Appleton v. Allied Signal (In re New York City Asbestos Litigation, 2017)

Our plain-English summary of In re New York City Asbestos Litigation (New York Supreme Court, December 22, 2017).

Sharen Appleton, executrix of William Appleton's estate, and other plaintiffs in New York City asbestos cases sued Allied Signal, Inc. and other defendants. The plaintiffs asked the court to consolidate five cases for trial. Appleton and Leonard Howell both died of mesothelioma. The opinion says each worked in the U.S. Navy, Appleton as a boiler man from 1958 to 1978 and Howell as a Machinist Mate from 1953 to 1974. Both were allegedly exposed to dust from removing and replacing gaskets, insulation and packing on boilers, piping, pumps, valves and steam traps. The defendants argued that the cases differed in work site, occupation, products, time and defendants, and that a joint trial would confuse the jury. The court applied CPLR 602 and the Malcolm factors. It consolidated the Appleton and Howell cases, finding they shared the same disease, deceased status, counsel, similar Navy exposure and overlapping periods. It ordered the Watts, Kertesz and Vanderhall cases tried individually, because they differed in whether the plaintiff was living or dead, or in the type of cancer.

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 22, 2017
• Citation: 2017 NY Slip Op 32652
• Docket: Docket No. 190289/16, Motion Seq. No. 005
• 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• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.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 Appleton and Howell cases for a joint trial and ordering the Watts, Kertesz and Vanderhall cases tried individually, over the defendants' opposition.

What the court held. Consolidation under CPLR 602 is within the court's discretion and is favored where common questions exist, unless the opposing party shows specific prejudice. Under the Malcolm factors, deceased mesothelioma plaintiffs with similar Navy exposure may be tried together, but living and deceased plaintiffs, and mesothelioma and lung cancer plaintiffs, are not grouped.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• William Appleton: mesothelioma; died

• Leonard K. Howell: mesothelioma; died

• John Watts: mesothelioma; died

• John Kertesz: lung cancer

• Willie B. Vanderhall: lung cancer; died

Who	Work	Where	When	Products
William Appleton	boiler man; military service	U.S. Navy ships	1958-1978	gaskets and packing, pipe and block insulation
William Appleton	boiler inspector	various commercial locations	1978-1991
Leonard K. Howell	Machinist Mate; military service	U.S. Navy ships	1953-1974	gaskets and packing, pipe and block insulation

The defendants

• Allied Signal, Inc.

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.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The Appellate Division affirmed both jury-verdict judgments for the plaintiffs (Konstantin against Tishman Liquidating Corporation, Dummitt against Crane Co.) and dismissed the appeal from the order denying Crane's post-trial motion as subsumed in the judgment appeal; one justice, joined by another, dissented in part as to Dummitt.

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.

2017 NY Slip Op 32652(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION.

This Document Relates to: SHAREN APPLETON as Executrix for the Estate of WILLIAM

APPLETON, Plaintiff(s),

v.

ALLIED SIGNAL, INC., ET AL., Defendants.

Docket No. 190289/16, Motion Seq. No. 005.

Motion December 6, 2017.

December 22, 2017.

Supreme Court, New York County.

MANUEL J. MENDEZ, Judge.

It is Ordered that Plaintiffs' motion to Consolidate is granted to the extent of consolidating for trial the following cases in the following manner:

Group 1 — WILLIAM APPLETON (Index No. 190289/16) and LEONARD K. HOWELL (index No. 190208/16) deceased, with mesothelioma;

Group 2 — JOHN WATTS (Index No. 190281/16) deceased Mesothelioma, to be tried individually;

Group 3 — JOHN KERTESZ (Index No. 190327/16) living with lung cancer, to be tried individually;

Group 4 — WILLIE B. VANDERHALL (Index No. 190131/16) deceased Lung Cancer, to be tried individually;

Of the five (5) cases in this Cluster of cases Plaintiffs' motion seeks to consolidate two cases, of these Asbestos related actions, for trial into one group Plaintiffs allege consolidation is proper because the actions (1) have the same central issue: (a) exposure to the same exact substance (Asbestos), (b) during a related period of time, [c] in a similar manner, (d) all coming from similar sources (packing, pipes, boilers, pumps, gaskets, valves, insulation, steam traps), and (e) all resulting in the same damages (mesothelioma); (2) will require consideration of the same factual evidence; (3) Raise the same core legal issues; (5) are based on a similar set of facts and (6) seek the same relief. Finally plaintiffs argue that consolidation will serve the interest of judicial economy.

Defendants jointly submit written opposition to the motion. Separately defendants submit supplemental opposition to the motion for consolidation, and in essence argue that (1) there are factual differences among the cases that preclude consolidation; (2) consolidation would not serve judicial economy and would prejudice defendants because consolidation would cause jury confusion; (3) consolidation is not proper because the plaintiffs do not satisfy the Malcolm factors of common work site, similar occupations, common remaining defendants, similar time of exposure and status with the other plaintiffs in the proposed groups.

It is alleged that the plaintiffs in the actions for which consolidation is sought, were exposed to asbestos in the following manner:

WILLIAM APPLETON:

Died at age 75 as a result of mesothelioma. Was exposed to asbestos-laden dust during his work as a boiler man in the United States Navy on various ships from 1958 to 1978. As a Boiler man Mr. Appleton was exposed to Asbestos-laden dust from his work removing and replacing asbestos-containing gaskets, insulation, and packing on boilers, piping, pumps, valves and steam traps. He was also exposed while working as a boiler inspector from 1978-1991 at various commercial locations.

LEONARD K. HOWELL:

Died at age 82 as a result of mesothelioma. Was exposed to asbestos-laden dust during his work as a Machinist Mate in the United States Navy on various ships from 1953-1974. As a Machinist Mate Mr. Howell was exposed to asbestos-laden dust from his work removing and replacing asbestos-containing gaskets, insulation, and packing on boilers, piping, pumps, valves and steam traps.

Plaintiff proposes that the court order the cases consolidated in the following groups:

Group 1: Appleton and Howell;

Group 2: Watts;

Group 3: Kertesz;

Group 4: Vanderhall;

The defendants oppose the groupings proposed by the plaintiff and allege that these actions cannot be consolidated because: (1) The plaintiffs lack a common work site and occupation;(2) The manner of exposure and products to which they claim they were exposed to are too diverse and numerous thereby resulting in juror confusion; (3) There is no common defendant in these cases; (4) The plaintiffs were exposed to Asbestos during different periods of time; and (5) There are unique claims and defenses that permeate each individual case preventing consolidation.

Pursuant to CPLR § 602, consolidation lies within the sound discretion of the Court, but is generally favored where there are common questions of law or fact, unless the party opposing the motion demonstrates prejudice of a substantial right in a specific, non-conclusory manner. The burden is on the party opposing the motion to demonstrate prejudice (In Re New York City Asbestos Litigation Konstantin and Dummit, 121 A.D.3d 230, 990 N.Y.S.2d 174, 2014 N.Y. Slip Op 05054 ([1st. Dept. 2014]; Champagne v. Consolidated R.R. Corp., 94 A.D.2d 738, 462 N.Y.S.2d 491 [2nd. Dept. 1983]; Progressive Insurance Company v. Vasquez, 10 A.D.3d 518, 782 N.Y.S.2d 21 [1st. Dept. 2004]; Amcan Holdings, Inc. v. Torys LLP, 32 A.D.3d 337, 821 N.Y.S. 2d 162 (N.Y.A.D. 1st Dept. 2006).

It is usually sufficient, to warrant consolidation of actions, if evidence admissible in one action is admissible or relevant in the other (Maigur v. Saratogian, Inc., 47 A.D.2d 982, 367 N.Y.S.2d 114 [3rd. Dept. 1975]). Where it is evident that common issues are presented consolidation is proper. Consolidation of actions is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent injustice which would result from divergent decisions based on the same facts (Chinatown Apartments, Inc., v. New York City Transit Authority, 100 A.D.2d 824, 474 N.Y.S.2d 763 [1st. Dept. 1984]).

Mass toxic tort cases, including asbestos cases, may be consolidated if they meet the requirements of the general rule governing consolidation of cases (In re Asbestos Litigation, 173 F.R.D.81, 38 Fed.R.Serv.3d 1013 [1997]). Consideration in evaluating consolidation of asbestos cases should be given to the following factors: "(1) Common work site; (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 are represented by the same counsel; and (8) types of cancer alleged (Malcolm v. National Gypsum Co., 995 F.2d 346, 25 Fed. R. Serv.3d 801 [2nd. Circuit 1993]). Not all of these factors need be present and consolidation is appropriate so long as individual issues do not predominate over the common questions of law and fact (See CPLR 602(a); In re New York City Asbestos Litigation, 121 A.D.3d 230 [supra]).

Plaintiffs are not proposing to consolidate cases of living plaintiffs with cases of deceased plaintiffs. "The presence of wrongful death claims and personal injury actions in a consolidated trial is somewhat troublesome. . . The dead plaintiffs may present the jury with a powerful demonstration of the fate that awaits those claimants who are still living." (Malcolm v. National Gypsum Co., [Supra], citing to In re Joint Eastern and Southern Districts Asbestos Litigation (Drago), 125 F.R.D. 60). The defendants may be prejudiced by the presence of deceased plaintiffs in the living plaintiff's case. This risk of prejudice to the defendants prevents consolidation of the living plaintiffs case with the case of the those plaintiffs that are deceased. This risk is obviated by the grouping plaintiff suggests of consolidating the cases of the deceased plaintiffs in one group, and trying the remaining plaintiffs cases individually.

Similarly Plaintiffs are not proposing to consolidate cases of plaintiffs suffering from lung cancer with those of plaintiff's suffering from Mesothelioma.

The cases of plaintiffs with exposure related to their service with the U.S. Navy, on ships and at shipyards, present unique facts related to the state of the art and defenses that are not common or relevant to the other non-U.S. Navy plaintiffs. (See Borman v. A.O. Smith Water Products Co., 2015 WL 7188355, 2015 N.Y. Slip Op.32109(U)[Sup. Ct. N.Y. 2015]). Consolidation of these cases with those of the other plaintiffs is not warranted, due to their unique facts and defenses. "Federal Law may be implicated in these case and it could prove to be confusing for the jury to sort out the varying elements of liability and damages governed by New York's negligence and product liability laws and those under Federal Maritime law." (see In re New York City Asbestos Litigation (John Capozio, etal, 22 Misc.3d 1109(A), 880 N.Y.S.2d 225 [Sup. Ct. N.Y. County 2009]). Plaintiffs are proposing that the cases with exposure related to their service with the U.S. Navy, such as Appleton and Howell be consolidated.

Judicial economy would be served by consolidating the actions of deceased plaintiffs, with mesothelioma and whose exposure was related to their service in the U.S. Navy and to similar products such as gaskets, insulation and packing on boilers, piping, pumps, valves and steam traps (Appleton and Howell). In these case grouping (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; (5) the plaintiffs were exposed during overlapping periods, and in a similar manner. The actions thus grouped meet the Malcolm criteria in that they have commonality, similarity in occupation and disease, similarity in the status of the plaintiff and overlapping exposure. These actions thus grouped have the same legal issues and similarity of facts, requiring consideration of the same or similar factual evidence. These commonalities favor consolidation which is in the interests of justice and judicial economy. Flaherty v. RCP Assocs., 208 A.D.2d 496 (N.Y. App. Div. 2d Dep't 1994); In Re New York City Asbestos Litigation 121 A.D.3d 230, 990 N.Y.S.2d 174, 2014 N.Y. Slip Op 05054 ([1st. Dept. 2014]).

The remaining plaintiffs cannot be consolidated into any group, either because they are alive and the group under which they would be consolidated is composed of deceased plaintiffs, or because they are deceased and the group under which they would be consolidated is composed of living plaintiffs; or because they suffer from lung cancer and the other plaintiffs in the group suffer from mesothelioma.

Accordingly, it is ORDERED that Plaintiffs' motion is granted to the extent of consolidating the actions for trial in the following cases in the following manner:

Group 1 — WILLIAM APPLETON (index No. 190289/16) and LEONARD K. HOWELL (Index No. 190208/16) both

deceased, with mesothelioma, with overlapping asbestos exposure from 1953 through 1978, whose exposure was through work on marine vessels and U.S. Navy ships, removing and replacing gaskets, insulation, packing on boilers, piping, pumps, valves and steam traps;

Group 2 — JOHN WATTS (Index No. 190281/16) deceased with Mesothelioma, to be tried individually;

Group 3 — JOHN KERTESZ (Index No. 190327/16) living with lung cancer, to be tried individually;

Group 4 — WILLIE B. VANDERHALL (Index No. 190131/16) deceased with Lung Cancer, to be tried individually; ORDERED that the cases are to be tried in the order that they are grouped giving preference to the cases of living plaintiffs, and it is further

ORDERED that the parties appear for a conference in Part 13 located at 71 Thomas Street, Room 210, New York, N.Y. 10013, on January 31, 2018 at 2:15 P.M.

Sources

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