Christy v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation, 2019)

Our plain-English summary of In re New York City Asbestos Litigation (New York Supreme Court, January 22, 2019).

This order from the New York County Supreme Court arose in the New York City asbestos litigation, in a group of 22 cases called the FIFO cluster. The plaintiffs, including Frederick and Catherine Christy, asked to consolidate 11 of the cases into five groups for trial. The cases involved workers with lung cancer, either living or deceased, who allegedly were exposed to asbestos as plumbers, steam fitters, mechanics, construction workers and Navy personnel. The alleged sources included boilers, pipe covering, gaskets, pumps, valves, joint compound and floor tile. The defendants opposed. They argued that the plaintiffs lacked a common work site, occupation, defendant and period of exposure, and that a jury would be confused. The court said consolidation is favored where common questions exist, and that the party opposing it must show specific prejudice. Applying the Malcolm factors, it found enough similarity in disease, occupation, plaintiff status and overlapping exposure. It consolidated four pairs of cases for trial: Christy and Colonna, Foley and Lucenti, Donovan and Nightengale, and Scalfani and Stanley. The remaining FIFO cases were to be tried individually, and a pre-trial conference was set for February 20, 2019.

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: January 22, 2019
• Citation: 2019 NY Slip Op 30192
• Docket: Docket No. 190116/15, Motion Seq. No. 004
• Stage: Other
• State: New York

Outcome. The court granted the plaintiffs' motion in part, consolidating eight lung cancer cases into four pairs for trial and ordering the other FIFO cases tried individually over the defendants' opposition.

What the court held. Under CPLR 602, consolidation is within the court's discretion and favored where common questions exist, unless the opposing party shows specific prejudice. Not every Malcolm factor must be present, so long as individual issues do not predominate.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Frederick Christy: lung cancer

• Giovanny Colonna: lung cancer, pleural plaques and thickening

• Wade Lewis: lung cancer

• John Marmara: lung cancer

• Robert Foley: lung cancer; died

• Joseph Lucenti: lung cancer; died

• Salvatore Sessa: lung cancer; died

• Don Donovan: lung cancer; died

• Clarence Nightengale: lung cancer; died

• Salvatore Scalfani: lung cancer; died

• Richard Stanley: lung cancer; died

Who	Work	Where	When	Products
Frederick Christy	plumber and steam fitter		1954-1994	pipe and block insulation, gaskets and packing, insulating cement, boilers, pipe covering, gaskets, pumps, valves, furnace cement
Frederick Christy	plumber and steam fitter (power plants and utilities); worked near others using it	Indian point powerhouse	1954-1994	joint compound, sprayed asbestos, sheetrock, joint compound, fireproofing spray
Giovanny Colonna	plumber		1972-2002	gaskets and packing, pipe and block insulation, asbestos textiles, boilers, pumps, valves, packing, gaskets, pipe covering, rope, insulation
Wade Lewis	auto mechanic, steel worker, U.S. Navy and laborer		1948-1992	refractory products, firebrick
John Marmara	auto mechanic (shipyards and maritime work)	Bethlehem shipyard	1962-63	gaskets and packing, brakes, clutches and friction materials, insulating cement, gaskets, brakes, clutches, cement
Robert Foley	steam fitter (power plants and utilities)	various powerhouses and the World Trade Center, New York, New York	1954-1991	pipe and block insulation, insulating cement, refractory products, joint compound, floor tile, gaskets and packing, pipe covering, cement, brick, wallboard, joint compound, floor tile, gaskets, packing
Joseph Lucenti	journeyman plumber (power plants and utilities)	powerhouses and construction sites	1954-1981	joint compound, floor tile, gaskets and packing, joint compound, floor tiles, sheetrock, pipes, gaskets, valves, pumps, boilers
Salvatore Sessa	construction worker (construction)		1970	joint compound, floor tile, insulating cement, joint compound, tiles, caulking, cement insulation
Don Donovan	U.S. Navy; military service		1964-79	asbestos-reinforced plastics, gaskets and packing, batteries, motor controls, pumps, valves, switch gears, circuit breakers
Clarence Nightengale	U.S. Navy; military service		1967-1971	pipe and block insulation, gaskets and packing, insulating cement, insulation on boilers, turbines, pumps, valves, cement, gaskets, packing
Salvatore Scalfani	auto mechanic, shipfitter, laborer and plumber		1936-1970	brakes, clutches and friction materials, pipe and block insulation, joint compound, brakes, boilers with asbestos insulation, pipe insulation, valves, generators, turbines, sheetrock
Richard Stanley	U.S. Navy shipyard worker (shipyards and maritime work); military service	U.S. Navy shipyard	1942-1955	pipe and block insulation, insulating cement, refractory products, joint compound, floor tile, gaskets and packing, asbestos textiles, insulation, pipe covering, cement, brick, wall board, joint compound, floor tiles, gaskets, packing, rope

The defendants

• A.O. Smith Water Products Co., et al. (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.
• 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.

2019 NY Slip Op 30192(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION.

This Document Relates to: FREDERICK CHRISTY and CATHERINE CHRISTY, Plaintiff(s),

v.

A.O. SMITH WATER PRODUCTS CO., etal., Defendants.

Docket No. 190116/15, Motion Seq. No. 004.

Motion January 9, 2019.

January 22, 2019.

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 FIFO cases in the following manner:

1 — FREDERICK CHRISTY (Index No. 190116/15) and GIOVANNY COLONNA (Index No. 102153/03) living with lung cancer;

2 — ROBERT FOLEY (Index No. 190475/12) and JOSEPH LUCENTI (Index No. 104390/05) deceased from lung cancer; 3 — DON DONOVAN (Index No. 190046/2015) and CLARENCE NIGHTENGALE (Index No. 190249/14) deceased lung cancer;

4 — SALVATORE SCALFANI (Index No. 190088/14) and RICHARD STANLEY (Index No. 190440/12).

The remaining cases on this transfer order dated June 26, 2018 are to be tried individually.

Of the Twenty two (22) cases in this FIFO Cluster of cases Plaintiffs' motion seeks to consolidate 11 cases-of these Asbestos related actions—for trial into five (5) groups. 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, and (e) all resulting in the same damages (mesothelioma or lung cancer); (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 some 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:

FREDERICK CHRISTY:

Living with lung cancer. Exposed 1954-1994. Exposed from work as plumber and steam fitter. Exposed to boilers, pipe covering, gaskets, pumps, valves and furnace cement. When other trades working around him worked with sheetrock, joint compound, and fireproofing spray at the Indian point powerhouse.

GIOVANNY COLONNA:

Living with pleural disease and lung cancer. Exposed 1972-2002. Exposed from work as a plumber. Exposed to asbestos containing boilers, pumps, valves, packing, gaskets, pipe covering, rope and insulation.

WADE LEWIS:

Living with lung cancer. Exposed from 1948-1992. Exposed from work as an auto mechanic, steel worker, in U.S. Navy and laborer. Exposed to asbestos containing firebrick. When other trades used asbestos containing pipe covering, cement, gaskets, floor tiles, ceiling tiles, boilers, furnaces, valves, generators, pumps, turbines, compressors, cranes, brakes, ovens, ladles, gloves and aprons. As a laborer installed wall board, used joint compound and worked with floor tiles. JOHN MARMARA:

Living with lung cancer. Exposed from 1962-63. Exposed from work as an auto mechanic and at the Bethlehem shipyard. Exposed to gaskets, brakes, clutches and asbestos containing cement.

ROBERT FOLEY:

Deceased lung cancer. Exposed 1954-1991. Exposed from work as a steam fitter. Worked at various powerhouses and the World Trade Center. Exposed to asbestos containing pipe covering, cement, brick, wallboard, joint compound, floor tile, gaskets, packing, rope, engines, pumps, boilers, pipes, turbines, compressors, air conditioning equipment and generators. JOSEPH LUCENTI:

Deceased lung cancer. Exposed 1954-1981. Exposed from work as a journeyman plumber at powerhouses and construction sites. Exposed to asbestos containing joint compound, floor tiles, sheetrock, pipes, gaskets, valves, pumps and boilers.

SALVATORE SESSA:

Deceased lung cancer. Exposed in 1970. Exposed from work as a construction worker. Exposed to asbestos containing joint compound, pumps, boilers, electrical equipment, tiles, caulking and cement insulation.

DON DONOVAN:

Deceased lung cancer. Exposed 1964-79. Exposed from work in the U.S. Navy. Exposed to asbestos containing batteries, motor controls, pumps, valves, air conditioning equipment, electrical equipment, control panels, switch gears and circuit breakers.

CLARENCE NIGHTENGALE:

Deceased lung cancer. Exposed 1967-1971. Exposed from work in the U.S. Navy. Exposed to asbestos containing insulation on boilers, turbines, pumps, valves, cement, gaskets, packing, boilers and pipes.

SALVATORE SCALFANI:

Deceased lung cancer. Exposed 1936-1970. Exposed from work as an auto mechanic, shipfitter, laborer and plumber. Exposed to asbestos containing brakes, boilers with asbestos insulation, pipe insulation, valves, generators, turbines, and sheetrock.

RICHARD STANLEY:

Deceased lung cancer. Exposed 1942-1955. Exposed from work in U.S. Navy shipyard. Exposed to asbestos containing insulation, pipe covering, cement, brick, wall board, joint compound, floor tiles, gaskets, packing, rope, engines, pumps, boilers, pipes, turbines, compressors and generators.

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

1: Christy and Colonna;

2: Lewis and Marmara;

3: Foley, Lucenti and Sessa;

4: Donovan and Nightengale;

5: Scalfani and Stanley; and that the remaining eleven cases be tried individually.

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]).

Judicial economy would be served by consolidating the actions of living plaintiffs with lung cancer and whose exposure was from work in similar occupations and related to similar products such as boilers, pipe covering, gaskets, pumps, valves, furnace cement and fireproofing spray whose exposure was from the 1950's to 2002 (Christy and Colonna); consolidating the actions of deceased plaintiffs from lung cancer whose exposure was from work in similar occupations and related to similar products such as asbestos insulation, pumps, valves, boilers, joint compound, floor tiles, and whose exposure was from the 1950's through the 1990's (Foley and Lucenti); consolidating the actions of deceased plaintiffs from lung cancer, whose exposure was from work in similar occupations and related to similar products such as asbestos containing valves, gaskets, pipes, cement, insulation, electrical equipment, control panels, switchgear, cirucit breakers, turbines, and whose exposure was from the 1960's to 1979 (Donovan and Nightengale); consolidating the actions of deceased plaintiffs from lung cancer, whose exposure was from work in similar occupations and related to similar products such as asbestos containing boilers, valves, rope, brake pads, joint compound, gaskets, pipes, packing, insulation, generators, turbines and compressors, and whose exposure was from the 1930's through 1970 (Scalfani and Stanley).

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 or living; (5) the plaintiffs were exposed during overlapping 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 overlapping 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]).

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:

1 — FREDERICK CHRISTY (Index No. 190116/15) and GIOVANNY COLONNA (Index No. 102153/03) living with lung cancer;

2 — ROBERT FOLEY (Index No. 190475/12) and JOSEPH LUCENTI (Index No. 104390/05) deceased from lung cancer; 3 — DON DONOVAN (Index No. 190046/2015) and CLARENCE NIGHTENGALE (Index No. 190249/14) deceased lung cancer;

4 — SALVATORE SCALFANI (Index No. 190088/14) and RICHARD STANLEY (Index No. 190440/12).

ORDERED that the remaining FIFO cases listed in this transfer order dated June 26, 2018 are to be tried individually, and it is further

ORDERED that the parties appear for a final pre-trial conference on the 22 FIFO actions in this transfer order, in Part 13 located at 60 Centre Street, Room 442 New York, N.Y. 10007, on February 20, 2019 at 2:15 P.M.

Sources

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