Matter of New York City Asbestos Litig.

[*1] Matter of New York City Asbestos Litig. 2006 NY Slip Op 50375(U) [11 Misc 3d 1063(A)] Decided on January 19, 2006 Supreme Court, New York County Shulman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 19, 2006
Supreme Court, New York County

In the Matter of New York City Asbestos Litigation.

Philip Altholz, MARION CZYS (DEC.) CURTIS EBERHARDT, JR. DAVID HUNTER (DEC.) EUGENE LIGHT (DEC.) WILLIAM MCCARTHY SAMMY PAEZ (DEC.) JOHN QUINN NOEL STEININGER, Plaintiffs,

against

American Standard, Inc. et al., Defendants.





102034/05

Martin Shulman, J.

The nine (9) captioned matters, part of a November 2005 in extremis cluster of asbestos cases (collectively, "Plaintiffs") have been referred to this Court for trial. Four (4) out of the nine (9) Plaintiffs are deceased. Pursuant to CPLR §602(a), Plaintiffs' counsel moves by Order to Show Cause ("OSC") to consolidate these nine (9) personal injury/wrongful death actions for joint trial claiming the existence of common questions of law and fact (e.g., eight out of nine Plaintiffs contracted mesothelioma from asbestos exposure [one still surviving plaintiff, Steininger, has stage IV lung cancer], Plaintiffs had similar occupations, times of exposure and types of worksites, all nine Plaintiffs were/are terminally ill, and there are common defendants in some of the cases and/or overlapping bankrupt tortfeasors in all of the cases, etc.). [*2]

Approximately forty-three defendants submitted opposition papers[FN1] contending the following differences which purportedly predominate over the common factors: (1) Plaintiffs did not share a common work site or even a common type of work site; (2) all nine Plaintiffs did not share a common occupation; (3) Plaintiffs' alleged asbestos exposure occurred over a period spanning fifty years (1940's -1990's) but none were exposed during an identically discrete time period; (4) because Steininger was the only plaintiff to contract lung cancer, joining his case with the other eight cases will unduly lengthen the trial as the pathology and etiology of lung cancer and mesothelioma are substantively different; (5) defendants in cases involving decedent Plaintiffs will be prejudiced by evidence of pain and suffering presented from the living Plaintiffs; (6) there is outstanding discovery which will be impeded if the joint trials were to go forward; and (7) there are no asbestos containing products which Plaintiffs claim exposure to that are common to all nine Plaintiffs and there is no commonality in the manner of Plaintiffs' alleged asbestos exposure.

Discussion

CPLR §602(a) permits a court to consolidate two or more actions for joint trials if they involve common questions of law or fact. "Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which would result from divergent decisions based on the same facts. . ." Chinatown Apartments, Inc. v. New York City Transit Authority, 100 AD2d 824, 474 N.Y.S.2d 673 (1st Dept., 1984). Joint trials will also foster judicial economy, quicken the disposition of cases (City of Rochester v. Levin, 57 AD2d 700, 395 N.Y.S.2d 773 [4th Dept., 1977]) and potentially encourage settlements (In re New York City Asbestos Litigation [Brooklyn Naval Shipyard Cases], 188 AD2d 214, 225, 593 N.Y.S.2d 43, 50 [1st Dept., 1993]), aff'd 82 NY2d 821, 605 N.Y.S.2d 3 (1993). On the other hand, "where individual issues predominate, concerning particular circumstances applicable to each plaintiff. . ." (Bender v. Underwood, 93 AD2d 747, 748, 461 N.Y.S.2d 301, 302 [1st Dept., 1983]) and one or more of the defendants, then joint trials would be ill-advised.

In determining the merits of Plaintiffs' OSC, this Court must consider certain suggested factors delineated in Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352 (2nd Cir., 1993) such as: "(1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether Plaintiffs are living or deceased; (6) status of discovery in each case; (7) whether all Plaintiffs are represented by the same counsel; and (8) type of cancer alleged."

A review of the dueling papers reveals that certain commonalities do exist and certain issues defendants collectively claim predominate over the commonalities will not defeat Plaintiffs' application for joint trials generally. First, Plaintiffs are represented by [*3]the same law firm. Second, while four of the Plaintiffs have died from asbestos causing disease, their deaths will not prejudice the jury against the defendants, vis-a-vis, the living Plaintiffs as the latter are all terminally ill and will unfortunately suffer the same fate. Third, since eight out of nine Plaintiffs suffered from mesothelioma, there is overwhelming commonality as to this type of disease so that the inclusion of a case involving a plaintiff suffering from lung cancer for joint trials, generally, will not cause undue delay or confuse the jury as these diseases do share a comparable etiology and pathology. Fourth, this Court is not convinced that extensive discovery still remains to either warrant denying the OSC entirely or delaying the trial date. To the extent certain discovery remains extant as to any of the parties, this Court will be responsive to any reasonable request and will tailor the trial sessions to avoid any prejudice or due process concerns. Fifth, the Malcolm factors do not compel the Plaintiffs to share a common occupation or common time of exposure. Thus, this Court finds there are similarities in the manner in which Plaintiffs performed different tasks which exposed them to asbestos containing material or products during overlapping periods of time from the 1940's to the 1990's. Sixth, against this backdrop, the state of the art testimony and other expert testimony in a general way will be substantially common to all Plaintiffs. Finally, consideration can be had of other commonalities such as the existence of bankrupt, absentee tortfeasors which will arguably overlap in all of these actions and defendants' anticipated game plan to establish these tortfeasors' liability and mitigate their own liability under CPLR Article 16. Tancredi v. A.C.&S., Inc. (In re NY City Asbestos Litigation), 6 AD3d 352, 775 N.Y.S.2d 520 (1st Dept., 2004).

Accordingly, the OSC is granted, in part, to join the Altholz, Eberhardt, Light, Paez, Quinn and Steininger matters for joint trials. This Court recognizes that the alleged periods and nature of asbestos exposure among these six Plaintiffs do not present precise commonalities; still, there exist sufficient similarities to support their joint trials (e.g., Plaintiffs' alleged exposure to asbestos products/materials in residential settings, in the military [army or navy], in the trades, in automobiles and during overlapping periods of time, etc.).

Notwithstanding the foregoing, this Court determines that the Hunter case should not be joined because this decedent-plaintiff appears to be the sole plaintiff to have experienced exposure to asbestos containing products/materials predominantly as a bystander when he served as a draftsman and/or engineer during the 1940's through the 1960's and no other plaintiff apparently shares a common period of exposure in the 1940's. Thus, "[t]he state of the art evidence reaching all the way to the [1990's] could result in prejudice to [Hunter] as the jury could fail to disassociate all of the knowledge that was accumulated from the 40's to the [ 90's]." (bracketed matter added) (DeJesus, et al. v. A.C. & S., et al., Sup. Ct., NY County, January 9, 2006, York, J., n.o.r., Index Nos.: 116431/01, et al.).

The Czys case should also not be joined with the other Plaintiffs for trial. As discerned from the record, this decedent-plaintiff allegedly experienced "secondary exposure from dust brought home from decedent's husband who worked at various shipments [sic]. . ." (Sapon Opp. Aff. at ¶ 3). On the record before the Court at this [*4]juncture, it remains unclear whether a claim of damages for this proven type of exposure remains viable as a matter of law (see Court of Appeals decision in In re New York City Asbestos Litigation [Holdampf v. A.C.&S., Inc.], 5 NY3d 486, 806 N.Y.S.2d 146 (2005). It is further noted that among the approximately eighteen defendants in the Czys case (and for that matter among all forty-three remaining defendants), defendant Trump Management Inc. is the only premises owner. Therefore, this Court is persuaded that evidence of liability on the part of manufacturers, contractors and product distributers could easily "splash" on this defendant and unduly prejudice this defendant's right to have a fair and impartial trial.

Having reviewed McCarthy's work history on a chart (denominated "Chart A, Jobsite-Specific Exposure History") attached to plaintiff s responses to certain amended interrogatories (e.g., Exhibit M to Orenstein Opp. Aff.), it is readily apparent that McCarthy's alleged exposure occurred as a merchant marine, inter alia, performing mechanical/engineering functions on ships at sea. Evidently, "McCarthy's work sites are comprised of commercial ships upon which he sailed as a merchant seaman or boarded as a maritime consultant. No other plaintiff . . . alleges asbestos exposure as an employee aboard a commercial ship [at sea]. . ." (Koczko Opp. Aff. at ¶12). Although this issue has not been fully briefed by the parties, this Court reasonably surmises that the federal maritime law is implicated. This Court shares defense counsel's concern that it could prove to be confusing for the jury to sort out the varying elements of liability and damages governed by New York's negligence and product liability laws and those under federal maritime law (the latter is argued to be controlling in the McCarthy matter). The possibility for such confusion could greatly prejudice the Farrell Lines Incorporated and American President Lines, Ltd., defendant shipowners, and therefore this case should also be severed for a separate trial.

As stated by this Court in prior decisions, trying these six cases at the same time will be difficult, but not insurmountable. The use of suggested jury innovations such as juror note-taking and notebooks, extensive preliminary instructions, attorneys' interim commentary (short summations at different stages during the trial), juror questions, written copies of the special verdict sheets for jury use during summations and a written copy of the court's charge to the deliberating jury should avoid any confusion for the jury in sorting out the respective liabilities and damages attributable to each of the six Plaintiffs.

This constitutes the Decision and Order of this Court. Courtesy copies of same have been furnished to counsel for the parties.

Dated: New York, New York

January 19, 2006

_s/____________________________

HON. MARTIN SHULMAN, J.S.C. [*5] Footnotes

Footnote 1: Although the Court was apprized of certain alleged differences which are unique to a particular plaintiff, nonetheless, most of defendants' opposition papers uniformly contain the same arguments and cite to the same case law for the proposition that joint trials of all nine Plaintiffs would be inappropriate. In this context, a number of defendants submitted letters adopting the facts and legal arguments of their co-defendants in opposition to Plaintiffs' OSC seeking joint trials of all nine Plaintiffs.