Bischofsberger v Ploeckelmann

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Bischofsberger v Ploeckelmann 2012 NY Slip Op 32414(U) September 19, 2012 Supreme Court, New York County Docket Number: 107352/2005 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 912012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 1 0 Index Number : 107352/2005 BISCHOFSBERGER, JOANNE VB A.O. SMITH WATER PRODUCTS Sequrnce Number : 001 CONSOLlDATlONlJOlNTTRIAL E cn 3 9 e P FILED NEWYORK COUNTY CLERKS OFFICE 2. CHECK AS A P P R O M E : 3. CHECK PAPPROPRIAK: ..l.l...ll.........l...l...~: 0GRANTED 1 8 0[HNIED ................................................ 0$WILE ORDER I3 DO NOT POST . . .. .. QRANfEDIN P M T oOTH6R SUBMfl ORDER 0FtDWClARYAPPOINTMEW REFERENCE [* 2] c SUPREME COURT OF THE STATE OF N W E YORK COUNTY OF N W YORK:IAS 10 E Joanne Bischofsberger, Carolanne Chamberlain and Suzanne V. Paddock, as co-executrixes of Estate of Diana Mary Verde and Anthony Verde, Plaintiffs, Marilyn Ploeckelrnann, individually and as Administratrix of the Estate of Sydney Ploeckelmann, Plaintiffs, -against- DECISIONIORDER Index # 107352/2005 Index # 114369/2004 Motion Seq. No.:001 A 0 Smith Water Products, et. al., Pursuant to CPLR 22191a) the following papers were considered by the court on this motion: PAPERS Notice of Motion, SAD affirm, exhibits_...,,._....... ............................... NUMBERED ................_...._....... 1 Upon the foregoing papers the decision and order of the court is as follows: Plaintiffs in each of the two above referenced actions move to consolidate them for trial. The defendants remaining in both actions have submitted a joint memorandum of law in opposition. Both the action on behalf of Diana Verde ("Verde action") and the action on behalf of Sydney Ploeckelmann ("Ploeckelmann action") involve claims that as a resutt of exposure to asbestos, each of the named decedents contracted Mesothelioma. The two cases form a "cluster" of cases that were referred to this court Page 1 o 6 f [* 3] by order of Hon. Sherry Klein Heitler dated June 11, 2012, CPLR 5602 permits the court, within its discretion, to join cases for trlal when there are common questions of law and fact. Not all of the facts or issues need to be identical, but there must be some identity of issues, such that the salutary goal of judicial economy is wrved. Cumrnin v. CummIn, 56 AD3d 400 (1' dept. 2008); Bradford v, J o U Coleman, 110 AD2d 965 (3d dept. 1985). Once the requirement ofcommonality has been satisfied, the opponent needs to demonstrate that a joint trial will unduly prejudice a substantial right. Geneva Xem~s.nC, v. New World C Q ~ unitles, 24 AD3d 332 (l' I W dept. 2005). In the case of asbestos litigation, joint trials of more than one plaintlff at a time have been routinely permitted. see a g . : Jnre New York Asbest08 uiaatiou, 23 Misad 1109(A) (NY Co. Sup Ct. 2009; Shulman, J); .. New Yo& Citv Asbestos Lltr.wtioe K. A,O, Smith Water Productg, 9 Misc3d 1109(A) (NY Co. Sup. Ct. 2005, York, J.); Ballard v. Anchor Packine ComRany, (index # 190102108; NY Co. Sup. Ct., order dated Sept. 9, 2009, Feinman, J.); Ames v, A.Q, Smlth Water Products, et. aL, (index #107574, NY Co. Sup Ct. Order dated March 16, 2009, Friedman, J.); Bauer v . A.Q. Smlth Water Products, (index #115756/07, NY Co. Sup. Ct., order dated August 21, 2008; Lobis, J.); er of New York Asbestos Lltlaatlon, 173 Misc2d 721 (NY Co. Sup. Ct., 1997, Lehner, J.). This court has itself, on prior occasions, permitted the grouping of cases within a particular cluster for joint trial. (In re: NYC A sbestos LitlqatiQn, 2011 WL 1826854 [Order dated January 27, 20111; In re: NYC A & ~ ~ t o s i t i n m , index ## 114483102 and others, I [Order dated May 2, 201 I]). The joint trial format reduces the costs of litigation, make more economical use of Page 2 of 6 [* 4] ? the trial court's time, speeds the disposition of cases and encourages settlements, l&m A Shiavwd Cases), 188 AD2d 2 14 (1 st Dep't 1993) a f f d82 NY2d 82 1 (1993). In deciding what cases should be joined for trial, the courts have looked to the factors enunciated in the seminal case o Malcotm v. National GVW Go, 995 F2d 346 f urn (2"dCir. 1993),where the Second Circuit Court of Appeals delineated specific factors that are relevant in determining whether to jointly try cases based upon asbestos exposure. common work site; [2] similar occupation; [3] similar time of The factors include: [l] whether plaintiffs are living or deceased; [6] status of exposure; [4] type of disease; [5) discovery in each case; and [Awhether all plaintiffs are represented by the same counsel, None of these factors is dispositive on its own, but each s e w s as a guideline in assisting the court in decldlng whether to combine all, some or none of the cams for trial. M d r n v. National Gvnsum Cn., 995 F2d at 350. Moreover, these guldellne are not exclusive of other considerations that might be relevant to any particular motion for a jolnt trlal. Applying these legal standards to the facts at bar, the court holds a3 follows: common work sitel slrnllar occupetlon This court frequently conslders these two factors simultaneously, because they really concern the type of asbestos exposure each plaintiff is claiming and whether there will be shared testimony about the airborne fibers to which plaintiffs were exposed. RE NEW YORK CITY ASBFSTQS LlTlGAT I ON, Ip Extremis ADrll2011/ FIFO A u a w =(index # 190323/10, Co. Sup Ct., order dated September 7,2011, Gische, J.); NY In re &&ggjt;~s L,itiaatim, 1998 WL 230950 (SDNY 1998). Carroll v. A,W. C Page 3 of 6 h w [* 5] (index # 190295/09; Go.Sup. Ct., order dated August 25, 2010, Frledman, NY J.), ("The court recognizes that the plaintlffs ...did not share the same work site or same occupations . However, there are overlapping exposures, that is, exposures to various of the same asbestos-containing products as well as qxposures that occurred in the same manner, that is , by working directly with asbestos containing materials andlor by means of bystander exposure."); In re; New LY itination (index # 102988/99, NY Co. Sup. Ct., order dated January 9, 2009. Shulman, J) ('...this court finds that there are similarities in the manner in which almost all of the Plaintiffs performed their respective tasks in the construction trades which exposed them to [asbestos containing materialJduring overlapplng periods of tlme..."). Sidney Ploeckeimann was a Refrigeration and Engine Machinist who was exposed to asbestos while serving in the Navy during 1952 and 1954. There are currently 2 remaining defendants in his case. One defendant, Gaulds Pumps Inc., is common to both cases before the court on this motion.. Diana Verde was exposed to asbestos from laundering her husband's work clothes between 1965 and 1990. Her husband was a mechanic at Con Edison during that period of time. There are currently 5 defendants remaining in this case. As previously stated, only one defendant is common to both the Ploeckelmann and Verde cases. similar time of exposure The dates of exposure in Sidney Ploeckelmann's case were 1952 through 1954. The dates of exposure in Diana Verde's case were 1965 through 1990. type of disease Page 4 of 8 [* 6] Both Sidney Ploeckelmann and Diana Verdi contracted mesothelioma. Sidney Ploeckelrnann suffered pleural mesotheilioma, while Diana Verdi suffered with peritoneal mesothelioma. These are the same disease, albeit they present in different parts of the body. Defendants claim that they wlll preaent a defense, that peritoneal cancer in women is not causes by asbestos exposure. whether plaintiffs are living or deceased Both af the parties who sustained injury are now deceased. status of discovery In each case In both cases, discovery has been competed and they are trial ready. whether ail plalntlffs are represented by the same counsel. The plaintiffs In both cases are represented by the same counsel. The court holds that there are not enough similarities in the two cases that would involve shared testimony which would warrant a joint trial in the first instance. There would certainly be some shared testimony. There would be some overlapping testimony on general science related to asbestos, on some state of the art testimony and an the character and cause of mesothelioma. The testimony in the main, however, would be unique to each particular case. Although plaintiffs argue that Sidney Ploeckelmann and Diana Verdi s husband were exposed to similar products, these were products that were largely manufactured and or distributed by different defendants. There is only one common defendant among the seven remalnlng defendants. The Sidney Ploeckelmann case not only involves f stgnificantly different dates of exposure, but because he was in the Navy at the time o the claimed exposure, there are unique facts related to state of the art and defenses Page 5 of 6 [* 7] that are not in any way relevant to the Diana Verdi case. The type of exposure is not the same and the duty, depending on what was known or knowable, may be very different in each case. Plaintiffs argue that the risk of confusion, which is commonly a consideration in determining whether to consolidate cases, is not present because there am only two cases. Confusion, however pertains to the issue o prejudice. Before the court even f reaches that issue, the proponent of consolidation must make a showing that there I a s benefit in terms of judicial economy. At bar the issues that would require, overlapping testimony are spare and general to almost all asbestos exposure cases,such that there i no basis to favor consolidation in the first instance. Thus, the absence of confusion s is not a consideration. Conclusion In accordance herewith t is hereby: ORDERED that the motion for a consolidated trial is denied; and it is further ORDERED that the Diana Verdi case will be tried first; and it i further s ORDERED that the Sidney Ploeckelmann case will tried immediately thereafter; and it i further s ORDERED that any requested relief not expressly granted herein is denied and that this constitutes the decision and order of the court. Dated: New York, NY September 19,2012 SO ORDERED: FILED SE? 202012 NEW YORK COUNTY CLERKS OFFICE Page 6 of 6

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