Abrams v. Foster Wheeler (In re New York City Asbestos Litigation, 2014)

Our plain-English summary of In re New York City Asbestos Litigation (New York Supreme Court, July 22, 2014).

Six sets of plaintiffs in New York City asbestos cases asked the court to try their actions together. The workers or former workers were Frederick Abrams, Anthony Bova, James Futia, William Gay and James McGinnity, plus Denise Obremski, who was allegedly exposed through her husband's work clothes. Four had lung cancer and two (McGinnity and Obremski) had mesothelioma. Defendants opposed. The alleged exposures covered steel plant work, electrician work and plumbing/steamfitting at commercial and industrial sites, and Navy and Navy Yard work. The court weighed judicial economy against fairness and applied factors including worksite, occupation, time of exposure, disease, whether the plaintiff is alive, and the number of defendants. It consolidated Bova, Futia, Gay and McGinnity, finding similar jobs, overlapping exposure periods, similar materials and mostly lung cancer, with no undue prejudice shown. It ordered Obremski tried separately because she alone claimed secondhand exposure. It ordered Abrams tried separately because he was the only Navy shipfitter and federal maritime law might apply to his case.

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: July 22, 2014
• Citation: 2014 NY Slip Op 31893
• Docket: Docket No. 108667/07, Motion Seq. No. 01
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted the plaintiffs' motion in part, consolidating the Bova, Futia, Gay and McGinnity actions for a joint trial and ordering the Obremski and Abrams actions tried separately.

What the court held. A joint trial of asbestos cases should be granted unless the opposing party shows specific prejudice to a substantial right, but not where individual issues predominate over common ones. Courts weigh the Malcolm factors: worksite, occupation, period of exposure, disease, whether the plaintiff is alive, and the number of defendants.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Frederick Abrams: lung cancer; died

• Anthony Bova: lung cancer

• James Futia: lung cancer; died

• William Gay: lung cancer

• James McGinnity: mesothelioma; died

• Denise Obremski (family member): mesothelioma; died

Who	Work	Where	When	Products
Frederick Abrams	shipfitter (the Navy); military service	United States Navy	1960s	pipe and block insulation, insulation, pipe covering, pumps, boilers, valves
Anthony Bova	machine helper and operator (iron and steel)	Bethlehem Steel, Lackawanna, Lackawanna, New York	1950s-1980s	pipe and block insulation, gaskets and packing, insulation, gaskets, packing, pipe covering, pumps, valves
Anthony Bova	home renovation		1970s
James Futia	electrician	various commercial and residential sites and a naval shipyard	1960s-1980s	pipe and block insulation, gaskets and packing, asbestos textiles, insulation, gaskets, rope, pipe covering, pumps, boilers, generators
William Gay	plumber and steamfitter	various commercial and industrial job sites	1960s-1980s	pipe and block insulation, gaskets and packing, asbestos textiles, insulation, gaskets, rope, pipe covering, pumps, boilers, valves
James McGinnity	electrician	various commercial job sites	1950s-late 1960s	pipe and block insulation, insulation, pipe covering, pumps, boilers, generators
Denise Obremski	wife laundering husband's work clothes (the Navy); dust brought home	Brooklyn Navy Yard, Brooklyn, New York	1977	pipe and block insulation, gaskets and packing, insulation, packing, pipe covering, pumps, boilers, turbines, valves

The defendants

• Foster Wheeler (manufacturer)
• GE (manufacturer)
• Goulds (manufacturer)
• Crane Co. (manufacturer)
• Georgia Pacific (manufacturer)
• Goodyear (manufacturer)
• Cleaver Brooks (manufacturer)
• Westinghouse (manufacturer)
• Weil McLain (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.
• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (U.S. Court of Appeals, Second Circuit, 1992). The Second Circuit affirmed the plaintiffs' verdicts on causation, failure to warn and the dismissal of the design defect claim, but reversed the prejudgment interest awards on survival-action and future damages. It set out a method for combining the settlement set-off with the cap on non-economic damages, remanded the question of aggregating set-offs, and remanded the Barone pain-and-suffering award for a new trial. It affirmed the defense verdict against Feldman.
• Johnson v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1990). The Second Circuit affirmed the jury judgment for plaintiffs John and Ann Marie Johnson, including compensatory and punitive damages, against Celotex and Owens-Illinois; one judge dissented as to punitive damages.
• Matter of New York City Asbestos Litigation v. Baxter Healthcare Corporation (New York Supreme Court, Appellate Division, 1st Dept., 2013). The appellate court affirmed the trial court's order consolidating the three plaintiffs' cases for trial, rejecting Volkswagen Group of America's challenge to consolidation.
• Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2012). The First Department affirmed the trial court's order consolidating the three plaintiffs' actions against Colgate-Palmolive for a joint trial, rejecting Colgate-Palmolive's appeal.

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.

2014 NY Slip Op 31893(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION.

This Document Relates To: CAROLYN ABRAMS, Individually and as Administratix, for the Estate of

Frederick J. Abrams, etal., Plaintiffs,

v.

FOSTER WHEELER LTD., etal., Defendants.

Docket No. 108667/07, Motion Seq. No. 01.

July 18, 2014.

Filed July 22, 2014.

Supreme Court, New York County.

Daniel Homer, Esq., Weitz & Luxenberg, P.C., 700 Broadway, New York, NY 10003, 212-558-5500, for plaintiffs. Jennifer T. Childs, Esq., Lynch Daskal Emery LLP, 264 W. 40th St., New York, NY 10018, for Goodyear. Stephen Novakidis, Esq., Sedgwick, LLP, Three Gateway Ctr., 12th Fl., Newark, NJ 07102, 973-242-0002, for joint defendants.

Michael S. Cromer, Esq., Barry, McTiernan & Moore, 2 Rector St., 14th fl., New York, NY 10006, 212-313-3600, for Cleaver Brooks.

DECISION AND ORDER

BARBARA JAFFE, Judge.

It is ordered that this motion decided in accordance with accompanying Decision/Order.

By order to show cause, plaintiffs move pursuant to CPLR 602 for an order consolidating the following "FIFO" cases for a joint trial: (1) Frederick Abrams, Index No. 108677/07; (2) Anthony Bova, Index No. 102148/03; (3) James Futia, Index No. 100919/08; (4) William Gay, Index No. 127678/02; (5) James McGinnity, Index No. 104643/07; and (6) Denise Obremski, Index No. 108412/07.

Defendants jointly oppose; defendant Goodyear separately opposes in the Bova and Gay actions, and defendant Cleaver Brooks opposes in the Futia action.

I. APPLICABLE LAW

Pursuant to CPLR 602(a), a motion for a joint trial rests in the discretion of the trial court. (See Matter of New York City Asbestos Litigation [Dummit], ___ NYS2d ___, 2014 NY Slip Op 05054 [1st Dept 2014]; JP Foodservice Distrib., Inc. v PricewaterhouseCoopers LLP, 291 AD2d 323 [1st Dept 2002]; Rodgers v Worrell, 214 AD2d 553 [2d Dept 1995]). Generally, in order to join actions for trial, there must be a "plain identity between the issues involved in the []two controversies." (Viggo S.S. Corp. v Marship Corp. of Monrovia, 26 NY2d 157 [1970]; Geneva Temps, Inc. v New World Communities, Inc., 24 AD3d 332 [1st Dept 2005]). A motion for a joint trial should be granted unless the opposing party demonstrates prejudice to a substantial right (in re New York City Asbestos Litigation [Bernard], 99 AD3d 410 [1st Dept 2012]), and allegations of prejudice must be specific and non-conclusory (Dummitt, 2014 NY Slip Op 05054). However, a joint trial should not be granted if individual issues predominate over common ones. (Id.; Bernard, 99 AD3d 410). In determining whether to consolidate the individual plaintiffs' cases for a joint trial where exposure to asbestos is alleged, courts consider the factors set forth in Malcolm v Ntl. Gypsum Co., 995 F2d 346 (2d Cir 1993), which follow, in pertinent part:

(1) whether the plaintiffs worked at a common or similar worksite;

(2) whether the plaintiffs had similar occupations, as a "worker's exposure to asbestos must depend mainly on his occupation," such as those who worked directly with materials containing asbestos as opposed to those who were exposed to asbestos as bystanders;

(3) whether the plaintiffs were exposed to asbestos during the same period of time;

(4) whether the plaintiffs suffer or suffered from the same disease, as the jury at a consolidated trial will hear evidence about the etiology and pathology of different diseases, and prejudice may result where the jury learns that a terminal cancer engenders greater suffering and shorter life span than does asbestosis; (5) whether the plaintiffs are alive; "dead plaintiffs may present the jury with a powerful demonstration of the fate that awaits those claimants who are still living"; and

(6) number of defendants named in each case.

(Malcolm, 995 F2d at 350-353).

To reduce juror confusion and minimize any alleged prejudice to defendants in consolidated cases, the court may use various techniques such as providing "limiting, explanatory and curative instructions," giving notebooks to jurors to "assist them in recording and distinguishing the evidence in each case," and presenting the jurors with plaintiff-specific verdict questions and sheets. (Dummitt, 2014 NY Slip Op 05054).

II. PLAINTIFFS' INFORMATION

A. Frederick Abrams

Abrams died from lung cancer on April 8, 2010. While serving in the United States Navy as a shipfitter during the 1960s, he was allegedly exposed to asbestos-containing material and products including insulation, pipe covering, pumps, boilers, and valves. The defendants remaining in his action are Foster Wheeler, GE, and Goulds.

B. Anthony Bova

Bova suffers from lung cancer. He was allegedly exposed to asbestos from the 1950s to the 1980s while employed as a machine helper and operator at Bethlehem Steel in Lackawanna, New York, working with asbestos-containing insulation, gaskets, packing, pipe covering, pumps, and valves, and also while renovating his home during the 1970s. The defendants remaining in his action are Crane Co., Foster Wheeler, GE, Georgia Pacific, Goodyear, and Goulds.

C. James Futia

Futia passed away from lung cancer on December 30, 2006, and was allegedly exposed to asbestos from the 1960s to the 1980s while working as an electrician at various commercial and residential sites, as well as a naval shipyard. He was allegedly exposed to asbestos-containing insulation, gaskets, rope, pipe covering, pumps, boilers, and generators. The defendants remaining in his action are Cleaver Brooks, Foster Wheeler, Goulds, Westinghouse, and Weil McLain. D. William Gay

Presently suffering from lung cancer, Gay was allegedly exposed to asbestos contained in insulation, gaskets, rope, pipe covering, pumps, boilers, and valves while working as a plumber and steamfitter at various commercial and industrial job sites from the 1960s to the 1980s. The two defendants remaining in his action are Foster Wheeler and Goodyear. E. James McGinnity

McGinnity died from mesothelioma on September 17, 2007. He was allegedly exposed to asbestos while working with asbestos-containing insulation, piper covering, pumps, boilers, and generators during his employment as an electrician at various commercial job sites from the 1950s to the late 1960s. The defendants remaining in his action are Foster Wheeler, GE, and Goulds.

F. Denise Obremski

Obremski died from mesothelioma on January 2, 2007. She was allegedly exposed to asbestos through her husband, who was exposed to asbestos contained in insulation, packing, pipe covering, pumps, boilers, turbines, and valves at the Brooklyn Navy Yard in 1977, and through her own exposure while laundering his clothes. The two defendants remaining in her action are Foster Wheeler and GE.

III. ANALYSIS

A. Judicial economy

Plaintiffs argue that consolidating these cases will save time and lead to more efficient and speedier dispositions as the same state of the art evidence and medical evidence will be introduced at each trial. However, state of the art evidence is specific to a particular occupation or industry, and may differ among, for example, automotive or friction products, powerhouse workers, and Navy engineers. (See Curry v Am. Standard, 2010 WL 6501559 [SD NY 2010] [differences in degree and duration of plaintiffs' asbestos exposure would likely require presentation of different complex state-of-art evidence in each case, further mitigating against potential efficiency of consolidation]). Moreover, while medical evidence may be duplicative, it takes less trial time than that spent on each plaintiffs medical history. Thus, the length of the trial depends on the plaintiffs' occupations and medical histories.

Defendants assert that the more plaintiffs in a trial group, the more defendants, and a correspondingly longer process of jury selection and trial. And, when a multi-plaintiff trial is scheduled, jurors are asked to serve weeks if not months. Thus, they maintain, finding jurors who will commit to a lengthy trial prolongs jury selection, as does the necessity of selecting extra alternates against the possibility that one or more jurors will seek to be released before the trial concludes. Defendants also note that jurors who are students or professionals and/or hold managerial or supervisory positions may be unable to serve for a long period, yielding a less diverse pool.

Defendants also contend that rather than promoting judicial economy and efficiency, consolidation has the opposite effect. According to their statistics, of the most recent 13 asbestos trials in New York County, those with only one plaintiff lasted up to two weeks each, whereas those with more lasted as long as 16 weeks. They insist that these statistics undercut plaintiffs' claims that consolidation results in speedier dispositions.

A case I tried recently commenced with three plaintiffs and 14 defendants. At the verdict, there remained three plaintiffs and five defendants. Jury selection lasted approximately two weeks, and the trial approximately 12 weeks. In the last case that I tried, we began with three plaintiffs and 10 defendants, jury selection took four weeks, and the three plaintiffs took approximately three weeks to present their cases against the three remaining defendants, with the trial lasting approximately five weeks.

In juxtaposition with the alleged New York County consolidation trend (see In re New York City Asbestos Litigation, 188 AD2d 214 [1st Dept 1993], affd 82 NY2d 821 [joint trials may potentially reduce cost of litigation, promote judicial economy, speed disposition of cases, and encourage settlements]; Matter of New York City Asbestos Litigation [Dummit], 36 Misc 3d 1234[A], 2012 NY Slip Op 51597[U] [Sup Ct, New York County 2012] [in New York County, asbestos cases have been consolidated for trial historically]), elsewhere the trend is to prohibit the consolidation of asbestos trials absent the consent of all parties. (Ohio R Civ P 41[A][2]; Tex Civ Prac & Rem Code Ann § 90.009; Kan Stat Ann § 60-4902[j]; GA Code Ann § 51-14-10; Mich Admin Order No. 2006-6).

And, while judicial economy and efficiency should be considered in determining whether to consolidate, they "must yield to a paramount concern for a fair and impartial trial." (Johnson v Celotex Corp., 899 F2d 1281 [2d Cir 1990]). "The systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each

individual plaintiff's — and defendant's — cause not be lost in the shadow of a towering mass litigation." (In re Brooklyn Navy Yard Asbestos Litig., 971 F2d 831 [2d Cir 1992]; see also Malcolm, 995 F2d at 350 ["benefits of efficiency can never be purchased at the cost of fairness"]). However, consolidating cases that have some differences does not "suggest the prejudice of defendant's right to a fair trial." (In the Matter of New York City Asbestos Litigation [Baruch], 111 AD3d 574 [1st Dept 2013]).

Accordingly, in exercising my discretion in deciding whether to consolidate these cases, I duly consider judicial economy and efficiency. Moreover, as these cases form a FIFO cluster, there is less urgency to resolve them. B. Obremski

Obremski is the only plaintiff claiming secondary or secondhand exposure through the work of another and she alleges exposure for one year only. Absent any shared occupation or worksite or exposure, her case should be tried separately from the others. (See Bischofsberger v AO Smith Water Prods., 2012 WL 4462393, 2012 NY Slip OP 32414[U] [Sup Ct, New York County] [denying consolidation of two cases where one plaintiff's sole exposure was through laundering husband's work clothes]; In the Matter of New York City Asbestos Litigation [Altholz], 11 Misc 3d 1063[A], 2006 NY Slip Op 50375[U] [Sup Ct, New York County 2006] [denying consolidation to one plaintiff as she experienced secondary exposure from dust brought home from husband]).

C. Bova, Futia, Gay, and McGinnity

Bova, Futia, Gay, and McGinnity all allege exposure at industrial, commercial and/or residential sites, and were similarly employed. Bova's and McGinnity's exposures began in the 1950s, and all four were exposed during the 1960s, with Bova's, Futia's, and Gay's exposures continuing through the 1980s. Given these similarities, any state of the art evidence they offer overlaps. (See eg Dummitt, 2014 NY Slip Op 05054 [in analyzing whether times of exposure were common, focus is on state of art evidence at time]; In re New York City Asbestos Litigation [Capozio], 22 Misc 3d 1109[A], 2009 NY Slip Op 50072[U] [Sup Ct, New York County 2009] [almost all plaintiffs performed similar tasks in construction trades which exposed them to asbestos during overlapping periods between 1940s and 1990s; state of art and other expert testimony also would be substantially common]).

These plaintiffs also allege exposure to asbestos contained in insulation, pipe covering, and pumps, three of them were exposed to valves, boilers, and gaskets, and two were exposed to rope and generators. (See Dummitt, 36 Misc 3d at 1234[A] [finding sufficient similarity of occupations as both plaintiffs alleged exposure from work, including equipment repair and maintenance and construction work, and nature of exposure also similar]). Three of them have lung cancer (see Baruch, 111 AD3d at 574 [affirming consolidation of three cases even though one plaintiff had mesothelioma and other two had lung cancer]), and two of the four are still alive. Foster Wheeler is a defendant in all of their cases, Goulds is a defendant in three cases, and GE and Goodyear in two cases.

For these reasons, there exist in these cases several common issues that predominate over individual issues, and defendants have not established that any undue prejudice will result, or that their fourteenth amendment right to due process will be violated. (See Baruch, 111 AD3d 574 [consolidation properly granted; differences in plaintiffs' cases did not outweigh substantial overlap of factual and legal issues or suggest prejudice of defendant's right to fair trial]). To the extent that evidence will differ in their cases, the jurors will be provided with notebooks and I will issue instructions as needed. (Dummitt, 2014 NY Slip Op 05054).

D. Abrams

Abrams is the only Navy shipfitter among the plaintiffs, and he alleges exposure to asbestos only during the 1960s. As plaintiffs have not shown that he shared a common occupation or worksite with the others, his case will be tried separately from the others. Moreover, federal maritime law may apply uniquely to his action. (See Capozio, 22 Misc 3d at 4 [as one plaintiff worked for Navy, federal law could be implicated and cause jury confusion if case consolidated with those not involving federal law]; Altholz, 11 Misc 3d 1063[A], 2006 NY Slip Op 50375[U] [severing for trial case where that plaintiff uniquely exposed while working on ship; addition of federal maritime law could confuse jury]).

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that plaintiffs' motion to consolidate is granted to the extent of consolidating the following cases for a joint trial: (1) Group One: (a) Anthony Bova, Index No. 102148/03; (b) James Futia, Index No. 100919/08; (c) William Gay, Index No. 127678/02; and (d) James McGinnity, Index No. 104643/07;

It is further

ORDERED, that the Denise Obremski action, Index No. 108412/07, shall be tried separately; it is further ORDERED, that the Frederick Abrams action, Index No. 108667/07, shall be tried separately; it is further ORDERED, that the trials of Obremski and Adams shall commence subject to court availability on at least five days' notice following the completion of the trials ahead of them; it is further

ORDERED, that the parties shall appear for jury selection as previously scheduled on December 1, 2014 at 9:30 am in room 279, 80 Centre Street, New York, New York; it is further

ORDERED, that the parties are directed to schedule a settlement conference with the Special Master to take place before jury selection; and it is further

ORDERED, that the parties are directed to convert this matter to e-filing.

Sources

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