Backer v. Abb, Inc. (2021)

Our plain-English summary of Backer v. Abb, Inc. (New York Supreme Court, December 17, 2021).

Leonard Backer sued many companies in New York County, alleging he developed mesothelioma from asbestos exposure while working as an electrician. He asked the court to try his case together with that of Edward Unger, an electrician's mate who also has mesothelioma and is living. He also asked for a joint trial of three other cases (Katechis, McGibbon and McLaughlin), in which the workers had died of pleural mesothelioma after working with similar materials such as joint compound and caulk. A third proposed joint trial was withdrawn. Defendants objected, saying the plaintiffs worked at different sites, some defendants did not overlap, and a joint trial would confuse jurors and prejudice them. The court applied the Case Management Order and the Malcolm factors. It found six of eight factors met for Backer and Unger, and five of eight for the other three cases. It held that the lack of common worksites did not bar joinder because safeguards could prevent juror confusion. The court granted both joint trials.

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: December 17, 2021
• Citation: 2021 NY Slip Op 32739(U)
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted plaintiff's motion for joint trials of Backer with Unger, and of Katechis with McGibbon and McLaughlin, over the defendants' opposition.

What the court held. Under the New York asbestos Case Management Order and the Malcolm factors, cases may be joined for trial when enough factors are met (three or more for a three-case joinder, with the same disease), even without common worksites, and safeguards can limit juror confusion.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Leonard Backer: mesothelioma

• Edward Unger: mesothelioma

• Anastasios Katechis: pleural mesothelioma; died

• Gerard McGibbon: pleural mesothelioma; died

• John McLaughlin: pleural mesothelioma; died

Who	Work	Where	When	Products
Leonard Backer	electrician
Edward Unger	electrician's mate
Anastasios Katechis				joint compound, asbestos containing joint compound and caulk
Gerard McGibbon				joint compound, asbestos containing joint compound and caulk
John McLaughlin				joint compound, asbestos containing joint compound and caulk

The defendants

• ABB, Inc. (manufacturer)
• Tishman Liquidating Corp. (contractor)
• Aurora Pump Co. (manufacturer)
• George A. Fuller Co. (contractor)
• William Powell 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.

2021 NY Slip Op 32739(U)

LEONARD BACKER, Plaintiff,

v.

ABB, INC., AIR & LIQUID SYSTEMS CORPORATION, ALCOA INC., ALGOMA HARDWOODS, INC.,

ALLEN-BRADLEY COMPANY, INC., ARMSTRONG INTERNATIONAL, INC., ATWOOD & MORRILL

CO., INC., AURORA PUMP COMPANY, BURNHAM CORPORATION, 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

LLC, 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 &

CONSTRUCTION CO., INC., TISHMAN SPEYER PROPERTIES, INC., UNION CARBIDE

CORPORATION, WARD LEONARD ELECTRIC CO., WARREN PUMPS LLC, WEIL McLAIN,

WEYERHAEUSER COMPANY, WILLIAM POWELL COMPANY (THE), YORK INTERNATIONAL

CORPORATION, GENERAL RAILWAY SIGNAL COMPANY, GEORGE A. FULLER COMPANY,

GIAMBOI AND SONS, INC., GIAMBOI BROS., 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 SUCCESSOR TO PENNSYLVANIA PUMP & COMPRESSOR

COMPANY AND COOPER BESSEMER., ALRAY CONSTRUCTION CORP., INDIVIDUALLY AND AS

SUCCESSOR TO R.E. HEBERT AND COMPANY, INC., R.E. HEBERT AND COMPANY, INC.,

Defendant.

Docket No. 190105/2020, Motion Seq. No. 001.

December 17, 2021.

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 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 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 joint trials is granted for the reasons set forth below.

Here, plaintiff moves for 3 joint trials as follows: (1) the instant action with Unger v AW Chesterton, Co., et. al., 190098/2020; (2) Katechis v Allied Building Products, Corp., et. al., 190330/19 with McGibbon v AO Smith Water Products, et. al., 190045/2020 and McLaughlin v Air & Liquid Systems Corp., et. al., 190076/2020; and (3) Ferreri v Alcoa, Inc., et. al., 190275/19 with Matier v Air & Liquid Systems Corp., et. al., 190228/19. Defendants oppose. Thereafter, plaintiff withdrew the third prong of the instant order to show cause. Below, the Court addresses and decides the remainder of the motion with regards to a joint trial of the numbers (1) and (2) listed above.

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. B. 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). As to consolidation of three cases, the CMO states that "[u]pon good cause shown, a Trial Judge in NYCAL may join a maximum of three cases for trial where it determines that 1) joinder is warranted under three or more of the factors described in Malcolm and New York State cases interpreting Malcolm, and 2) where the three plaintiffs share the same disease. For purposes of this section `same disease' shall mean that all the plaintiffs in the three cases proposed to be joined for trial share one of the following four categories of disease: 1) pleural mesothelioma, or 2) non-pleural mesothelioma, or 3) lung cancer, or 4) other cancers." CMO, § XXV. B.

Plaintiff argues that consolidation of the cases for joint trial as specified above is appropriate. With respect to the instant action and the Unger action, plaintiff contends that both plaintiffs, 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 mate respectively, working on similar equipment and machinery. As to plaintiffs Anastasios Katechis, Gerard McGibbon, and John McLaughlin, plaintiff argues that all three plaintiffs developed mesothelioma, from which they all passed away, as a result of exposure to asbestos during the course of their employment working on similar materials such as asbestos containing joint compound and caulk. Moreover, the discovery in all five of these cases have been completed, and all five plaintiffs are represented by the same counsel.

In opposition, defendants argue that plaintiff's misleading and over generalization of the facts of the cases are insufficient to meet their burden to establish that the commonalities among the plaintiffs overshadow the unique circumstances of each case. Defendants further argue that a joint trial violates defendants' due process and equal rights protections. Defendants contend that, due to the number of different worksites that Mr. Backer and Mr. Unger worked at, with no commonality, each plaintiffs' unique worksites and exposure would prevent a joint trial. Defendants also argue that there are certain defendants in the two cases that do not overlap, as well as differing causes of action. According to defendants, a joint trial in asbestos matters fails to 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 plaintiffs, Mr. Backer and Mr. Unger, had similar occupations. Both plaintiffs were exposed to asbestos through their employment and their handling of similar materials and equipment. Additionally, both plaintiffs developed mesothelioma from which they both currently live with, the discovery in both of these actions are complete, and both plaintiffs have the same counsel. Counsel for the opposing defendants in the instant action represent defendants Tishman Liquidating Corp., Aurora Pump Co., George A. Fuller Co., and William Powell Co., and such counsel represents Aurora Pump Co., Armstrong International, Grundfos, and Catepillar

Inc. in the Unger action. Thus, six of the eight Malcolm factors have been satisfied. There are common issues of law and fact in both actions. The CMO explicitly states that the Court may order joinder of cases based upon the Malcolm factors and that not all such factors must be present. Here, the Malcolm factors support joinder of the two actions. Although the two plaintiffs did not share common worksites, this does not preclude joinder of the cases for trial. Adequate safeguards can be put in place during the trial to avoid juror confusion. Thus, plaintiff's motion seeking a joint trial is granted as to the instant action with Unger v AW Chesterton, Co., et. al., 190098/2020.

Turning to the portion of plaintiff's motion seeking a joint trial of Katechis v Allied Building Products, Corp., et. al., 190330/19 with McGibbon v AO Smith Water Products, et. al., 190045/2020 and McLaughlin v Air & Liquid Systems Corp., et. al., 190076/2020, defendants raise the same arguments as in the Backer and Unger cases, arguing that the three plaintiffs here did not share a common worksite, there are certain defendants in the two cases that do not overlap, and there are differing causes of action such that defendants would be prejudiced by a joint trial. However, a review of the documents reveals that the three plaintiffs, Anastasios Katechis, Gerard McGibbon, and John McLaughlin, were exposed to the same asbestos-containing materials through their respective employment, from which all three plaintiffs developed pleural mesothelioma and subsequently passed away. Additionally, the discovery in the three actions are complete, and all such plaintiffs have the same counsel. Thus, five of the eight Malcolm factors have been satisfied. There are common issues of law and fact in these actions. As Hon. Manuel Mendez previously held, "[j]udicial economy would be served by consolidating the actions of deceased plaintiffs with mesothelioma and whose exposure was related to their work on similar products.... In these case consolidations: (1) the central issue is the same; (2) it is the same Plaintiffs counsel in the actions; (3) the Plaintiffs suffered from the same disease; (4) the Plaintiffs in the group are all deceased; and (5) the Plaintiffs were exposed ... in a similar manner." Haley v ABB, Inc., 190150/19, mot. 008, dated December 11, 2019. Moreover, the CMO specifically permits the joint trial of three actions where, as here, three or more of the Malcolm factors have been met and the three plaintiffs share the same disease. As stated above, although the plaintiffs did not share common worksites, this does not preclude joinder of the cases for trial. Adequate safeguards can be put in place during the trial to avoid juror confusion. Thus, plaintiff's motion seeking a joint trial is granted as to Katechis v Allied Building Products, Corp., et. al., 190330/19, McGibbon v AO Smith Water Products, et. al., 190045/2020, and McLaughlin v Air & Liquid Systems Corp., et. al., 190076/2020. Accordingly, it is

ORDERED that plaintiff's 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 Chesterton, Co., et. al., 190098/2020; and it is further

ORDERED that a joint trial is granted as to Katechis v Allied Building Products, Corp., et. al., 190330/19, McGibbon v AO Smith Water Products, et. al., 190045/2020, and McLaughlin v Air & Liquid Systems Corp., et. al., 190076/2020; 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