Fersch v. Volkswagen Group of America (Matter of New York City Asbestos Litig., 2013)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, November 26, 2013).

Three plaintiffs in New York City asbestos litigation, Juni, Fersch and Middleton, sued a group of defendants including Volkswagen Group of America, Inc. The opinion says all three worked as mechanics and were exposed to asbestos products for vehicles over substantially overlapping periods covering 40 years. One has mesothelioma and the other two have lung cancer. The plaintiffs asked the trial court to consolidate their cases for trial under CPLR 602, and the court granted the motion. Volkswagen appealed. The First Department affirmed. It found that the three plaintiffs shared the same lawyers and that each case was ready for trial. It said the trial court did not abuse its discretion. The differences between the cases, including the different diseases and others Volkswagen pointed out, did not outweigh the substantial overlap of factual and legal issues. They also did not suggest prejudice to Volkswagen's right to a fair trial. The opinion does not name the specific products or sites involved.

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, Appellate Division, 1st Dept.
• Decided: November 26, 2013
• Citation: 2013 NY Slip Op 7854
• Stage: Appeal from other
• State: New York

Outcome. The First Department affirmed the trial court's order consolidating the Juni, Fersch and Middleton cases for trial, ruling against Volkswagen Group of America, Inc., which had appealed.

What the court held. A trial court does not abuse its discretion by consolidating asbestos cases for trial where the plaintiffs worked in similar jobs over overlapping periods, share counsel and are trial ready, even if their diseases differ.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Karl Fersch: lung cancer

The defendants

• Volkswagen Group of America, Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Matter of New York City Asbestos Litig. (March 23, 1993). The Appellate Division affirmed the trial court's rulings: it upheld the preclusion of the defendant's relitigation of a point decided in prior litigation, the five additurs, and the exclusion of evidence about the cause of Sutton's death, so the defendant lost.
• Matter of New York City Asbestos Litig. (October 2, 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.
• Matter of New York City Asbestos Litig. (May 28, 2013). The First Department reversed the judgment awarding plaintiffs damages against the Port Authority, vacated it, denied plaintiffs' default judgment motion, and granted the Port Authority's motion to dismiss for lack of subject matter jurisdiction.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (July 3, 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.
• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (November 20, 2014). The appellate court dismissed the claims about Georgia-Pacific's wallboards because it never made asbestos wallboard, but otherwise affirmed the denial of Georgia-Pacific's summary judgment motion, so plaintiffs' joint compound claims proceed.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 15, 2015). On remittitur from the Court of Appeals, the First Department affirmed the $2,500,000 judgment for plaintiffs against the Port Authority, which had defaulted by not appearing at trial, without an inquest on damages.
• South v. Chevron Corp. (Matter of New York City Asbestos Litig.) (August 29, 2017). The Appellate Division affirmed the denial of Texaco's summary judgment motion, so the widow's Jones Act mesothelioma claims against Texaco (sued as Chevron's alleged predecessor) continued; Texaco lost, with one justice dissenting.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (October 5, 2017). The First Department affirmed the judgment entered after a jury trial awarding plaintiff Walter Miller $5 million for past and $4 million for future pain and suffering against Hennessy Industries, which lost its appeal.
• Matter of New York City Asbestos Litig. (June 20, 2019). The Appellate Division reversed the judgment entered on a jury verdict for plaintiff, granted Whittaker Clark & Daniels' motion for judgment notwithstanding the verdict, and dismissed the complaint against it.
• Hildebrand v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 21, 2021). The First Department affirmed the denial of the Port Authority's summary judgment motion on the Labor Law § 200 and common-law negligence claims, so plaintiff Seval Morgan's claims against the Port Authority continued.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (July 19, 2022). The First Department reversed the judgment for plaintiffs against Johnson & Johnson and directed entry of judgment for J&J, because plaintiffs' expert proof of causation was legally insufficient; the appeal from the damages-reduction order was dismissed as subsumed.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (February 27, 2024). The First Department affirmed the denial of Jenkins Bros.' motion for JNOV, a new trial, or remittitur, leaving plaintiff McWilliams' $13,000,000 past and $10,000,000 future pain and suffering verdict intact.
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (March 13, 2025). The First Department affirmed the jury-verdict judgment for plaintiffs Romeo and Rosa Maffei against Burnham LLC, including compensatory, consortium and punitive awards, and dismissed the appeal from the post-trial order as subsumed in the judgment.

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.

2013 NY Slip Op 07854

IN RE NEW YORK CITY ASBESTOS LITIGATION,

ESTER BARUCH, ET AL., Plaintiffs,

v.

BAXTER HEALTHCARE CORPORATION, ET AL., Defendants,

KARL FERSCH, ET AL., Plaintiffs-Respondents,

v.

AMCHEM PRODUCTS INC., ET AL., Defendants,

VOLKSWAGEN GROUP OF AMERICA, INC., Defendant-Appellant.

11176N, 190468/12, 190315/12, 190367/12.

Decided November 26, 2013.

Appellate Division of the Supreme Court of New York, First Department.

HERZFELD & RUBIN, P.C., NEW YORK (MIRIAM SKOLNIK OF COUNSEL), for Appellant.

WEITZ & LUXENBERG, P.C., NEW YORK (ALANI GOLANSKI OF COUNSEL), for respondents.

Before: Mazzarelli, J.P., Acosta, Moskowitz, Manzanet-Daniels, Gische, JJ.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 22, 2013, which, to the extent appealed from, granted plaintiffs' motion pursuant to CPLR 602 to consolidate to the extent of consolidating the cases of Juni, Fersch and Middleton for trial, unanimously affirmed, without costs.

Given that all three plaintiffs were exposed to asbestos products for vehicles in their work as mechanics over a substantially overlapping period of 40 years, and each is represented by the same counsel, and each case is trial ready, it cannot be said that the IAS court abused its discretion in ordering the three cases consolidated for trial (see Malcolm v National Gypsum Co., 995 F2d 346, 350-352 [2d Cir 1993]). While there are some differences, including that one plaintiff has mesothelioma while the other two have lung cancer, and other differences pointed out by defendant, this does not outweigh the substantial overlap of factual and legal issues, or suggest the prejudice of defendant's right to a fair trial (see Matter of New York City Asbestos Litig., 2011 NY Slip Op 31210[U], **5-7 [Sup Ct, NY County 2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT.

Sources

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