Baiocco v A.C. & S., Inc.
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Baiocco v A.C. & S., Inc. 2013 NY Slip Op 30578(U) March 20, 2013 Sup Ct, New York County Docket Number: 114562/02 Judge: Barbara Jaffe 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 312612013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YQRK COUNTY Justice - MOTION DATE - v MOTION SEQ. NO. I L MOTION CAL. NO. The following papers, numbered 1 to were read on this motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: 0 Yes 0 No Up0.n the foregoing papers, it i ordered that this motion s FILE NEW YORK COUNIY CLERICS O W E Dated: 2 i: r' 7;ij J. S. C. 6 Check one: 0 FINAL DISPOSITION Check if appropriate: fl DO NOT POST a SUBMIT ORDER/ JUDG. a REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] J RE: NEW YORK CITY ASBESTOS LITIGATION N This Document Relates To: Index No. 114562102 SHARON BAIOCCO, Individually and as Executrix for the Estate of ROBERT A. BAIOCCO, SR., et al., Subm,: Plaintiffs, 3114113 DECISION AND OFLDER - against - A.C. & S., PIC., al., et Defendants, 1 For plaintiffs: Kyle A. Shamberg, Esq. Weitz & Luxenberg, P.C. 700 Broadway New York, NY 10003 2 12-558-5500 I 1 MAR 2 6 2013 For defendant Mack Trucks Inc.: Lance Perez, Esq. Maimone & Assocs. PLLC 170 Old Country Rd., Ste. 609 Mineola, NY 1 1501 5 16-390-9595 For joint defendants: Stephen Novakidis, Esq. Sedgwick, LLP Three Gateway Ctr., 12th F1. Newark, NJ 07 102 973-242-0002 For defendant Puget Sound: Jessica Mullery, Esq. Wilson, Elser et al. 150 E. 42"d St. New York, NY 10017-5693 212-490-3000 By order to show cause dated February 17,2013, plaintiffs move pursuant to CPLR 602 for an order consolidating their cases for trial. Defendants jointly oppose, with supplemental opposition submitted by defendants Mack Trucks, Inc. and Puget Sound Commerce Center, Inc. I. APPLICABLE LAW Pursuant to CPLR 602(a), a motion for a joint trial rests in the discretion of the trial court. [* 3] (See Rudgers v Wurrell, 214 AD2d 553 [2d Dept 19951). Generally, in order to join actions for trial, there must be a plain identity between the issues involved in the [ ]two controversies. (Viggu S.S. Corp. v Marship Cwp. of Monrovia, 26 NY2d 157 [1970]). A motion for a joint trial should be granted unless the opposing party demonstrates prejudice to a substantial right. (See Fransen v Maniscalm, 256 AD2d 305 [2nd Dept 19981; see In re New York City Asbestus Litigation [Bernard], 99 AD3d 410 [lstDept 20121 [court providently exercised discretion in consolidating actions for joint trial as they involved common questions of law and fact and defendant did not establish prejudice]) In determining whether to consolidate individual plaintiffs cases for a joint trial where the plaintiffs allege exposure to asbestos, courts consider the factors set forth in Malcolm v NtZ. Gypsum Co.,995 F2d 346 (2d Cir 1993): whether the plaintiffs worked at a common worksite, not necessarily the same work location but a similar kind of worksite; whether the plaintiffs had similar occupations, as a worker s exposure to asbestos must depend mainly on his occupation, such as those who worked directly with materials containing asbestos as opposed to those who were exposed to asbestos as bystanders; whether the plaintiffs were exposed to asbestos over a similar period of time; whether the plaintiffs suffer or suffered from a similar type of disease, as the jury will hear evidence about the etiology and pathology of each disease, and there is an opportunity for prejudice as asbestosis sufferers may have close to normal life spans while others may have terminal cancers; whether the plaintiffs are alive; dead plaintiffs may present the jury with a powerful demonstration of the fate that awaits those claimants who are still living ; the status of discovery in each case; 2 [* 4] (7) whether the plaintiffs are represented by the same counsel; and (8) whether the plaintiffs suffer from the same type of cancer, as each cancer type requires distinct testimony regarding etiology, pathology, and conseq~ences.~ (Malcolm, 995 F2d at 350-353). Another factor to be considered is the number of defendants named in each case. 11. PLAINTIFFS INFORMATION Plaintiffs seek to consolidate their eight cases into two groups, with Group One consisting of plaintiffs Balducci, Bymes, Cayen, Dell Arciprete, Kornacki, and Latzer, and Group Two consisting of plaintiffs Baiocco and Blank. A. Roper Bulducci Balducci died on March 2,2004 from lung cancer. He was allegedly exposed to asbestos beginning in the 1950s and ending in the 1970s while serving as a Seaman in the United States Coast G a d and while working as a brake installer and automotive mechanic at an auto garage, ur thereby being exposed to products containing asbestos such as brakes and clutches. The defendants remaining in his action are Borg Warner, Lipe Rollwa, Mack, and Maremont. B. John Bvrnes Byrnes passed away from lung cancer on September 27,2002. He worked as a roofer and waterproofer at various commercial and industriallpowerhouse sites f o the 1960s to the 1980s. rm He was allegedly exposed to asbestos-containing cement, felt, mastics, sealant and insulation used in connection with equipment such as pipes and pumps. The remaining defendants in his action are Certainteed, Foster Wheeler, Goulds Pumps, Karnak, and Westinghouse. 3 [* 5] C. Horace Leo Cayen Cayen passed away from lung cancer on March 2 1,2002. He worked as a carpenter, electrician, machinist, and painter at various residential and commercial sites in and around Syracuse, New York, from the 1940s to the 1990s. He was allegedly exposed to asbestos contained in sheetrock, tile, gaskets, and insulation used in equipment such as boilers, pipes, and pumps. The remaining defendants in his action are American Standard and Goulds Pumps. D. Albert Dell Arciprete Dell Arciprete died of mesothelioma on May 27,2003. He performed home renovations, served as Boatswain s Mate in the United States Navy and thereafter worked in the same capacity and as a fire control mechanic at various shipyards, and worked as a signalman for the Boston & Maine Railroad in Massachusetts, all between the 1950s and 1980s. He was allegedly exposed to asbestos in brakes, tiles, sheetrock, and insulation used in connection with equipment such as pipes and pumps. The remaining defendants in his action are Foster Wheeler and Westinghouse. E. Andrew Kornacki Kornacki died on December 14,2002 from lung cancer. He worked as a Pipe Coverer in the United States Navy and as a winder at General Electric in Schenectady, New York, both from the 1950s to the 1980s. He was allegedly exposed to asbestos contained in blankets, cloth, and insulation used in connection with equipment such as generators and pumps. The remaining defendants in his action are Foster Wheeler and Goulds Pumps. F. Nicholas Latzer Latzer passed away on November 22,2002 from lung cancer. He worked as a bricklayer at various factories and churches, schools, hospitals, and residences from the 1950s to the 1980s. 4 [* 6] He was allegedly exposed to asbestos contained within blocks, cement, firebrick, and insulation used in connection with equipment such as boilers, pipes, and valves. The remaining defendants in his action are Foster Wheeler and Westinghouse. G. Robert Baiocco Baiocco died on September 13,2001 from lung cancer. He worked as a carpenter and construction worker at various residential, commercial, and industrial sites in Buffalo, New York from the 1960s to the 1980s. He was allegedly exposed to asbestos contained in joint compound, sheetrock, and tile. The remaining defendant in his action is Georgia Pacific. H. Ralph Blank Blank died from lung cancer on August 22,2007. He worked as a carpenter at shipyards in Brooklyn, New York and at various residential and commercial sites in New York City from the 1940s to the 1970s. He was allegedly exposed to asbestos in joint compound, sheetrock, and tape* The remaining defendant in his action is Georgia Pacific. 111. ANALYSIS Based on an analysis of the Malcolm factors and relevant caselaw, the Bymes, Cayen, and Latzer cases should he consolidated for trial in one group, the Del2 'Arciprete and Kornacki cases should be consolidated in another group, the Baiocco and Blank cases consolidated in a third group, and the Balducci case should be tried separately. My reasoning follows: A. Bvmes. Caven. Latzer All three plaintiffs performed construction work andlor worked at residential, commercial, and industrial sites, and were thereby exposed to asbestos both directly and as bystanders. All of theiii were exposed to asbestos contained within cement, insulation, boilers, 5 [* 7] and pumps. (See In the Mutter o New York Ct Asbestos Litigation [Dummitt],36 Misc 3d f iy 1234[A], 2012 NY Slip Op 51597[U][Sup Ct, New York County 20121 [finding sufficient similarity of occupati oils as both plaintiffs alleged exposure from work, including equipment repair and rnainteiiaixe and construction work, and nature of exposure also similar]). While plaintiffs worked at different sites, a well-organized trial presentation, including materials for the jurors to use in organizing their deliberations, will reduce any confusion. These three plaintiffs were exposed to asbestos during an overlapping period of at least two decades. Thus, any state of the art evidence will overlap. (See eg In re New York City Asbestos Litigation [Capozio], 22 Misc 3d 1109[A], 2009 NY Slip Op 50072[U] [Sup Ct, New York County 20091 [similarities in manner in which almost all plaintiffs performed tasks in construction trades which exposed them to asbestos during overlapping periods from 1940s to 1990s; state of art and other expert testimony also would be substantially common]). All of thesc plaintiffs are deceased and they suffered from lung cancer, and thus the same medical evidence will be presented, They are also represented by the same attorney, and discovery is complcte. Finally, of the six defendants remaining in these cases, Foster Wheeler, Goulds Pumps, and Westinghouse are defendants in two of the three cases, while the other three defendants are in only one of the cases (Certainteed, Karnak,and American Standard). Thus, thew are defendants in common, For these rcasons, there are common issues that predominate over individual issues in these three cases, and defendants have not established that any undue prejudice will result, or that their fourteenth aniendment right to due process will be violated. 6 [* 8] B. Dell 'Arcivete, Kornacki These plaintiffs worked in the armed services, and thus, may have been exposed to materials not coininon to the other plaintiffs, such as brakes, clutches, blankets, cloth, and generators, and federal law may uniquely apply to their actions, (Dumrnitt, 22 Misc 3d at 4 [as one plaintiff worked for Navy, federal law could be implicated and cause jury confusion if case consolidated with those not involving federal law]; In the Matter o New York City Asbestos f Litigation [Altholz], 11 Misc 3d 1063[A], 2006 NY Slip Op 50375[U] [Sup Ct, New York County 20061 [severing for trial case where that plaintiff was only one exposed while working on ship at sea, which could involve federal maritime law and confuse jury]). They also were exposed from the 1950s to the 1980s. While Kornacki died of lung cancer and Dell'Arciprete died of mesothelioma, the level of toxicity of their diseases is the same, and much of the same medical evidence will be presented. Any repetitive or redundant medical testimony may be limited to reduce the length of the trial. (See Altholz, 11 Misc 3d at 1063[A] [while most plaintiffs had mesothelioma and one had lung cancer, evidence as to both cancers would not generally cause undue delay or jury confusion as diseases shared comparable etiology and pathology]). Moreover, of the three defendants in these actions, one is a defendant in both actions, and again, defendants have not demonstrated undue prejudice or the violation of their right to due process. C . Balducci While Balducci was allegedly exposed while he worked in the Coast Guard, plaintiffs assert that they have no claims related to that exposure against the remaining defendants in his 7 [* 9] case. Thus, the issue of the applicability of federal law is not a factor here. Moreover, Balducci is the only plaintiff who worked as an auto mechanic and in auto garages, he was exposed only to asbestos in brakes and clutches, and the four remaining defendants in his case are not defendants in any of the other cases, Thus, plaintiffs have not shown that his case has issues in common with the other plaintiffs such that consolidation is warranted. D. Baiocco. Blank Absent any opposition to the consolidation of these two cases, I find that it is warranted, especially as there is only one, and the same, defendant remaining in each case, each plaintiff died of lung cancer and worked in construction at similar worksites and was exposed to the same materials during overlapping periods of time between the 1940s and 1990s. IV. CONCLUSION Accordingly, it is hereby ORDERED, that plaintiffs motion to consolidate is granted to the extent of consolidating the following cases for a joint trial: (1) Group One - (a) John Bymes, Index No. 119504/02, (b) Horace Leo Cayen, Index No. 123161/02, and (c) Nicholas Latzer, Index No. 125211/02; (2) - Group Two (a) Albert Dell Arciprete, Index No, 121607/02, and (b) Andrew Komacki, Index No. 121910/02; (3) Group Three - (a) Robert Baiocco, Index No. 114562/02, and (b) Ralph Blank, Index No. 125260/02; it is further OWERED, that the Roger Balducci action, Index No. 119783/02, shall be tried separately; and it is further ORDERED, that the parties in all of these actions shall appear for a final settlement 8 [* 10] conferencdpre-trial conference at 2:30 pm on April 17,2012 in room 279, 80 Centre Street, New York, New York. The defendants are directed to bring their insurance carriers, if any, to the conference and to appear with settlement authority. ENTER: DATED: Barbara March 20,20 13 New York, New York I Jrc
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