Opinion
84 Civ. 1968 (TPG).
January 3, 2006
OPINION
This opinion will assume knowledge of the unique and complex nature of this matter.
Following the trial and the entry of judgment with respect to the Niagara Falls location, the LMI defendants are appealing. That appeal is scheduled to be heard on February 13, 2006. The LMI defendants have moved to stay the trials relating to the other locations until that appeal has been decided.
The motion is denied.
This case is over 20 years old. It is in reality a collection of many "cases," because each location is a potential subject for a separate trial. There have been thus far trials relating to only four locations. Two occurred prior to the Niagara Falls trial, which was held in the spring of 2005. Subsequently there was another trial last fall. A further trial is scheduled to commence on February 21. No further trials have been scheduled and it would probably not be possible to hold another until the fall of this year. Presumably, by that time, the appeal will have been decided.
Thus the real issue on this motion is whether to stay the February 21st trial.
The main argument of the LMI defendants in support of postponement is that there are issues about the timing of property damage — particularly related to the so-called "compression theory" advocated by Olin — which are before the Court of Appeals and which will shape the issues in future trials far differently from the way they have been shaped in previous trials, if the LMI defendants prevail on the appeal.
The court does not agree. Olin's compression theory has always been hotly disputed and it has been assumed that this theory would at some point go to the Court of Appeals. However, in the Niagara Falls trial and in the subsequent trial in the fall of 2005, the parties and the court agreed that there would be a question put to the jury which would not involve the compression theory and would ask the jury for the entire "uncompressed" damage period. Such questions were posed to the jury in both of the trials which occurred in 2005. The same procedure will be used in the trial scheduled for February 2006.
The LMI defendants complain that the alternative timing question presented in the two 2005 trials — the questions which did not pose the compression theory issue — were accompanied by erroneous or unsatisfactory instructions by the court. To be sure, there was some debate about the nature of these instructions, which was hardly surprising in view of the very complex nature of the problems. But this does not detract from the fact that timing questions to the jury, requested by the LMI defendants to obtain a complete record (and avoid a retrial in the event Olin loses on appeal regarding the compression theory), were posed to the jury and such a question will be posed to the jury at the February trial.
After careful consideration of how best to proceed with this difficult litigation, the court concludes that it is essential to move forward with the February trial. The events involved in these trials occurred decades ago, and the unfortunate fact is that the evidence becomes more and more difficult to bring forward as time goes on. Also, it has recently been revealed that there is a substantial and growing amount of insolvency among the London Market Insurers. Thus, delay threatens the ability to collect on judgments.
The motion to stay further trials is denied.
SO ORDERED.