Bischofsberger v. AO Smith Water Products (2012)

Our plain-English summary of Bischofsberger v. AO Smith Water Products (New York Supreme Court, September 20, 2012).

Two New York County lawsuits were brought over deaths from mesothelioma. One was on behalf of Diana Verde, who had peritoneal mesothelioma, and the other on behalf of Sydney Ploeckelmann, who had pleural mesothelioma. Verde was exposed from 1965 to 1990 by laundering the work clothes of her husband, a Con Edison mechanic. Ploeckelmann was a refrigeration and engine machinist exposed in the Navy in 1952 to 1954. The plaintiffs, represented by the same counsel, asked the court to try the two cases together. The court looked at factors such as work site, occupation, time of exposure, disease, discovery status and counsel. It found that the cases shared only general testimony on asbestos science, state of the art and the nature of mesothelioma. They had different exposure periods, different types of exposure, mostly different defendants (only Goulds Pumps was in both), and Navy-specific issues in Ploeckelmann's case. It held that joint trial would not serve judicial economy, so it denied the motion. It ordered the Verde case tried first and the Ploeckelmann case right after.

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: September 20, 2012
• Citation: 2012 NY Slip Op 32414(U)
• Docket: Docket No. 107352/2005, Motion Seq. No. 001
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied the plaintiffs' motion to consolidate the Verde and Ploeckelmann mesothelioma actions for a joint trial, and ordered the Verde case tried first and the Ploeckelmann case immediately after.

What the court held. A court may join cases for trial under CPLR 602 where common questions exist, and in asbestos cases it weighs the Malcolm factors (work site, occupation, time of exposure, disease, living or deceased, discovery status, same counsel). Joinder was denied because the cases would share too little testimony to serve judicial economy.

Issues decided: Maritime Law and Navy Ships, Trial Procedure and Discovery, Take-Home Exposure.

The people and their exposure

• Diana Mary Verde (family member): peritoneal mesothelioma; died

• Sydney Ploeckelmann: pleural mesothelioma; died

Who	Work	Where	When	Products
Diana Mary Verde	laundering her husband's work clothes (power plants and utilities); dust brought home		1965-1990
Sydney Ploeckelmann	Refrigeration and Engine Machinist (the Navy); military service		1952-1954

The defendants

• AO Smith Water Products (manufacturer)
• Goulds Pumps Inc. (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.

2012 NY Slip Op 32414(U)

Joanne Bischofsberger, Carolanne Chamberlain and Suzanne V. Paddock, as co-executrixes of

Estate of Diana Mary Verde and Anthony Verde, Plaintiffs,

Marilyn Ploeckelmann, individually and as Administratrix of the Estate of Sydney Ploeckelmann,

Plaintiffs,

v.

AO Smith Water Products, et. al., Defendants.

Docket No. 107352/2005, Motion Seq. No. 001.

September 19, 2012.

Filed September 20, 2012.

Supreme Court, New York County.

DECISION/ORDER

JUDITH J. GISCHE, Judge.

Plaintiffs in each of the two above referenced actions move to consolidate them for trial. The defendants remaining in both actions have submitted a joint memorandum of law in opposition. Both the action on behalf of Diana Verde ("Verde action") and the action on behalf of Sydney Ploeckelmann ("Ploeckelmann action") involve claims that as a result of exposure to asbestos, each of the named decedents contracted Mesothelioma. The two cases form a "cluster" of cases that were referred to this court by order of Hon. Sherry Klein Heitler dated June 11, 2012.

CPLR §602 permits the court, within its discretion, to join cases for trial when there are common questions of law and fact. Not all of the facts or issues need to be identical, but there must be some identity of issues, such that the salutary goal of judicial economy is served. Cummin v. Cummin, 56 AD3d 400 (1st dept. 2008); Bradford v. John A. Coleman, 110 AD2d 965 (3rd dept. 1985). Once the requirement of commonality has been satisfied, the opponent needs to demonstrate that a joint trial will unduly prejudice a substantial right. Geneva Temps, Inc. v. New World Communities, 24 AD3d 332 (1st dept. 2005). In the case of asbestos litigation, joint trials of more than one plaintiff at a time have been routinely permitted, see e.g.: In re New York Asbestos Litigation, 23 Misc3d 1109(A) (NY Co. Sup Ct. 2009; Shulman, J); New York City Asbestos Litigation v. A.O. Smith Water Products, 9 Misc3d 1109(A) (NY Co. Sup. Ct. 2005, York, J.); Ballard v. Anchor Packing Company, (index # 190102/08; NY Co. Sup. Ct., order dated Sept. 9, 2009, Feinman, J.); Ames v. A.O. Smith Water Products, et. al., (index #107574, NY Co. Sup Ct. Order dated March 16, 2009, Friedman, J.); Bauer v. A.O. Smith Water Products, (index #115756/07, NY Co. Sup. Ct., order dated August 21, 2008; Lobis, J.); Matter of New York Asbestos Litigation, 173 Misc2d 121 (NY Co. Sup. Ct., 1997, Lehner, J.). This court has itself, on prior occasions, permitted the grouping of cases within a particular cluster for joint trial. (In re: NYC Asbestos Litigation, 2011 WL 1826854 [Order dated January 27, 2011]; In re: NYC Asbestos Litigation, index # 114483/02 and others, [Order dated May 2, 2011]).

The joint trial format reduces the costs of litigation, make more economical use of the trial court's time, speeds the disposition of cases and encourages settlements. In re New York City Asbestos Litigation (Brooklyn Naval Shipyard Cases), 188 AD2d 214 (1st Dep't 1993) aff'd 82 NY2d 821 (1993).

In deciding what cases should be joined for trial, the courts have looked to the factors enunciated in the seminal case of Malcolm v. National Gypsum Co, 995 F2d 346 (2nd Cir. 1993), where the Second Circuit Court of Appeals delineated specific factors that are relevant in determining whether to jointly try cases based upon asbestos exposure. The factors include: [1] common work site; [2] similar occupation; [3] similar time of exposure; [4] type of disease; [5] whether plaintiffs are living or deceased; [6] status of discovery in each case; and [7] whether all plaintiffs are represented by the same counsel. None of these factors is dispositive on its own, but each serves as a guideline in assisting the court in deciding whether to combine all, some or none of the cases for trial. Malcolm v. National Gypsum Co., 995 F2d at 350. Moreover, these guideline are not exclusive of other considerations that might be relevant to any particular motion for a joint trial.

Applying these legal standards to the facts at bar, the court holds as follows:

common work site/similar occupation

This court frequently considers these two factors simultaneously, because they really concern the type of asbestos exposure each plaintiff is claiming and whether there will be shared testimony about the airborne fibers to which plaintiffs were exposed. IN RE NEW YORK CITY ASBESTOS LITIGATION, In Extremis April 2011/FIFO August 2009 (index # 190323/10, NY Co. Sup Ct., order dated September 7, 2011, Gische, J.); In re Asbestos Litigation, 1998 WL 230950 (SDNY 1998). Carroll v. A.W. Chesterton Company (index # 190295/09; NY Co. Sup. Ct., order dated August 25, 2010, Friedman, J.). ("The court recognizes that the plaintiffs ... did not share the same work site or same occupations. However, there are overlapping exposures, that is, exposures to various of the same asbestos-containing products as well as exposures that occurred in the same manner, that is, by working directly with asbestos containing materials and/or by means of by-stander exposure."); In re: New York City Asbestos Litigation (index # 102968/99, NY Co. Sup. Ct., order dated January 9, 2009. Shulman, J) ("... this court finds that there are similarities in the manner in which almost all of the Plaintiffs performed their respective tasks in the construction trades which exposed them to [asbestos containing material] during overlapping periods of time...").

Sidney Ploeckelmann was a Refrigeration and Engine Machinist who was exposed to asbestos while serving in the Navy during 1952 and 1954. There are currently 2 remaining defendants in his case. One defendant, Goulds Pumps Inc., is common to both cases before the court on this motion.

Diana Verde was exposed to asbestos from laundering her husband's work clothes between 1965 and 1990. Her husband was a mechanic at Con Edison during that period of time. There are currently 5 defendants remaining in this case. As previously stated, only one defendant is common to both the Ploeckelmann and Verde cases.

similar time of exposure

The dates of exposure in Sidney Ploeckelmann's case were 1952 through 1954. The dates of exposure in Diana Verde's case were 1965 through 1990.

type of disease

Both Sidney Ploeckelmann and Diana Verdi contracted mesothelioma. Sidney Ploeckelmann suffered pleural mesotheilioma, while Diana Verdi suffered with peritoneal mesothelioma. These are the same disease, albeit they present in different parts of the body. Defendants claim that they will present a defense, that peritoneal cancer in women is not causes by asbestos exposure,

whether plaintiffs are living or deceased

Both of the parties who sustained injury are now deceased.

status of discovery in each case

In both cases, discovery has been competed and they are trial ready.

whether all plaintiffs are represented by the same counsel.

The plaintiffs in both cases are represented by the same counsel.

The court holds that there are not enough similarities in the two cases that would involve shared testimony which would warrant a joint trial in the first instance. There would certainly be some shared testimony. There would be some overlapping

testimony on general science related to asbestos, on some state of the art testimony and on the character and cause of mesothelioma. The testimony in the main, however, would be unique to each particular case.

Although plaintiffs argue that Sidney Ploeckelmann and Diana Verdi's husband were exposed to similar products, these were products that were largely manufactured and or distributed by different defendants. There is only one common defendant among the seven remaining defendants. The Sidney Ploeckelmann case not only involves significantly different dates of exposure, but because he was in the Navy at the time of the claimed exposure, there are unique facts related to state of the art and defenses that are not in any way relevant to the Diana Verdi case. The type of exposure is not the same and the duty, depending on what was known or knowable, may be very different in each case.

Plaintiffs argue that the risk of confusion, which is commonly a consideration in determining whether to consolidate cases, is not present because there are only two cases. Confusion, however pertains to the issue of prejudice. Before the court even reaches that issue, the proponent of consolidation must make a showing that there is a benefit in terms of judicial economy. At bar the issues that would require overlapping testimony are spare and general to almost all asbestos exposure cases, such that there is no basis to favor consolidation in the first instance. Thus, the absence of confusion is not a consideration. Conclusion

In accordance herewith it is hereby:

ORDERED that the motion for a consolidated trial is denied; and it is further

ORDERED that the Diana Verdi case will be tried first; and it is further

ORDERED that the Sidney Ploeckelmann case will tried immediately thereafter; and it is further

ORDERED that any requested relief not expressly granted herein is denied and that this constitutes the decision and order of the court.

Sources

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