New York City Judge Rules that Asbestos Lung Cancer Case Can Proceed to Trial – Levy Konigsberg, LLP Successfully Argues Defendant Waived their Right to Cross-Examine

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Honorable Peter Moulton ruled on December 14th, 2015 that a plaintiffs’ asbestos lung cancer case can proceed to a jury against defendant Aurora Pump Company.

Honorable Peter Moulton ruled on December 14th, 2015 that a plaintiffs’ asbestos lung cancer case (Supreme Court of the State of New York, Index No. 107016-08) can proceed to a jury against defendant Aurora Pump Company.

The plaintiff in the action represented by Levy Konigsberg, LLP provided less than one day of deposition testimony before his failing health necessitated an adjournment. According to J. Moulton’s decision, the plaintiff testified that his asbestos-related lung cancer was caused in part by his work with asbestos-containing gaskets and packing located in and on Aurora pumps during his time as a merchant marine. Unfortunately, the plaintiff succumbed to his asbestos-related lung cancer approximately five years later. J. Moulton explains that despite the testimony against Aurora, at no time during the following five years did Aurora make any attempt to protect their interests by cross-examining the plaintiff.

Instead, Aurora filed a motion with the Supreme Court of New York, New York County seeking dismissal of plaintiff’s claims against them. According to J. Moulton, in Aurora’s motion, they argue the plaintiff’s deposition cannot be used against them because Aurora did not cross-examine the plaintiff. Without the deposition, Aurora argues, there is no evidence to support the plaintiff’s case. The plaintiff’s case is part of the New York City Asbestos Litigation, a large group of asbestos personal injury cases which are coordinated in New York City. Levy Konigsberg represents this plaintiff as well as many others in the New York City Asbestos Litigation.

Judge Moulton, the presiding Judge for the New York City Asbestos Litigation, rejected Aurora’s arguments and denied their requests for dismissal. Judge Moulton explained in his December 14, 2015 opinion that Aurora’s unexplainable inaction during the five year period following plaintiff’s one day of testimony amounts to a waiver of their right to cross-examine the plaintiff. As a result of this waiver, the plaintiff represented by Levy Konigsberg, LLP may use the incomplete deposition to support their claims Aurora. Judge Moulton states in his opinion that “it was incumbent upon Aurora to demand its right to depose plaintiff…[i]nstead, defendant elected to do nothing.”

Because of this ruling, the plaintiff’s family will be able to continue their fight against the defendants that caused their loved one’s disease and demise as the case pushes toward trial. This is an important decision because in some cases plaintiffs with asbestos lung cancer or mesothelioma are unable to complete their depositions due to failing health. According to this opinion, a defendant cannot game the system by doing nothing when a deposition is not completed and then later trying to strike the plaintiff’s testimony. The plaintiff’s family is represented by Levy Konigsberg, LLP and the motion was briefed and argued by LK asbestos attorney Nicholas Novack.

Levy Konigsberg LLP has been representing men and women suffering from asbestos-related lung cancer and mesothelioma for more than 30 years. The firm’s deep team of asbestos trial attorneys consists of three generations of lawyers who learn from each other and pass on knowledge and expertise from generation to generation. In 2013, Levy Konigsberg was named Plaintiff’s Product Liability Law Firm of the Year by U.S. News and World Report. The firm regularly tries and settles asbestos cases throughout the Country. For more information, please call 1-800-637-6529 or visit http://www.levylaw.com.

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James Kramer
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