Dietz v. Fulton Boilerworks (Matter of New York City Asbestos Litig., 2010)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, June 10, 2010).

Four asbestos cases were transferred to the New York County Supreme Court for trial: Samuel Cole, Arthur Dietz, Thomas Dosch and Francis Pearce. Three of the four plaintiffs had died. Their shared law firm asked the court to consolidate the one personal injury action and three wrongful death actions for a joint trial. No one opposed. Dietz died of mesothelioma and Pearce of colon cancer. Counsel said the men were not exposed at one common work site but encountered the same kind of asbestos-containing insulation and other materials in the Navy and Navy shipyards, commercial sites and residential sites. They said both worked in similar construction trades as bystanders, with overlapping exposure periods from the 1950s through the 1970s. By the hearing, the Cole and Dosch cases had settled. The court weighed the factors for joint trials and found that the commonalities outweighed the individual differences, noting that the two men's diseases differed but had a common cause in asbestos exposure. It consolidated the Dietz and Pearce actions for a joint trial set for July 26, 2010.

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: June 10, 2010
• Citation: 2010 NY Slip Op 31476
• Docket: No. 105736/99, Mot. Seq. No. 001
• 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• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.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 Dietz and Pearce actions for a joint trial against the remaining defendants; the Cole and Dosch actions had settled.

What the court held. Under CPLR 602(a), actions with common questions of law and fact may be consolidated for joint trial, and the court weighs factors such as work site, occupation, time of exposure, disease type, counsel and discovery status. Here the commonalities predominated over individual differences.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Arthur Dietz: mesothelioma; died

• Francis Pearce: colon cancer; died

The defendants

• Fulton Boilerworks, Inc.
• Mario and DiBono (contractor)
• A.C. & S., 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.

2010 NY Slip Op 31476(U)

In Re: NEW YORK CITY ASBESTOS LITIGATION, etal.

SAMUEL COLE (Index No. 107729/00) ARTHUR DIETZ (Index No. 107736/99) THOMAS DOSCH

(Index No. 102479/00) FRANCIS PEARCE (Index No. 107198/99) Plaintiffs,

v.

A.C. & S., INC., ET AL., Defendants.

No. 105736/99, Mot. Seq. No. 001.

June 10, 2010.

Supreme Court, New York County.

DECISION AND ORDER

MARTIN SHULMAN, Judge.

The four captioned asbestos cases involving the following plaintiffs: Samuel Cole ("Cole"), Arthur Dietz ("Dietz"), Thomas Dosch ("Dosch") and Francis Pearce ("Pearce")(collectively, "Plaintiffs"), have been transferred to this court pursuant to the NYCAL Amended Case Management Order for trial. Three of the four Plaintiffs are deceased.

Pursuant to CPLR §602(a), Plaintiffs' counsel moves by order to show cause ("OSC") to consolidate the one personal injury action and three wrongful death actions for joint trial claiming the existence of common questions of law and fact.[1] No opposition to the OSC has been filed.

In support of Plaintiffs' OSC, counsel's supporting affirmation advances what appear to be obvious commonalities, i.e., Weitz and Luxenberg jointly represent Plaintiffs and decedent Dietz succumbed to mesothelioma, whereas decedent Pearce succumbed to colon cancer. Among other common issues/factors which Plaintiffs claim predominate over individual ones are: Plaintiffs, while admittedly not exposed at one common work site, were exposed to the same type of asbestos containing insulation or other materials ("ACM") in the Navy and/or Navy shipyards, comparable commercial work sites and residential work sites; Plaintiffs were engaged in similar occupations in the construction trades and were exposed to ACM as end-users/bystanders; while Dietz had ACM exposures in the 1940s, nonetheless, both Plaintiffs had such exposures from the 1950s through the 1970s; their respective exposure histories temporally overlap and, in turn, will result in the same state-of-the-art, medical and expert evidentiary overlap at a joint trial; at trial, each respective defendant will seek to prove liability of any settling tortfeasor and one or more absentee bankrupt tortfeasors to mitigate their own liability under CPLR Article 16 and this proof via documentary and testimonial evidence will provide for considerable overlap; consolidating these two decedents' cases will not prejudice any defendant; and finally, these cases are ready for trial.

CPLR §602(a) permits a court to consolidate two or more actions for joint trials if they involve common questions of law and fact. "Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the 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 673 (1st Dept., 1984). Joint trials will also foster judicial economy, quicken the disposition of cases (City of Rochester v. Levin, 57 A.D.2d 700, 395 N.Y.S.2d 773 [4th Dept., 1977]) and potentially encourage settlements (In re New York City Asbestos Litigation [Brooklyn Naval Shipyard Cases]), 188 A.D.2d 214, 225, 593 N.Y.S.2d 43, 50 [1st Dept.], aff'd 82 N.Y.2d 821, 605 N.Y.S.2d 3 [1993]).

In exercising discretion to consolidate these two actions, the court should consider certain suggested factors in determining whether joint trials here are appropriate, to wit: "(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; (7) whether all plaintiffs are represented by the same counsel; and (8) type of cancer alleged." Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352 (2nd Cir., 1993). After a review of the OSC and supporting papers, this court finds that commonalities between Plaintiffs predominate over any perceived individual factors.[2] Accordingly, it is hereby

ORDERED that Plaintiffs' OSC is granted to the extent that the Dietz and Pearce actions are consolidated for a joint trial. The parties are directed to appear on July 26, 2010 at 9:30 a.m. at 60 Centre Street, New York, New York, at the Central Jury Room 452 for jury selection and the ensuing trial forthwith.

This constitutes this court's Decision and Order. Courtesy copies of same have been provided to counsel for the parties. [1] On the return date of the consolidation OSC, Plaintiffs' counsel advised that the Cole and Dosch actions have settled and that only one defendant, Fulton Boilerworks, Inc., remains in the Dietz action and another co-defendant Mario and DiBono remains in the Pearce action. [2] Notably, Plaintiffs do not share a common disease (Dietz suffered from mesothelioma and Pearce suffered from colon cancer). However, the etiology of their respective cancers is a common one due to their exposure to ACM.

Sources

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