Matter of New York City Asbestos Litig. v. Durez Corp. (2013)

Our plain-English summary of Matter of New York City Asbestos Litig. v. Durez Corp. (New York Supreme Court, May 15, 2013).

Four people, Frank Kestenbaum, Alberto Fernandez, Robert Spina and Carmen Wilson, brought asbestos personal injury and wrongful death actions in New York County. All four had mesothelioma, and three had died. Wilson worked as an electrician on construction sites. Fernandez worked as a mechanic and electrician at Con Edison powerhouses. Spina served in the Navy as a carpenter and engineer and later managed real estate in Florida. Kestenbaum worked as a fabricator at a plastic manufacturing facility. Their lawyer asked the court to try the four cases together under CPLR 602(a). The defendants opposed, arguing that the plaintiffs' jobs, exposures and defendants differed and that not all plaintiffs were deceased. The court granted the motion. It found common ground in the shared law firm, the shared terminal disease, limited remaining discovery, and similar work tasks in overlapping periods starting in the 1950s and 1960s. It said the factors need only show similarities, not identical jobs or periods, and that jury aids could prevent confusion among the four plaintiffs.

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: May 15, 2013
• Citation: 2013 NY Slip Op 31064(U)
• Docket: Docket No. 190421/11, Nos. 190399/11, 190321/11, 190143/11, Motion Seq. No. 1
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted the plaintiffs' motion to consolidate the Kestenbaum, Fernandez, Spina and Wilson asbestos cases for joint trial over the defendants' opposition.

What the court held. Under CPLR 602(a), a court may consolidate actions with common questions of law or fact for joint trial unless the opposing party shows prejudice to a substantial right. The Malcolm factors are weighed together and require only similarities, not identical occupations or exposure periods.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Frank Kestenbaum: mesothelioma; died

• Alberto Fernandez: mesothelioma; died

• Robert Spina: mesothelioma

• Carmen Wilson: mesothelioma; died

The defendants

• Durez Corporation (manufacturer)

Other decisions in this case

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

• Kestenbaum v. Durez Corp. (January 6, 2014). The court denied Union Carbide Corporation's motion for summary judgment, leaving the plaintiff's claims against it in place.

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.
• Adler v. Air & Liquid Sys. Corp. (New York Supreme Court, 2012). The trial court granted the plaintiffs' motion for a joint trial only in part, ordering the 22 in extremis cases tried in three disease-based groups (lung cancer, non-Navy mesothelioma, Navy mesothelioma) and severing Vega and Neuer for separate trials, over the defendants' objections to any joinder.

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.

MATTER OF NEW YORK CITY ASBESTOS LITIG. v. Durez Corp., 2013 NY Slip Op 31064 - NY: Supreme Court 2013 - Google … 2013 NY Slip Op 31064(U)

In Re: NEW YORK CITY ASBESTOS LITIGATION.

FRANK KESTENBAUM AND ALICE KESTENBAUM, ALBERTO FERNANDEZ, ROBERT SPINA,

CARMEN WILSON, Plaintiffs,

v.

DUREZ CORPORATION, ET AL., Defendants.

Docket No. 190421/11, Nos. 190399/11, 190321/11, 190143/11, Motion Seq. No. 1.

May 13, 2013.

Submission March 13, 2013.

Filed May 15, 2013.

Supreme Court, New York County.

DECISION AND ORDER

SALIANN SCARPULLA, Judge.

It is ordered that this motion is determined in accordance with the accompanying decision/order.

The four captioned matters involving the following plaintiffs: Frank Kestenbaum ("Kestenbaum"), Alberto Fernandez ("Fernandez"), Robert Spina ("Spina") and Carmen Wilson ("Wilson") (collectively "Plaintiffs") have been referred to this Court for trial. Three of the four plaintiffs are deceased. Plaintiffs' counsel moves by order to show cause pursuant to CPLR § 602(a) to consolidate these four personal injury/wrongful death actions for joint trial, claiming the existence of common questions of law and fact.

All four plaintiffs suffer/suffered from mesothelioma. Plaintiffs Kestenbaum, Wilson and Fernandez are deceased. Wilson's claimed asbestos exposure occurred while he was working as an electrician at residential and commercial construction worksites. Fernandez's alleged exposure occurred while he was working as a mechanic and electrician at Con Edison powerhouses and with steam system equipment. Spina's claimed exposure took place while he was serving in the United States Navy as a carpenter and engineer, working on pumps and steam system equipment, as well as additional exposure while managing real estate properties in Florida. Kestenbaum's claimed exposure to asbestos occurred while he was working as a fabricator at a plastic manufacturing facility, which included making the parts that were ultimately placed into electrical products.

In his affirmation, plaintiffs' counsel sets forth certain commonalities, which he argues warrant consolidation, including: (1) all of the plaintiffs suffer/suffered from mesothelioma, (2) all of the plaintiffs were largely exposed to asbestos through their work on or around electrical component equipment and/or steam system equipment, (3) each plaintiff was exposed to asbestos starting in the 1950s and 1960s, with the range of exposure from the 1950s through the 1980s; (4) the four cases share certain common defendants; (5) all plaintiffs are represented by the same counsel; and (6) all plaintiffs share similar expert witnesses.

Defendants oppose the motion, contending that the cases' dissimilarities outweigh their commonalities. Specific dissimilarities highlighted by some of the defendants are: (1) not all of the plaintiffs are deceased; (2) none of the four plaintiffs had similar occupations or similar types of exposure to asbestos; (3) Fernandez is the only plaintiff who alleges exposure from a powerhouse; (4) Spina is the only plaintiff who alleges exposure while serving in the U.S. Navy; (5) there are 58 defendants, with no defendants common to all four cases[1]; and (6) the alleged exposures took place over varying periods and lengths of time.

Discussion

MATTER OF NEW YORK CITY ASBESTOS LITIG. v. Durez Corp., 2013 NY Slip Op 31064 - NY: Supreme Court 2013 - Google … CPLR § 602(a) gives a trial court discretion to consolidate two or more actions for joint trial if they involve common questions of law or fact. Although great deference is to be accorded to the court's discretion, there is a preference for consolidation in the interest of judicial economy and ease of decision-making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right. Progressive Ins. Co. v. Vasquez, 10 A.D.3d 518, 519 (1st Dept. 2004); Chinatown Apartments, Inc. v. New York City Transit Authority, 100 A.D.2d 824 (1st Dept. 1984).

In determining whether consolidation would be appropriate, the Court should consider certain suggested factors: (1) common worksite; (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 were 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); see also Aikman v. Atex, Inc., 224 A.D.2d 180 (1st Dept. 1996). The Malcolm factors must be considered in their totality; no single factor is dispositive. In re New York City Asbestos Litig., 2012 NY Slip Op 32097(U) (Sup. Ct. N.Y. Co., August 8, 2012). Notwithstanding defendants' contentions to the contrary, this Court finds that certain commonalities exist, and certain issues that defendants collectively claim predominate over the commonalities will not defeat plaintiffs' application for a joint trial. First, plaintiffs are all represented by the same law firm. Second, although three of the plaintiffs have died from mesothelioma, their deaths will not prejudice the jury against the remaining living plaintiff because he is suffering from the same terminal illness. See Matter of New York City Asbestos Litig., 11 Misc. 3d 1063(A) (Sup. Ct. N.Y. Co., 2006). Third, there is not such extensive discovery remaining to warrant denying the order to show cause. Any outstanding discovery can be resolved within a short time frame and the court will make reasonable efforts to resolve any outstanding discovery concerns.

Fourth, the Malcolm factors do not require that plaintiffs share identical occupations or time periods of exposure, rather, just that there be similarities among the occupations and time periods of exposure. Here, the court finds that there are sufficient similarities in the manner in which the plaintiffs performed their respective tasks at various work sites during overlapping periods of time, all starting in the 1950s and 1960s.

The court notes that, "the use of suggested jury innovations such as juror note-taking and notebooks, extensive preliminary instructions, attorneys' interim commentary (short summations at different stages during the trial), juror questions, written copies of the special verdict sheets for jury use during summations and a written copy of the court's charge to the deliberating jury should avoid any confusion for the jury in sorting out the respective liabilities and damages attributable to each of the [four] plaintiffs." Matter of New York City Asbestos Litig., 11 Misc. 3d 1063(A) [*4] (Sup. Ct. N.Y. Co., 2006). Accordingly, it is hereby

ORDERED that the motion to consolidate the Kestenbaum, Fernandez, Spina and Wilson cases for joint trials is granted. This constitutes the decision and order of the Court.

[1] At oral argument on this motion on February 21, 2013, the amount of defendants was reduced to 41.

Sources

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