Aylward v. Air & Liquid Sys. Corp. (2022)

Our plain-English summary of Aylward v. Air & Liquid Sys. Corp. (New York Supreme Court, March 17, 2022).

Frances Aylward, as executrix of the estate of her husband Carl Kenneth Aylward and individually, sued Air & Liquid Systems Corporation and many other companies in New York County Supreme Court. The plaintiffs moved to try her case jointly with the case of Sonia Serrano, who sued on behalf of the estate of Salomon Serrano. Both men worked repairing and maintaining boilers, handled asbestos-related products, developed pleural mesothelioma and died. They did not share one worksite, but both were exposed at commercial and hospital sites in the New York metropolitan area. Both estates were represented by the same law firm, and Cleaver-Brooks was the only defendant remaining in both cases. Defendants argued that individual facts and legal questions outweighed what the cases had in common. The court applied CPLR 602(a), the case management order and the Malcolm factors. It found that six of the eight factors were met, that the cases shared common issues, and that safeguards could prevent jury confusion. It granted the joint trial.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: March 17, 2022
• Citation: 2022 NY Slip Op 30978(U)
• Stage: Other
• State: New York

Outcome. The court granted the plaintiffs' motion for a joint trial of the Aylward and Serrano asbestos cases against remaining defendant Cleaver-Brooks, over defendants' opposition.

What the court held. Cases may be joined for trial under CPLR 602(a) and the case management order when the Malcolm factors support it; not all factors must be met, and safeguards can prevent jury confusion.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Carl Kenneth Aylward: pleural mesothelioma; died

• Salomon Serrano: pleural mesothelioma; died

The defendants

• Cleaver-Brooks (manufacturer)
• Air & Liquid Systems Corporation (manufacturer)
• A.O. Smith Water Products Co. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Malcolm v. National Gypsum Co. (U.S. Court of Appeals, Second Circuit, 1993). The Second Circuit reversed the $226,038 judgment that Roberta Kranz, executrix of Lee Lewis's estate, won against Keene Corporation, and remanded for a new trial because consolidating 48 asbestos cases for trial was improper and prejudiced Keene.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2022 NY Slip Op 30978(U)

FRANCES AYLWARD, AS EXECUTRIX FOR THE ESTATE OF CARL KENNETH AYLWARD, AND

FRANCES AYLWARD, INDIVIDUALLY, Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION, AMCHEM PRODUCTS, INC., ATWOOD & MORRILL

COMPANY, CATERPILLAR, INC., CBS CORPORATION, F/K/A VIACOM INC., CERTAINTEED

CORPORATION, CHAPMAN VALVE MANUFACTURING CO, CLEAVER BROOKS COMPANY, INC.,

COMPUDYNE CORPORATION, CUMMINS, INC., EATON CORPORATION, AS SUCCESSOR-IN-

INTEREST TO, FMC CORPORATION, GENERAL ELECTRIC COMPANY, GOULD PUMPS LLC, ITT

LLC., KEELER-DORR-OLIVER BOILER COMPANY, NAVISTAR, INC., A/K/A INTERNATIONAL,

OWENS-ILLINOIS, INC., PFIZER, INC. (PFIZER), RILEY POWER INC, THE FAIRBANKS COMPANY,

U.S. RUBBER COMPANY (UNIROYAL), U.S. RUBBER COMPANY (UNIROYAL), WARREN PUMPS,

LLC, WEIL-McLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, UNION CARBIDE

CORPORATION, Defendant.

Index No. 190170/2017, Motion Seq. No. 003.

Motion November 29, 2021.

March 17, 2022.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL.

Upon the foregoing documents, it is ordered that plaintiff's order to show cause for a joint trial is granted for the reasons set forth below.

Here, plaintiffs move for a joint trial as follows: Frances Aylward as Exectrix for the Estate of Carl Kenneth Aylward and Frances Aylward Individually v Air & Liquid Systems Corporation, etal., 190170/2017 with Sonia Serrano, as personal representative for the Estate of Salomon Serrano and Sonia Serrano individually v A.O Smith Water Products Co., etal., 190246/2016. Defendants oppose. The Court addresses and decides the motion with regards to a joint trial below. The Case Management Order dated June 20, 2017 (hereinafter referred to as the "CMO") states that "[t]wo cases may be joined for trial where plaintiff demonstrates that joinder is warranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York State cases interpreting Malcolm. Malcolm and its progeny list factors to measure whether cases should be joined; it is not necessary under Malcolm that all such factors be present to warrant joinder." CMO, §XXV.13. The factors to be considered under Malcolm are "(1) common worksites; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged". Malcolm, 955 F2d at 350-351. The United States Court of Appeals, 2nd Circuit, further noted that "[c]onsolidation of tort actions sharing common questions of law and fact is commonplace. This is true of asbestos-related personal injury cases as well." Malcolm, id. at 350 (internal quotations and citations omitted). Further, CPLR § 602(a) states that "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."

Plaintiffs argue that the facts of the case support consolidation as per the factors set forth by Malcom. Plaintiffs also contend that common Defendants exists within the cases at hand, and trying these actions separately is a waste of Court resources. The Defendants contend that "the facts and questions of law pertaining to each individual case predominate over the commonalities suggested by plaintiffs, thereby precluding consolidation." See Cleaver-Brooks, Inc.'s Affirmation in Opposition to Plaintiff's Motion for Joint Trial, p.7, ¶ 21. Further, Defendants contend that the facts in Malcom differ than the cases at hand, as the consolidation in Malcom dealt with only one type of primary job site.

In reviewing all of the Malcom factors, the Court finds, and it is undisputed that both Carl Kenneth Aylward and Salomon Serrano have similar occupations. Both Plaintiffs' careers involve the handling of asbestos related products through repair and maintenance of boilers. Further, both plaintiffs developed pleural mesothelioma during the course of their employment and succumbed to their illness. Plaintiffs state that "Carl Kenneth Aylward and Salomon Serrano may not have been exposed at one common worksite; however, both were exposed to asbestos-containing products at commercial and hospital sites within the metropolitan New York area". See Affirmation In Support Of Motion For Joint Trial, p.10, ¶ 19. While the note of issue was filed in the case of Salomon Serrano, discovery is not complete in the case of Carl Kenneth Aylward. Finally, Carl Kenneth Aylward and Salomon Serrano are both represented by Weitz & Luxenberg, P.C., and defendant Cleaver-Brooks is the sole remaining defendant in both cases.

This Court finds that 6 of the 8 factors in Malcom were satisfied. Between these two cases, there are common issues of law and fact. Notably, both the CPLR and the CMO specifically allow joinder, and the CMO permits joinder based upon the Malcom factors. Further, it is not necessary for all the Malcom factors to be satisfied and safeguards are available in order to prevent jury confusion. Here, the Malcom factors support a joint trial.

Accordingly, it is

ORDERED that a joint trial is granted as to Carl Kenneth Aylward v Air & Liquid Systems Corporation, etal., 190170/2017 and Salomon Serrano v A.0 Smith Water Products Co et al., 190246/2016; and it is further

ORDERED that, within thirty days of entry, plaintiffs shall serve a copy of this order upon all parties, together with notice of entry.

This constitutes the Decision/Order of the Court.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites