Matter of New York City Asbestos Litig.
Annotate this CaseDecided on September 15, 2005
Supreme Court, New York County
In Re New York City Asbestos Litigation IGNACIO COLLURA, ET AL, Plaintiffs, A.O. SMITH WATER PRODUCTS, ET AL, Defendants.
112742/04
Appearances:
For the Plaintiff:Belluck and Fox, Esqs.
295 Madison Avenue 37th Floor
New York, NY
By: Jordan Fox
For Defendant
(Goulds Pumps, Inc.):Cullen & Dykman, LLP
177 Montague Street
Brooklyn, NY 11201
By: Theodore Eder & John J. Burbridge, Esqs.
Louis B. York, J.
INTRODUCTION
Before the Court are four personal injury cases assigned to this justice for trial. They are part of the May, 2005 accelerated trial cluster of four asbestos cases. All plaintiffs suffer from the disease mesothelioma, caused by exposure to asbestos. Two of the defendants are alive at this time, two are dead.
Plaintiff moves for joint trials in all four cases on the ground that there are common questions of law and fact. The defendants oppose, arguing that individual differences among the plaintiffs and among the defendants predominate over the common matters. For the reasons that follow, the Court joins the cases for all four plaintiffs who are Collura, Fiore, Flynn and Wilson.
DISCOVERY
The defendants complain about discovery not having been completed. Under the Court's Case Management Order, all discovery, and in fact, all pre-trial motions are to be brought before the Special Master and Justice Freedman, who coordinate the trials of these matters before the several judges in the asbestos group.
There are now approximately 30,000 asbestos cases that are assigned to this court. About 5,000 are in the extremis active docket, while approximately 25,000 are placed on the [*2]deferred docket of non-extremis cases. Every six months in May and November, 200 of them are taken from the extremis docket to be tried as quickly as possible with a schedule set for the following six months. The extremis docket consists of the most dire cases - those where the plaintiffs have died or suffer from an asbestos disease that is fatal. Those cases that came out of the May Extremis docket were supposed to have concluded all discovery and other pretrial activities were to be concluded by that time. My job is to try the case and deal with trial issues such as scheduling trial, deciding motions in limine and dealing with trial matters. Since discovery is not one of them, I will not entertain any discovery matters. I remind the litigants that it is now nearly four months since these cases were originally assigned. They received extra time to complete discovery because, for reasons not pertinent here, they were assigned first to Justice Lebedeff then to Justice Freedman and finally to me. It is reasonable to expect that given the exigency of the situations, whatever discovery was left would have been concluded by now and the parties would be preparing for trial, not dealing with discovery. Only if Justice Freedman or Ms. Pacheco, the Special Master, were inclined to ask the Court for a delay, however, to complete discovery, would I give an adjournment serious consideration.
FACTS
All of the defendants served in the Navy between 1945 and 1947 aboard various naval ships. They all were exposed to asbestos in these ships' boiler engine rooms. Fiore and Collura are alive at this time and are in their 80's. Wilson died at 80 years old and Flynn died at 77. Their exposures overlap from the 40's through the 60's, although they are not identical. A number of the defendants such as Gould's, Bufalo Pumps and Honeywell International are defendants in all four cases. A substantial number of others are defendants in three of the four actions.
DISCUSSION
CPLR 602 provides that whenever there are common questions of law and fact in actions before the Court, it may order joint trials in order to avoid "unnessary costs or delay." In mass torts cases such as this, the Court of Appeals has stated:
It requires little imagination to recognize that without consolidation, the Courts are simply incapable of handling litigation of such volume. The waste of time and expense involved in empaneling separate juries to decide the same sorts of questions over and over again is staggering. This is all the more true when one recognizes that each successive jury must be educated by expert witnesses to understand the toxicity of asbestos fibers, the etiology of asbestos - induced
diseases, the state-of-the-art regarding the industry's knowledge of these dangers through the years, and the economic issues involving loss of services and future income that recur so frequently in these cases.
Consorti v Armstrong World Industries, 72 F3rd 1003, 1006 (2d Cir 1995), vacated on other [*3]grounds 518 US 1031 (1996). In Malcolm v National Gypsum, 995 F2d 346, 161 USLW 2735, a case cited by the defense, the magnitude of 48 cases that were tried together resulted in reversal. Here, only four cases, one twelfth the size of Malcolm, are being tried together.
Workable guidelines to adjudicate these types of cases with no factor being more important than any others was set forth in Malcolm at 995 F2d 350-351. They were (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease, whether plaintiffs are living or deceased; (5) status of discovery; (6) whether all plaintiffs were represented by the same counsel and; (7) type of cancer.
The Court has already shown that the disease and type of cancer are the same, and all plaintiffs were represented by the same attorneys. Whether plaintiffs are living or dead is not a factor here, as it may have been in Malcolm, since here, unlike Malcolm, all the plaintiffs suffer from the same fate from this fatal disease and discovery is substantially concluded for most and should have been concluded by the others.
Much time can be saved by all sides and the Court by trying these cases together. For instance, the experts' testimony needed to describe the state-of-the-art during plaintiffs'
exposures can be greatly diminished by having that testimony accomplished in one trial than by having it repeated over and over in multiple trials. The same is true for pathology and etiology testimony as well as savings in the use of economists and other experts.
The crushing burden that would be placed on the Court by trying these cases one at a time should be avoided where possible. The Court notes that the goal of having limited clusters of the thousands of cases pending in this court tried jointly is now being routinely opposed by defendants' counsel. While trying multiple cases at the same time is a formidable challenge, it has been met by this Court and others. Note taking in trial notebooks in which plaintiffs in each case are separated out from each other, together with curative and clarifying instructions by the Court should remove defendant's objections that joint trials are
too confusing for the jury. It may not be easy, but it certainly can be done.
This constitutes the Order and Decision of the Court.
Dated: September 15, 2005Enter:
Louis B. York, J.S.C.
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