Dietrich v. A.O. Smith Water Prods. Co. (Matter of New York City Asbestos Litigation, 2013)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Supreme Court, October 21, 2013).

Ten plaintiffs, or their estates, brought asbestos personal injury suits in New York County against A.O. Smith Water Products Co. and other defendants. Seven plaintiffs had mesothelioma and three had lung cancer, and all had died. Plaintiffs asked the court to try the cases in two groups. Their alleged exposures came from insulation, gaskets, packing and similar products. The work included shipyards, powerhouses and industrial sites, Army electrical work, and auto and home repair. Defendants opposed. The court applied CPLR 602(a) and the Malcolm factors, such as worksite, occupation, time of exposure, disease and counsel. It found enough common ground among the three lung cancer plaintiffs, who alleged similar products and were represented by the same firm, and ordered them tried together. It split the mesothelioma plaintiffs. Dietrich and Yetter worked at shipyards and McDonald served in the Army, so their cases might involve federal government contractor defenses. Those three were ordered tried separately from the others.

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: October 21, 2013
• Citation: 2013 NY Slip Op 32535
• Docket: Docket Nos. 102900-2004, 115214-2003, 100867-2004, 100988-2004, 101357-2004, 116830-2003, 111778-2004, 104850-
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted plaintiffs' motion to consolidate in part, ordering joint trials of the three lung cancer plaintiffs, of a group of mesothelioma plaintiffs, and of a separate group of Dietrich, McDonald and Yetter, rather than the two groups plaintiffs requested.

What the court held. Asbestos cases may be joined for trial under CPLR 602(a) where the Malcolm factors show enough similarity among plaintiffs, who need not have identical occupations, worksites or exposure periods, and the opponents show no substantial prejudice. Cases that may involve federal government contractor defenses the others do not may be tried separately.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Charles Dietrich: mesothelioma; died

• Robert D. Freeman: mesothelioma; died

• Angel Lamberty: mesothelioma; died

• Francis Marino: mesothelioma; died

• Robert McDonald: mesothelioma; died

• Theodore Pendergast: mesothelioma; died

• Ronald Yetter: mesothelioma; died

• William N. Barton: lung cancer; died

• Patrick W. Lowden, Jr.: lung cancer; died

• Francis J. Smith: lung cancer; died

Who	Work	Where	When	Products
Charles Dietrich	boiler worker (shipyards and maritime work)	Bethlehem Shipyard, Brooklyn, New York	1940s	pipe and block insulation
Robert D. Freeman	technician and engineer (power plants and utilities)	various industrial sites and powerhouses	1970s-1990s	gaskets and packing, pipe and block insulation
Angel Lamberty		Channel Master Corp., Ellenville, New York		gaskets and packing, pipe and block insulation
Angel Lamberty		Otisville Correctional Facility; Eastern Correctional Facility, Otisville; Napanoch, New York		gaskets and packing, pipe and block insulation
Francis Marino	electrician, furnace worker and custodian (shipyards and maritime work)	various industrial sites, powerhouses and shipyards, Brooklyn, New York	1940s-1970s	pipe and block insulation
Robert McDonald	electrician in the United States Army; military service	United States Army	1950s	asbestos-reinforced plastics, pipe and block insulation, Bakelite
Theodore Pendergast	steamfitter and auto mechanic	various industrial and commercial sites; home renovations	1950s-1970s	gaskets and packing, floor tile, brakes, clutches and friction materials, pipe and block insulation
Ronald Yetter	machinist mate (shipyards and maritime work)	Brooklyn Navy Yard, Brooklyn, New York	1950s-1970s	gaskets and packing, refractory products, pipe and block insulation, firebrick
William N. Barton	operating engineer (power plants and utilities)	various industrial sites and powerhouses, New York	1950s-1990s	gaskets and packing, pipe and block insulation
Patrick W. Lowden, Jr.	carpenter and laborer (construction)	various sites	1960s-1990s	gaskets and packing, pipe and block insulation, asbestos textiles
Francis J. Smith	electrician (power plants and utilities)	various commercial, industrial and powerhouse sites; home renovations	1950s	gaskets and packing, floor tile

The defendants

• A.O. Smith Water Prods. 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.

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 32535(U)

IN RE NEW YORK CITY ASBESTOS LITIGATION.

WILLIAM N. BARTON CHARLES W. DIETRICH ROBERT D. FREEMAN ANGEL LAMBERTY PATRICK

W. LOWDEN FRANCIS MARINO ROBERT C. McDONALD THEODORE PENDERGAST FRANCIS J.

SMITH RONALD B. YETTER, Plaintiffs,

v.

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

Docket Nos. 102900-2004, 115214-2003, 100867-2004, 100988-2004, 101357-2004, 116830-2003, 111778-2004, 104850-2004, 118280-2003, 116648-2003, Motion Seq. No. 001.

October 17, 2013.

Filed October 21, 2013.

Supreme Court, New York County.

DECISION AND ORDER

GEORGE J. SILVER, Judge.

It is ordered that this motion Order to Show Cause Decided in Accordance with the Annexed Decision Order. The above captioned ten matters are asbestos-related personal injury actions. The plaintiffs in above captioned actions are moving by order to show to consolidate the cases into two groups, one consisting of plaintiffs Dietrich, Lamberty, Marino, McDonald, Pendergats and Yetter (the mesothelioma group) and one consisting of plaintiffs Barton, Lowden and Smith (the lung cancer group) for joint trial. Defendants oppose the motion and raise common and individual arguments against joint trial.

The Mesothelioma Group

1. Charles Dietrich

According to plaintiffs' counsel, Charles Dietrich was exposed to asbestos while working as boiler worker at the Bethlehem Shipyard in Brooklyn, New York during the 1940s. Specifically, Dietrich was exposed to asbestos-containing insulation used in connection with boilers, pipes, pumps and turbines. Dietrich was diagnosed with mesothelioma on April 25, 2003 and died on June 25, 2003.

2. Robert D. Freeman

Freeman was allegedly exposed to asbestos while working technician and engineer at various industrial sites and powerhouses from the 1970s until the 1990s. Freeman was allegedly exposed to asbestos while working with gaskets, packing, blankets and insulation used in connection with boilers, pipes, pumps, turbines and valves. Freeman was diagnosed with mesothelioma on May 27, 2003 and died on June 8, 2005.

3. Angel Lamberty

Lamberty was allegedly exposed to asbestos-containing material while working at Channel Master Corp. in Ellenville New York, Otisville Correctional Faciluty in Otisville, New York and Eastern Correctional Facility in Napanoch, New York. According to plaintiffs' counsel, Lamberty was exposed to asbestos-containing gaskets; packing and insulation used in

connection with boilers, pipes and pumps. Lamberty was diagnosed with mesothelioma on March 10, 2003 and died on August 10, 2004.

4. Francis Marino

Marino was allegedly exposed to asbestos-containing insulation used in connection with boiler, pipes, pumps and turbines while working as an electrician, furnace worker and custodian at various industrial sites, powerhouses and shipyards in Brooklyn, New York from the 1940s until the 1970s. Marino was diagnosed with mesothelioma on June 30, 2003 and died on March 5, 2004.

5. Robert McDonald

Plaintiffs' counsel alleges that McDonald was exposed to asbestos-containing material while serving as an electrician in the United States Army during the 1950s. McDonald was, allegedly exposed to asbestos-containing Bakelite, chassis and insulation used in connection with pipes. McDonald was diagnosed with mesothelioma on December 13, 2002 and died on July 8, 2006.

6. Theodore Pendergast

Pendergast was allegedly exposed to asbestos-containing gaskets, floor tiles, brakes and insulation froth the 1950s until the 1970s while working as steamfitter and auto mechanic at various industrial and commercial sites and while performing home renovations. Pendergast was diagnosed with mesothelioma on January. 2, 2004 and died on January 20, 2005. 7. Ronald Yetter

Yetter was allegedly exposed to asbestos-containing gaskets, packing, firebrick and insulation used in connection with boilers, pipes, pumps and, turbines while working as a machinist mate at the Brooklyn Navy Yard from the 1950s until the 1970s. Yetter was diagnosed with mesothelioma on June 20, 2003 and died on September 9, 2005.

The Lung Cancer Group

1. William N. Barton

Barton was allegedly exposed to asbestos-containing gaskets, packing and insulation while working as an operating engineer at various industrial sites and powerhouses in upstate New York from the 1950s until the 1990s. He was diagnosed with lung cancer on April 8, 2003 and died on July 6, 2005.

2. Patrick W. Lowden, Jr.

Lowden was allegedly exposed to asbestos-containing gaskets, packing, blankets and insulation while working as a carpenter and laborer at various sites from the 1960s until the 1990s. He was diagnosed with lung cancer on November 9, 2001 and died on February 16, 2002.

3. Francis J. Smith

Plaintiffs' counsel alleges that Smith was exposed to asbestos containing gaskets, floor tiler arc shoots, arc proofing and insulation in connection with his work as an electrician at various-commercial, industrial and powerhouse sites and while performing home renovations from the 1950s until the 1930s. Smith was diagnosed with lung cancer on May 23, 2003 an died on August 24, 2004.

Discussion

CPLR § 602 [a] permits a court to join actions involving common questions of law or fact; joinder common matters 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 AD2d 824, 826 [1st Dept 1984]). The courts are given "great deference" in the decision to join matters (Matter of Progressive Ins. Co. [Vasquez-Countrywide Ins. Co.], 10 AD3d 518, 519 [1st Dept 2004]). The chief policy considerations, behind consolidation or joinder are efficiency and the conservation of judicial resources (see Sokolow, Dunaud, Mercadier & Carreras v Licher, 299 AD2d 64, 73-74 [1st Dept 2002], Matter of New York City Asbestos Litigation, 188 AD2d 214, 225 [1st Dept 1993]; affd 82 NY2d 821, 625 NE2d 588, 605 NYS2d 3 [1993]). Yet, "considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial" (Johnson v Celotex Corp., 899 F2d 1281, 1284 [2d Cir 1990]). Joint trials are not appropriate when "individual issues predominate, concerning particular circumstances applicable to each plaintiff' (Bender v Underwood, 93 AD2d 747, 748 [1st Dept 1983]). Thus, although a joint trial has the potential to "reduce the cost of litigation, make more economical use of the trial Court's time, and speed the disposition of cases as well as [] encourage settlements" (Malcolm v National Gypsum Co., 995 F2d 346, 354 [2d Cir 1993]), it is "possible to go too far in the interests of expediency and to sacrifice basic fairness in the process" of joinder, and joint trial should be denied where (1) individual issues predominate over common issues in the cases sought to be joined, or (2) the party Opposing the joint trial demonstrates substantial prejudice" (Ballard v Armstrong World Industries, 191 Misc2d 625, 627-28 [Sup Ct Monroe Cty 2002]).

To decide whether a joint trial is proper in the context of asbestos-related personal injury and wrongful death actions, courts consider the factors set forth in Malcolm v National Gypsum Co., 995 F2d 346, 351-352 (2d Cir 1993). Specifically, courts look at "(1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs [a]re living or deceased; (6) stalls of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged" (id. at 351 [quotations and citations omitted]). The party moving for joinder bears the initial burden of demonstrating the commonality of the issues, at which point the, burden shifts to the opponent to establish prejudice and potential jury confusion (Bender 93 AD2d at 748) Malcolm does not require that plaintiffs share identical occupations; identical workspace or identical time of exposure. Rather, Malcolm only requires that there be Similarity among the criteria and any other interpretation would undermine the purposes of joint trial, i.e., the conservation of judicial resources and litigation expenses and the fostering of settlement (Assesnzio v A.O. Smith Water Prods., 2013 NY Slip Op 30801 [U] [Sup Ct, New York County]).

Plaintiffs have established that there is sufficient commonality among the three plaintiffs in the proposed Lung Cancer Group so as to warrant a joint trial. Obviously, all three plaintiffs suffered from lung cancer, meaning that the expert medical testimony regarding the etiology, and pathology of the plaintiffs' conditions will be similar. All three plaintiffs in the Lung Cancer Group are deceased, and each is represented by the same law firm. Moreover, although the three plaintiffs did not engage in identical occupations at identical worksites over identical periods of time, all three plaintiffs allege exposure from the same or similar products — namely asbestos containing insulation, boilers, pumps and gaskets. Testimony and evidence regarding most of these products and the type of asbestos exposure that could result them will be identical or nearly so in all three cases. The fact that Smith alone alleges exposure to asbestos-containing floor tiles, are proofing and arc shoots does not warrant denying plaintiffs' order to show cause. Further, the alleged periods of exposure; for these three plaintiffs range from the 1950s through the 1990s, and therefore, the state of art evidence will sufficiently overlap. Accordingly, the Lung Cancer Group actions Will be tried jointly.,

Among the proposed Mesothelioma Group, there is sufficient commonality among plaintiffs Freeman, Lamberty, Marino and Pendergast to warrant a joint trial of their actions. However, because Dietrich McDonald and Yetter allege exposure while working at a shipyard (Dietrich and Yetter) or while serving in the Army (McDonald) it is appropriate to segregate these actions as they potentially involve federal government contractor defenses that would not be applicable to the other cases. Accordingly, it is hereby

ORDERED that plaintiffs' order to show cause is granted to the extent that Barton, Index Number XXXXXX-XXXX, Lowden, Index Number XXXXXX-XXXX and Smith Index Number XXXXXX-XXXX shall be tried jointly and all parties to these actions shall appear for a pre-trial conference on in Part 10, Room 422 of the courthouse located at 60 Centre Street, New York 10007 on November 26, 2013 at 9:30 am; and it is further

ORDERED that Freeman, Index Number XXXXXX-XXXX, Marino, Index Number XXXXX-XXXX and Pendergast, Index Number XXXXXX-XXXX shall be tried jointly and all parties to these actions shall appear for a pre-trial conference in Part 10, Room 422 of the courthouse located at 60 Centre Street, Centre Street, New York 10007 on November 26, 2013 at 9.30 am; and it is further

ORDERED that Dietrich, Index Number. XXXXXX-XXXX, McDonald, Index Number XXXXXX-XXXX and Yetter, Index Number XXXXXX-XXXX shall be tried jointly and all parties these actions shall appear for a pre-trial conference in Part 10, Room 422 of the courthouse located at 60 Centre Street, New York 10007 on November 26, 2013 at 9:30 am; and it is further

Sources

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