Matter of New York City Asbestos Litigation v A.O. Smith Water Prods. Co.
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Matter of New York City Asbestos Litigation v A.O. Smith Water Prods. Co. 2013 NY Slip Op 32535(U) October 17, 2013 Sup Ct, New York County Docket Number: 102900-2004 Judge: George J. Silver Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: (o Justice INDEX NO. MOTION DATE - v - I MOTION.SEQ. NO. A a, S'/\'l.i f)it w~ fA..eli:>vl.[lnoN 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 - E x h i b i t s - - - - - - - - - - - - - - Replying Affidavits - - - - ' - - - - - - - - - - - ' - - - - - - - - (/) Cross-Motion: ( /) z 0 <( Yes No w er: CJ wz ~·~ I- 0 (/) ..... :::::> ..... ..., 0 Upon the foregoing papers, it is ordered that this motion O.c.:t>ER'tTo S~uJ C,avss 0 u.. :l,.J Ac...ca~~ vc.£ 0 J: Uc.c.t~ra..1 I- w w 1- ti: LL. cr: cc er: 0 w a: > ..... ..... L.vr'f"H b ¬..c.1t:>;u THE ftAl/\llZ¥C..'t> UR.oF-1{ ~l<LED ~&, 2~tf :::::> LL 1(.J w Q. (/) COUNTY CLERK'S OFFICE NEW YORK I.LI a: (() I.LI (() <( z () 0 j'.:: 0 :E ' A~;VJJ~ [* 2] SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------)( IN RE NEW YORK CITY ASBESTOS LITIGATION ---------------------------------~-----------------------------------)( INDE)( NUMBER WILLIAM N. BARTON 102900-2004 CHARLES W. DIETRICH 115214-2003 ROBERT D. FREEMAN 100867-2004 ANGEL LAMBERTY 100988-2004 FILED PATRICK W. LOWDEN FRANCIS MARINO 101357-2004 116830-2003 OCT 212013 111778-2004 COUNTY CLERK'S OFFICE NEW YORK 104850-2004 THEODORE PENDERGAST ROBERT C. MCDONALD FRANCIS J. SMITH 118280-2003 RONALD B. YETTER, 116648-2003 Plaintiffs, DECISION AND ORDER -against- MOTION SEQUENCE 001 A.O. SMITH WATER PRODS. CO., et al., Defendants. --------------------------------~~------------------------------------)( The following papers, numbered 1 to 6 , were read on this motion for a joint trial: Notice of Motion/ Order to Show Cause -Affirmation - Exhibits : Numbers 1 and 2 Answering Affirmation(s)-Exhibits: Numbers 3, 4, 5, and 6 GEORGE J. SILVER, J.:. The above captioned ten matters are asbestos-related personal injury actions. The plaintiffs in above captioned actions are moving by order to show to consolidate the cases into two groups, one consisting of plaintiffs Dietrich, Lamberty, Marino, McDonald, Pendergat~!and Yetter (the mesothelioma group) and one consisting of plaintiffs Barton, Lowden and Smith!I (the . . lung cancer group) for joint trial. Defendants oppose the motion and raise common and · [* 3] I i individual arguments again~t joint trial. l The Mesothelioma Group I 1. Charles Dieich i! According to plaintijffs' counsel, Charles Dietrich was exposed to asbestos while wo~king a s boiler worker at the Bethlehem Shipyard in Brooklyn, New York during the 1940s. :· Specifically, Dietrich was exposed to asbestos-containing insulation used in connection with; boilers, pipes, pumps and t~bines. Dietrich was diagnosed with mesothelioma on April 25,; 2003 and died on June 25, 2003. · ; 2. Robert D. Freeman i I . Freeman was allegedly exposed to asbestos while working a boiler technician and li engineer at various industri~l sites and powerhouses from the 1970s until the 1990s. Freem~ was allegedly exposed to a~bestos while working with gaskets, packing, blankets and insula~ion used in connection with boilers, pipes, pumps, turbines and valves. Freeman was diagnose~ with mesothelioma on May 27, 2003 and died on June 8, 2005. 3. Angel Lam9erty i l i Lamberty was alleg~dly exposed to asbestos-containing material while working at I Channel Master Corp. in E~lenville New York, Otisville Correctional Faciluty in Otisville, 11Jew York and Eastern Correctiqnal Facility in Napanoch, New York. According to plaintiffs' I counsel, Lamberty was expbsed to asbestos-containing gaskets, packing and insulation used!in connection with boilers, pipes and pumps. Lamberty was diagnosed with mesothelioma on ! March 10, 2003 and died o? August 10, 2004. ! 4. Francis Marino L f· i ! Marino was allege~y exposed to asbestos-containing insulation used in connection With boiler, pipes, pumps and t~bines while working as an electrician., furnace worker and custo4ian at various industrial sites, tjowerhouses and shipyards in Brooklyn, New York from the 194~s until the 1970s. Marino w~s diagnosed.with mesothelioma on June 30, 2003 and died on Mj?fch 5, 2004. l : I 5. I Robert McDonald i : I : Plaintiffs' counsel ~lleges that McDonald was exposed to asbestos-containing material while serving as an electridian in the United States Army during the 1950s. McDonald wasi. allegedly exposed to asbes~os-containing Bakelite, chassis and insulation used in connectiort with pipes. McDonald was diaguosed with mesothelioma on December 13, 2002 and died on July 8, Index No. 102900-2004 Page 2 of 5 [* 4] ]: ; ; i: i ; 2006. ' ! 6. Theodore P9idergast Pendergast was allegedly exposed to asbestos-containing gaskets, floor tiles, brakes #id insulation from the 1950s until the 1970s while working as steamfitter and auto mechanic at[ various industrial and conu:hercial sites and while performing home renovations. Pendergas( was diagnosed with mesotheli01pa on January 2, 2004 and died on January 20, 2005. : 7. Ronald Yetter Yetter was allegedl~ exposed to asbestos-containing gaskets, packing, firebrick and i. insulation used in connecti~n with boilers, pipes, pumps and turbines while working as a l machinist mate at the Brooklyn Navy Yard from the 1950s until the 1970s. Yetter was dia~osed 1 with mesothelioma on Jund 20, 2003 and died on September 9, 2005. i:· The Lung Cancer qoup 1. ' William N. ~arton Barton Wll$ itllegedl~ exposed.ID asl)estos'£cil1\ainiiig g~ets, packing and insulatioJi ~hile<working as an operatingengineer·at various industrial sites and powerhouses in upstai,e · New York from the 1950s the 1990s. He was diagnosed with lung cancer on April 8, ~003 . . i :· and died on July 6, 2005. 1 ¢ ·· fuitil l I 2. Patrick W. Uowden, Jr. l j l . . . .. Lowd~n was a~lege1ly exposed to asbestos-contai~ing g~skets, packing, blanke~s an1 ¢ msulat10n while working as a carpenter and laborer at vanouss1tes, from the 1960s until the i 1990s. He was diagnosed ivith lung cancer on November 9, 2001 and died onFebruary 16, ~002. i' 3. ' ' 1 ~ I~ l Francis J. S:ihith 1 l i ; . l ;, Plaintiffs' counsel dlleges that Smith was exposed to·asbestos-containing gaskets, fl~or tile,·arc shoots, arcproofin$·and insulation in connection with his work as an electrician at j, various colllillercial, industrial and powerhouse sites and while performing home renovatio~~ from the 1950s until the 1980s. Smith was diagnosed withJung cancer on May 23, 2003 ana died on.August 24, 2004. ! Discussion ]t CPLR § 602 [a] peibitsa court to join actions involving common questions oflaw fact;joinder of common m~tters is appropriate ''Where it Will avoid unnecessary duplication! pf trials, save unnecessary co~ts and expense and prevent the injustice which would result from~ Jr i; I i i Index No. I 02900-2004 Page 3 of 5 [* 5] divergent decisions based on the same facts" (Chinatown Apartments, Inc. v New York City Transit Authority, 100 AD~d 824, 826 [1st Dept 1984]). The courts are given "great deferen~e" in the decision to join mattdrs (Matter ofProgressive Ins. Co. [Vasquez-Countrywide Ins. Cq.j, 10 AD3d 518, 519 [Pt Dep~ 2004]). The chief policy consideratiOns behind consolidation joinder are efficiency and tlie conservation of judicial resources (see Sokolow, Dunaud, ! Mercadier & Carreras v Lqcher, 299 AD2d 64, 73-74 [Pt Dept 2002]; Matter of New York ¢ity Asbestos Litigation, 188 AJ:l>2d 214, 225 [1st Dept 1993], affd 82 NY2d 821, 625 NE2d 588,J605 NYS2d 3 [1993]). Yet, "c~nsiderations of convenience and economy must yield to a param(i)unt concern for a fair and impai/tial trial" (Johnson v Celotex Corp., 899 F2d 1281, 1284 [2d Cir-!, 1990]). Joint trials are not appropriate when "individual issues predominate, concerning particular circumstances applicable to each plaintiff' (Bender v Underwood, 93 AD2d 747, 748 [1st Dept 1983]). Thus, although a joint trial has the potential to "reduce the cost of litigatiotj, make more economical useiofthe trial Court's time, and speed the disposition of cases as w~ll as []encourage settlements" (¥alcolm v National Gypsum Co., 995 F2d 346, 354 [2d Cir 1993~), it is "possible to go too far in ~he interests of expediency and to sacrifice basic fairness in the i: process" of joinder, andjoi~t trial should be denied where (1) individual issues predominate lover common issues in the cases! sought to be joined, or (2) the party opposing the joint trial i demonstrates substantial pr~judice" (Ballardv Armstrong World Industries, 191 Misc2d 62~, 627-28 [Sup Ct Monroe Ctjr 2002]). ' To decide whether ~joint trial is proper in the context of asbestos-related personal in!jury and wrongful death actions1 courts consider the factors set forth in Malcolm v National Gyp~'?lm Co., 995 F2d 346, 351-352 j(2d Cir 1993). Specifically, courts look at "(1) common worksit~~ (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs [a]re living or deceased; ( 6) stattjs of discovery in each case; (7) whether all plaintiffs were repres~nted by the same counsel; and(~) type of cancer alleged" (id. at 351 [quotations and citations i omitted]). The party moving for joinder bears the initial b.urden of demonstrating the commonality of the issues, ~t which point the burden shifts to the opponent to establish prej*dice and potential jury confusio* (Bender, 93 AD2d at 748). Malcolm does not require that plai111tiffs share identical occupationsJ identical workplaces or identical time of exposure. Rather, Mal~olm only requires that there be ~imilarity among these criteria and any other interpretation would( undermine the purposes of joint trial, i.e., the conservation of judicial resources and litigatioi) expenses and the fostering 9f settlement (Assesnzio v A. 0. Smith Water Prods., 2013 NY SI~ Op 3080l[U] [Sup Ct, New Ydrk County]). i Plaintiffs have established that there is sufficient commonality among the three plainitiffs in the proposed Lung Canc¢r Group so as to warrant a joint trial. Obviously, all three plaintfffs suffered from lung cancer, keaning that the expert medical testimony regarding the etiologyfand pathology of the plaintiffs' ponditions will be similar. All three plaintiffs in the Lung Cancer Group are deceased, and eaph is represented by the same law firm. Moreover, although the ~ee plaintiffs did not engage in ~dentical occupations at identical worksites over identical period~ of time, all three plaintiffs allege exposure from the same or similar. products - namely asbestos'" containing insulation, boile(s, pumps and gaskets; Testimony and evidence regarding most $f these products and the type!of asbestos exposure that could result them will be identical or n~arly so in all three cases. The f~ct that Smith alone alleges exposure to asbestos-containing floo~iiles, o* I 1 l IndexNo. 102900-2004 :. ,, Page 4 of 5 [* 6] arc proofing and arc shoots ~oes not warrant denying plaintiffs' order to show cause. Furthe~, the alleged periods of exposure! for these three plaintiffs range from the 19 5 Os through the 1990s, and therefore, the state of art evf dence will sufficiently overlap. Accordingly, the Lung Cancer Qroup actions will be tried jointly.I Among the propose~ Mesothelioma.Group, there is sufficient commonality among ! ¢ plaintiffs Freeman, Lambetj:y, Marino and Pendergast to warrant ajointtrial of their actions.I However, because Dietrich) McDonald and Yetter allege exposure while working at a shipyJrd (Dietrich and Yetter) or while serving in the Army (McDonald) it is appropriate to segregate! these actions as they potentially involve federal government contractor defenses that would iiiot be applicable to the other cases. J 1 Accordingly, it is hdreby . I l i ORDERED that pla~ntiffs' order to show cause is granted to the extent that Barton, Ipdex Number 102900-2004, Lowden, Index Number 101357-2004 and Smith,Jndex Number 11812802003 shall be tried jointly ard all parties to these actions shall appear for a pre-trial conferen~e on ¢ . . , j, m Part 10, Room 422 of th~, courthouse located at 60 Centre Street, New York 10007 on 1 I November 26, 2013 at 9:30! am; and it is further I ; i i ' . I ¢. ORDERED that Fr~eman, Index Number 100867-2004, Marino, Index Number 1168302003 and Pendergast, lnde~ Number 104850-2004 shall be tried jointly and all parties to the~e actions shall appear for a p~e-trial conference in Part IO, Room 422 of the c?~ouse locate# at 60 Centre Street, New Yor~ 10007 on November 26, 2013 at 9:30 am; and It IS further 1· I ORDERED that Di~trich, Index Number. 115214-2003, McDonald, Index Number ! 111778-2004 and Yetter, Itjdex Number 116648-2003 shall be tried jointly and all parties tolr these actions shall appear f9r a pre-trial conference in Part 10, Room 422 of the courthouse I located at 60 Centre Street, New York 10007 on November 26, 2013 at 9:30 am; and it is fu~her I ' . !FILED OCT 1 7 2013 J Dated: i New York County j OCT 212013 i col!JNTY CLERK'S OFFICE NEW YORK Index No. 102900-2004 Page 5 of 5 HON. GEOkGE J. SIL VER !1
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