, 2013 and July 23, 2013. The settlements in
Nor does the record support defendants' contention that they were not provided with information as to Brunck's and Levy's claims against these entities. As to exposure to asbestos from products of American Standard, Brunck testified at his deposition on January 12, 2012, to such exposure. As to exposure from products of Ingersoll-Rand, Brunck identified its products in his responses to interrogatories, which was served on January 19, 2012. As to Levy's claims against Honeywell, as the successor-in-interest to Bendix Corporation (Bendix), Levy testified at his deposition on June 20, 2012, to exposure to asbestos in products of Bendix, and identified exposure from Bendix's products in his supplemental/amended answers to interrogatories, which were served on June 13, 2012.
Similarly, the record reveals that, contrary to Cleaver-Brooks' contention, Assenzio provided information as to his claims against Owens-Illinois in his response to interrogatories, which was served on January 6, 2012. While plaintiffs do not contend that they provided settlement information as to Owens-Illinois prior to trial, plaintiffs' response to the interrogatories, gave defendants notice of its claims, which was sufficient to enable defendants to prepare a defense. Moreover, an in camera review of the Agreement with respect to Owens-Illinois, does not reveal any new liability information as to this company.
As to the bankruptcy trusts, H.K. Porter, U.S. Mineral and U.S. Gypsum, plaintiffs have provided documentary evidence that in
While the Agreements show that settlements with these bankruptcy trusts occurred prior to trial, and plaintiffs do not contend they provided such settlement information prior to trial, an in camera review of the trust Agreements, did not reveal any additional liability information as to H. K. Porter, U.S. Mineral, and U. S. Gypsum.
Based on the foregoing, to the extent defendants' motion are based on the alleged non-production of information relating to claims against the eight named trusts and companies, in pre-trial discovery or during trial, the record demonstrates that plaintiffs provided, in a timely fashion, the information they were required to disclose. In light of this disclosure and the lack of new liability information in the Agreements with Owens-Illinois, H. K. Porter, U.S. Mineral, and U. S. Gypsum, and while plaintiffs' failure to disclose the settlements is not condoned, based on the record before me, I conclude that such settlement information would not have assisted defendants in a meaningful way in proving liability against Article 16 entities.
Thus, to the extent defendants cite CPLR 3101 that "all matter and material necessary . . . [for the] defense of an action" is required to be disclosed, this rule does not provide a basis for additional disclosures. As discussed above, plaintiffs provided defendants with disclosures as to claims in a timely fashion, so as to enable defendants to prepare for trial, and the cases defendants cite do not mandate a different result. In
Nor does the decision in
I find that the decision in
For the reasons stated above, defendants have failed to establish a legal or factual basis for that part of defendants' motions seeking discovery of settlement agreements and amounts with respect to these settling entities.
Accordingly, it is
ORDERED that as to the issues raised herein, defendants' motions are denied.