Nauheimer v. Union Carbide Corp. (In re New York City Asbestos Litigation, 2018)

Our plain-English summary of In re New York City Asbestos Litigation (New York Supreme Court, December 13, 2018).

Randi Nauheimer, suing individually and as executor of the estate of her husband Robert Nauheimer, brought an asbestos action against Union Carbide Corp. and other defendants in New York County. Plaintiffs moved to try that case together with the case of Michael Roqueta. Both men died in 2017 of pleural mesothelioma. The opinion says Nauheimer was exposed to asbestos in joint compound during residential renovation and construction work in the 1970s, and to brake linings. Roqueta was exposed to joint compound during renovation and building work from 1968 to 1977 and to boiler insulation and gaskets in the 1980s. Defendants argued the cases had different work sites, occupations, and products, would confuse a jury, and that the motion was procedurally defective and waived punitive damages. The court granted consolidation. It found the cases shared the same disease, deceased plaintiffs, counsel, similar exposure periods, and similar work with joint compound. It held one motion on notice to all affected parties was enough, and that moving to consolidate did not waive punitive damages, though they could not be pursued if the cases were joined.

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 13, 2018
• Citation: 2018 NY Slip Op 33220
• Docket: Docket No. 190098/17, Motion Seq. No. 004
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted plaintiffs' motion to consolidate the Nauheimer and Roqueta asbestos cases for a joint trial over the defendants' opposition, and placed them on the deceased extremis trial list.

What the court held. Under CPLR 602, consolidation of asbestos cases is favored where common questions exist and individual issues do not predominate, and the opposing party must show specific prejudice; one motion on notice to all affected parties suffices, and moving for consolidation does not waive a punitive damages claim.

Issues decided: Trial Procedure and Discovery, Punitive Damages.

The people and their exposure

• Robert William Nauheimer: pleural mesothelioma; died

• Michael Roqueta: pleural mesothelioma; died

Who	Work	Where	When	Products
Robert William Nauheimer	residential renovation and construction work with his father-in-law (construction)		1970-1977	joint compound, joint compound containing Calidria asbestos fibers
Robert William Nauheimer	automotive school student and occasional brake work on personal and family cars		1963-1980s	brakes, clutches and friction materials, asbestos-containing brake lining
Michael Roqueta	residential renovation and construction work (construction)		1968-1977	joint compound, joint compound containing Calidria asbestos fibers; DAP architectural grade caulking
Michael Roqueta	superintendent	boiler	early to mid 1980s	pipe and block insulation, gaskets and packing, boiler asbestos insulation and gaskets

The defendants

• Union Carbide Corp.

Mines named here

Asbestos mines this opinion is about. Each mine's page says who ran it, when it worked, and what it produced.

• Santa Rita mine, Joaquin Ridge near Coalinga, California

All asbestos mines

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.

2018 NY Slip Op 33220(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION.

RANDI NAUHEIMER, Individually and as Executor of the Estate of ROBERT WILLIAM NAUHEIMER,

Plaintiff(s),

v.

UNION CARBIDE CORP., etal., Defendants.

Docket No. 190098/17, Motion Seq. No. 004.

Motion December 12, 2018.

December 13, 2018.

Supreme Court, New York County.

MANUEL J. MENDEZ, Judge.

It is Ordered that Plaintiffs' motion to Consolidate for trial the Nauheimer and Roqueta cases is granted. Plaintiff's motion seeks to consolidate two asbestos related actions for trial. Plaintiff alleges 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 (1960-1980), [c] in a similar manner (construction and home renovation work), (d) all coming from essential similar sources (joint compound), 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, 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, and similar time of exposure. It is alleged that the plaintiffs in these actions for which consolidation is sought, were exposed to asbestos in the following manner:

ROBERT WILLIAM NAUHEIMER:

Died on June 4, 2017 as a result of Pleural mesothelioma. Was exposed to asbestos from the 1960s through the 1980s. Mr. Nauheimer was exposed to asbestos in joint compound containing Calidria-asbestos fibers while performing residential renovation and construction work from 1970-1977 when he worked with is father-in-law in the residential construction trade, and when he did renovations to his home. He was exposed to asbestos from asbestos-containing joint compound that he, and coworkers in his presence, applied to sheetrock walls and sanded. He was also exposed to asbestos-containing brake lining from 1963 through the 1980s, while he attended automotive school from 1963 to 1964, and from occasional brake work he performed on personal and family member automobiles.

MICHAEL ROQUETA:

Died on April 3, 2017 as a result of Pleural mesothelioma. Was exposed to asbestos from the 1960s through the 1980s. Mr. Roqueta was exposed to asbestos in joint compound containing Calidria-asbestos fibers while performing residential renovation and construction work from 1968 through 1977. In 1968 he used joint compound to complete limited renovation work at his home. From 1968 through 1972 he worked with his father who was the superintendent of a three-building apartment complex. As part of that work he performed numerous jobs that included applying and sanding joint compound. He also used asbestos-containing DAP architectural grade caulking. From 1973 through 1975 he worked with a painter and spent approximately one third of his time applying and sanding joint compound. In 1976 he performed a large amount of

joint compound work while renovating a 33 story apartment building in Forida. From the early to mid 1980s, while employed as a superintendent, he was exposed to asbestos from the boiler (asbestos insulation and gaskets).

Plaintiff requests that the court order the cases consolidated.

The defendants oppose the motion 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 plaintiffs claim they were exposed to are too diverse and numerous thereby resulting in juror confusion; (3) There is no common defendant in these cases, other than Union Carbide; (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.

Defendants also argue that the motion should be denied because it is procedurally defective as the plaintiff only made a motion in the Nauhemimer case; therefore, the court cannot order joinder or consolidation with the Roqueta case because it is not before the court. Finally the defendants argue that the plaintiffs by making the motion waived their punitive damages claim.

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 or joinder of actions for trial, 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]).

Judicial economy would be served by joining for trial the actions of deceased plaintiffs with pleural mesothelioma and whose exposure was related to their work doing residential renovation or construction work using similar products such as joint compound during similar periods of time. In these cases consolidation or joinder is appropriate because (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 are deceased; (5) the plaintiffs were exposed during the same periods, and in a similar manner. The actions thus consolidated meet the Malcolm criteria in that they have commonality, similarity in occupation and disease, similarity in the status of the plaintiff and similarity in the period of exposure. These actions thus consolidated 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 motion to consolidate the Nauheimer case with the Roqueta case is properly before the court. CPLR § 602 allows the court, upon motion, to order a joint trial of any or all matters in issue when actions involving common questions of law or fact are pending before a court (See CPLR § 602). If the actions are pending in different counties the motion may be made in any of those counties by any party to any one of the actions (Gomez v. Jersey Coast Egg Producers, Inc., 186 A.D.2d 629,

588 N.Y.S.2d 589 [2nd. Dept. 1992]) as long as the motion is on notice to all the parties who would be affected by it. The court cannot make a Sua Sponte order of joinder or consolidation (see McKinney's Consolidated Laws of New York Annotated Section C602:3).

Defendants argue that plaintiff had to make two motions-one in each action-to obtain the remedy of joinder or consolidation. That is not what the statute requires or what the commentaries state. The statute requires that the party seeking consolidation or joinder make a motion, so the court cannot act to join or consolidate Sua Sponte. The commentary states that the motion can be made in either action the moving party seeks to join or consolidate, on notice to all parties affected. If there was a requirement that a motion be made in every action the party seeks to join or consolidate then a party seeking to consolidate actions pending in different counties would need to make separate motions in each county with the possibility of conflicting results. Logic dictates that the way to proceed is as stated in the commentary, one motion on notice to all affected parties.

The plaintiff herein made one motion to join these cases for trial and gave notice to all affected parties, therefore this motion is properly before the court.

Finally, after reading the CMO and the decision accompanying the CMO, this court finds that a plaintiff does not waive asserting a punitive damages claim by making a joinder or consolidation motion. The decision on the joinder motion will provide the defendants final definitive notice concerning whether a plaintiff will be proceeding with a punitive damages claim. If the joinder or consolidation motion is granted plaintiff cannot proceed with the punitive damages claim. The opposite would occur if joinder or consolidation is denied.

Accordingly, it is ORDERED that Plaintiffs' motion is granted, and it is further

ORDERED that the Robert William Nauheimer case, index number 190098/2017 is to be tried jointly with the Michael Roqueta case, index number 190040/2017, and it is further

ORDERED that the joined cases be placed on the deceased extremis trial list.

Sources

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