Markut v. Verizon New York Inc.
758 F.3d 202
2d Cir.2014Background
- World Trade Center site cleanup workers brought mass tort claims for injuries from airborne contaminants.
- Cases were consolidated in SDNY before Judge Alvin K. Hellerstein for pre-trial management.
- Congress enacted ATSSSA and later the Zadroga Act to create the VCF, with an obligation to withdraw pending civil actions by 2012.
- District court created the TCDI database from interrogatories and core discovery responses to classify plaintiffs and select cases for further discovery.
- Plaintiffs were required to answer 33 interrogatories, including a diagnosis question, and certify them via sworn responses.
- District court dismissed 281 “none” diagnosis-responders for summary judgment and later dismissed 31 for failure to prosecute; other cases moved forward.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment based solely on a 'none' diagnosis answer was proper | Plaintiffs argue ‘none’ does not foreclose injuries; record must be evaluated case-by-case. | Defendants contend ‘none’ shows no cognizable injury and supports dismissal. | Summary judgment improper; must assess individual record before dismissal. |
| Whether the 31 plaintiffs' dismissals for failure to prosecute were proper | Pls argue nunc pro tunc dismissal should reflect December 8 order to allow VCF participation. | Defendants maintain court acted within discretion; no extraordinary circumstances to grant nunc pro tunc relief. | Dismissals for failure to prosecute affirmed; no abuse of discretion. |
Key Cases Cited
- Cortez v. City of New York, 722 F.3d 483 (2d Cir. 2013) (affirms discretionary limits on equitable relief in post-judgment contexts)
- In re New York County DES Litigation, 89 N.Y.2d 506 (N.Y. 1997) (discusses accrual timing in latent toxic-tort injuries)
- Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566 (2d Cir. 1991) (affirms limits on using dissonant affidavits to create genuine issues)
- Paddington Partners v. Bouchard, 34 F.3d 1132 (2d Cir. 1994) (Rule 56(d) considerations for evolving discovery)
- Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77 (2d Cir. 2004) (summary judgment standard and evidence consideration)