Backer v ABB, Inc.

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Backer v ABB, Inc. 2021 NY Slip Op 32739(U) December 17, 2021 Supreme Court, New York County Docket Number: Index No. 190105/2020 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 190105/2020 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/21/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY bRESENT: I HON. ADAM SILVERA PART Justice ,,· X i LEONARD BACKER, I INDEX NO. 13 190105/2020 MOTION DATE N/A MOTION SEQ. NO. 001 Plaintiff, - V - ABB, INC.,AIR & LIQUID SYSTEMS CORPORATION, ALCOA INC.,ALGOMA HARDWOODS, INC.,ALLENBRADLEY COMPANY, INC.,ARMSTRONG INTERNATIONAL, INC.,ATWOOD & MORRILL CO., INC.,AURORA PUMP COMPANY, BURNHAM C.ORPORATION, BW/IP INTERNATIONAL CO., CARRIER CORPORATION, CBS CORPORATION, CERTAIN-TEED CORPORATION, CLEAVER-BROOKS COMPANY, COMPUDYNE CORPORATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,CONSOLIDATED EDISON, INC.,COOPER BUSSMANN, COOPER CAMERON CORPORATION, COOPER INDUSTRIES, INC.,COURTER & COMPANY, INC.,CRANE CO., CROWN BOILER CO., EATON CORPORATION, ECR INTERNATIONAL, INC.,ELECTROLUX HOME PRODUCTS, INC.,FLOWSERVE US, INC.,FMC CORPORATION, FORT KENT HOLDINGS, INC.,G & G ELECTRIC CO., INC.,GG OF FLORIDA INC.,GENERAL CABLE CORPORATION, GENERAL ELECTRIC COMPANY, GOULD ELECTRONICS, INC.,GOULDS PUMPS, INC.,GRINNELL CORPORATION, HONEYWELL INTERNATIONAL, INC.,HOWDEN BUFFALO, INC.,HUBBELL INCORPORATED (DELAWARE), I.T.T. INDUSTRIES, INC.,INGERSOLL RAND, INC.,INTERNATIONAL PAPER COMPANY, JENKINS BROS., KOHLER CO., LENNOX INDUSTRIES, INC.,LIGHTOLIER INCORPORATED, LOUIS SHIFFMAN, INC.,MARIO & DIBONO PLASTERING CO. INC.,METROPOLITAN LIFE INSURANCE COMPANY, MILWAUKEE VALVE COMPANY, INC.,NASH ENGINEERING COMPANY (THE}, NEW YORKER BOILER :coMPANY, INC.,O-Z GEDNEY COMPANY ILLC,PEERLESS INDUSTRIES, INC.,PROGRESS !LIGHTING, INC.,RILEY POWER, INC.,SCHNEIDER !ELECTRIC USA, INC.,SIEMENS INDUSTRY, INC.,SPENCE ENGINEERING COMPANY, INC.,SPIRAX SARCO, INC.,TACO, INC.,TISHMAN CONSTRUCTION [CORPORATION, TISHMAN INTERIORS CORPORATION, TISHMAN LIQUIDATING CORPORATION, TISHMAN REALTY & CONST. RUCTION CO., INC.,TISHMAN SPEYER PROPERTIES, INC.,UNION CARBIDE CORPORATION, iWARD LEONARD ELECTRIC CO., WARREN PUMPS I I DECISION + ORDER ON MOTION ! 1 l 1 ; Page 1 of 6 190105/2020 BACKER, LEONARD vs. ABB, INC., 001 I Motion No. I ii 1 of 6 ·I [* 2] I. INDEX NO. 190105/2020 I NYSCEF DOC. NO. 325 Ii RECEIVED NYSCEF: 12/21/2021 I: ; LLC,WEIL MCLAIN, WEYERHAEUSER COMPANY, WILLIAM POWELL COMPANY (THE), YORK INTERNATIONAL CORPORATION, GENERAL RAILWAY I SIGNAL COMPANY, GEORGE A. FULLER COMPANY, I GIAMBOI AND SONS, INC.,GIAMBOI BROS., 1 INC.,GIAMBOI PLASTERING CORP., LEVITON MANUFACTURING CO., INC.,MORSE DIESEL, INC.;, MORSE DIESEL INTERNATIONAL, INC.,NORTHRUP GRUMMAN CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO GEORGE A. FULLER COMPANY, PIRELLI CABLE CORPORATION, TREADWELL CORPORATION, TURNER CONSTRUCTION COMPANY, UNION SWITCH & SIGNAL INC.,CAMERON INTERNATIONAL CORPORATION INDIVIDUALLY AND AS jSUCCESSOR TO PENNSYLVANIA PUMP & !COMPRESSOR COMPANY AND COOPER BESSEMER;, iALRAY CONSTRUCTION CORP., INDIVIDUALLY AND AS -•suCCESSOR TO RE. HEBERT AND COMPANY, 1INC.,R.E. HEBERT AND COMPANY, INC., I I I I l 1 Ii · Defendant. 1---------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 245, 246, 247, 248, 249,250,251,252,253,254,255,256,257,258,259,261,262,267,268,269,270,271,272,273,274, 275,276,277,278,279,280,281,282,283,284,285,286,287,288,289,290,291,292,293,294,295, 296,297,298,299,300,301,302,303,304,305,306,307,308,309,310,311,312,313,314,322 Jere read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL 1 ;. Upon the foregoing documents, it is ordered that plaintiff's order to show cause for joint lJials is granted for the reasons set forth below. Here, plaintiff moves for 3 joint trials as follows: (I) the instant action with Unger v AW j ; j; qhesterton, Co., et. al., 190098/2020; (2) Katechis v Allied Building Products, Corp., et. al., I I • i 190330/19 with McGibbon v AO Smith Water Products, et. al., 190045/2020 and McLaughlin v ~ir & Liquid Systems Corp., et. al., 190076/2020; and (3) Ferreri v Alcoa, Inc., et. al., 190275/19 i: : With Matier v Air & Liquid Systems Corp., et. al., 190228/19. Defendants oppose. Thereafter, ! I I I hiaintiff withdrew the third prong of the instant order to show cause. Below, the Court addresses iL decides the remainder of the m~tion with regards to a joint trial of the numbers (I) and (2) 1 • .. I'. listed above. i I: Page 2 of 6 190105/2020 BACKER, LEONARD vs. ABB, INC., , Motion No. 001 1 ': I' i' I·. ( I: 2 of 6 [* 3] INDEX NO. 190105/2020 t; NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/21/2021 The Case Management Order dated June 20, 2017 (hereinafter referred to as the "CMO") ~tates that "[t]wo cases may be joined for trial where plaintiff demonstrates that joinder is I i1arranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York State cases H1terpreting Malcolm. Malcolm and its progeny list factors to measure whether cases should be I, j?ined; it is not necessary under Malcolm that all such factors be present to warrant joinder." qMO, §XXV. B. The factors to be considered under Malcolm are "(I) common worksites; (2) • I I• similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were I, i(ving or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were i: ;;presented by the same counsel; and (8) type of cancer alleged". Malcolm, 955 F2d at 350-351. jrjhe United States Court of Appeals, 2nd Circuit, further noted that "[cJonsolidation of tort actions i;aring common questions of law and fact is commonplace. This is true of asbestos-related '' p~rsonal injury cases as well." Malcolm, id. at 350 (internal quotations and citations omitted). As !J consolidation of three cases, the CMO states that ''[u]pon good cause shown, a Trial Judge in I I NY CAL may join a maximum of three cases for trial where it determines that I) joinder is I. I. under three or more of the factors described in Malcolm and New York State cases Warranted I \nterpreting Malcolm, and 2) where the three plaintiffs share the same disease. For purposes of ! I,' ihis section 'same disease' shall mean that all the plaintiffs in the three cases proposed to be '' ' Jqined for trial share one of the following four categories of disease: I) pleural mesothelioma, or '. i; 2) non-pleural mesothelioma, or 3) lung cancer, or 4) other cancers." CMO, §XXV. B. I. !• Plaintiff argues that consolidation of the cases for joint trial as specified above is With respect to the instant action and the Unger action, plaintiff contends that both !ppropriate. I. ~laintiffs, Leonard Backer and Edward Unger, are currently living with mesothelioma and were '. exposed to asbestos during the course of their employment as an electrician and an electrician's I; 1 19010512020 BACKER, LEONARD vs. ABB, INC., Page 3 of 6 I Motion No. 001 II, 3 of 6 [* 4] INDEX NO. 190105/2020 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/21/2021 1· ' I: . . . ., k. t· I t jfa e respec 1ve y, wor mg on s1m1 ar equipment and machinery. As to plaintiffs Anastasios ~atechis, Gerard McGibbon, and John McLaughlin, plaintiff.argues that all three plaintiffs ~~veloped mesothelioma, from which they all passed away, as a result of exposure to asbestos 6: . . · such as asbestos containing . ·1 ar materials . emp Ioyment work"mg on s1m1 , prmg th e course o f th eir ' ji joint compound and caulk. Moreover, the discovery in all five of these cases have been ~mpleted, and all five plaintiffs are represented by the same counsel. I! In opposition, defendants argue that plaintiffs misleading and over generalization of the I, facts of the cases are insufficient to meet their burden to establish that the commonalities among I: die plaintiffs overshadow the unique circumstances of each case. Defendants further argue that a I: jciint trial violates defendants' due process and equal rights protections. Defendants contend that, bhe to the number of different worksites that Mr. Backer and Mr. Unger worked at, with no 4mmonality, each plaintiffs' unique worksites and exposure would prevent a joint trial. II Defendants also argue that there are certain defendants in the two cases that do not overlap, as Ii Well as differing causes of action. According to defendants, a joint trial in asbestos matters fails !q promote efficiency but, rather, would lead to juror confusiOn and be prejudicial to defendants. Here, reviewing all the Malcolm factors, the Court finds, and it is undisputed, that both 1 , I' pJaintiffs, Mr. Backer and Mr. Unger, had similar occupations. Both plaintiffs were exposed to Ubestos through their employment and their handling of similar materials and equipment. . 1• idditionally, both plaintiffs developed mesothelioma from which they both currently live with, l~e discovery in both of these actions are complete, and both ~laintiffs have the same counsel. hounsel for the opposing defendants in the instant action represent defendants Tishman 'I II Liquidating Corp., Aurora Pump Co., George A. Fuller Co., and William Powell Co., and such bc~unsel represents Aurora Pump Co., Armstrong International, Grundfos, and Catepillar Inc. in Ii I'. 'I Page 4 of 6 190105/2020 BACKER, LEONARD vs. ABB, INC., Motion No. 001 ' I: 4 of 6 [* 5] I:'. INDEX NO. 190105/2020 NYSCEF DOC. ' NO. 325 I RECEIVED NYSCEF: 12/21/2021 II , (fe Unger action. Thus, six ofth_e eight Malcolm factors have been satisfied. There are common .i~sues of law and fact in both actions. The CMO explicitly states that the Court may order joinder tf ,I cases based upon the Malcolm factors and that not all such factors must be present. Here, the tfalcolm factors support joinder of the two actions. Although the two plaintiffs did not share ~mmon worksites, this does not preclude joinder of the cases for tria I. Adequate safeguards can be put in place during the trial to avoid juror confusion. Thus, plaintiffs motion seeking a joint . I Il : trfal is granted as to the instant action with Unger v AW Chesterton, Co., et. al., 190098/2020. I. · Turning to the portion of plaintiffs motion seeking ajoint trial of Katechis v Allied 1 I, Building Products, Corp., et. al., 190330/19 with McGibbon v AO Smith Water Products, et. al., I I I. I' 190045/2020 and McLaughlin v Air & Liquid Systems Corp., et. al., 190076/2020, defendants II ~ise the same arguments as in the Backer and Unger cases, arguing that the three plaintiffs here • II ~id not share a common worksite, there are certain defendants in the two cases that do not If • bterlap, and there are differing causes of action such that defendants would be prejudiced by a I: jtiint trial. However, a review of the documents reveals that the three plaintiffs, Anastasios I: Katechis, Gerard McGibbon, and John McLaughlin, were exposed to the same asbestoshntaining materials through their respective employment, from which all three plaintiffs Il abveloped pleural mesothelioma and subsequently passed away. Additionally, the discovery in I' i~e three actions are complete, and all such plaintiffs have the same counsel. Thus, five of the L~ht Malcolm factors have been satisfied. There are common issues of law and fact i_n these lJtions. As Hon. Manuel Mendez previously held, "[j]udicial economy would be served by ... tnsolidating the actions of deceased plaintiffs with mesothel~oma and whose exposure was JJlated to their work on similar products .... In these case consolidations: (I) the central issue is l die same; (2) it is the same Plaintiffs' counsel in the actions; (3) the Plaintiffs suffered from the I' I Page 5 of 6 i 190105/2020 BACKER, LEONARD vs. ABB, INC., I Motion No. 001 5 of 6 [* 6] ,. INDEX NO. 190105/2020 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 12/21/2021 I j iI ~kine disease; (4) the Plaintiffs in the group are all deceased; and (5) the Plaintiffs were ~xposed ... in a similar manner." Haley v ABB, Inc., 190150/19, mot. 008, dated December 11, I, tPl9. Moreover, the CMO specifically permits the joint trial of three actions where,_as here, l I t~ree or more of the Malcolm factors have been met and the three plaintiffs share the same ~-~sease. As stated above, although the plaintiffs did not share common worksites, this does not b~eclude joinder of the cases for trial. Adequate safeguards can be put in place during the trial to juror confusion. Thus, plaintiffs motion seeking a joint trial is granted as to Katechis v 1~oid i ~llied Building Products, Corp., et. al., 190330/19, McGibboh v AO Smith Water Products, et. li., 190045/2020, and McLaughlin v Air & Liquid Systems Corp., et. al., I90076/2020. Ii Accordingly, it is ORDERED that plaintiffs motion seeking a joint trial is granted; and it is further ORDERED that a joint trial is granted as to the instant action and Unger v AW I i I I Chesterton, Co., et. al., 190098/2020; and it is further I II . ORDERED that a joint trial is granted as to Katechis v Allied Building Products, Corp., et. ai., I 190330/19, McGibbon v .AO Smith Water Products, et. al., 190045/2020, and McLaughlin v I; ' A'.ir & Liquid Systems Corp., et. al., 190076/2020; and it is further I; ORDERED that, within thirty days of entry, plaintiffs:shall serve a copy of this order upon all parties, together with notice of entry. I· This constitutes the Decision/Order of the Court . .Cle /L---·· i' I. ,i . ' I. 12/17/2021 DATE '. CHECK ONE: I , ADAM SILVERA, J.S.C. § CASE DISPOSED GRANTED i f<PPLICA TION: 9HECK IF APPROPRIATE: • SETTLE ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT • • OTHER REFERENCE Page 6 of 6 ~90105/2020 BACKER, LEONARD vs. ABB, INC., Motion No. 001 I! I' ' G~NTED IN PART SUBMIT ORDER II I § NON-FINAL DISPOSITION DENIED 6 of 6

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