Moore v. AERCO Int'l (Matter of New York City Asbestos Litigation, 2015)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Supreme Court, April 29, 2015).

Nine plaintiffs in the New York City asbestos docket, all represented by the Williams Law Firm, asked the court to try their cases together. Five have mesothelioma and four (Group 3) have lung cancer. Some are living and some have died. The defendants opposed, raising due process and equal protection objections. The court granted the motion and put the cases into three groups for joint trial. Group 1 is Harry Moore, Earl Skinnider and Owen Traynor. Group 2 is Onorato Balacich and Salvator Murabito. Group 3 is George Birrell, Charles Hermida, Guiseppe Liotta and Joseph Parkin. The court applied CPLR 602(a) and the factors from Malcolm v. National Gypsum. It found common questions of law and fact. It noted that each group had the same law firm, the same stage of discovery and the same type of cancer. Plaintiffs need not share an occupation or worksite. In Groups 1 and 3 they had exposure to similar asbestos products in similar ways, and in Group 2 both alleged home renovation and pizza oven work. The court found no prejudice to the defendants' substantial rights.

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: April 29, 2015
• Citation: 2015 NY Slip Op 30709
• Docket: Docket No. 190105/2013
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted the plaintiffs' motion to consolidate nine asbestos actions into three groups for joint trial, over the defendants' objections.

What the court held. Under CPLR 602(a), a court may consolidate asbestos cases for joint trial when they share common questions of law or fact and consolidation does not prejudice a substantial right. The Malcolm factors do not require a common occupation, worksite or time of exposure, and no single factor is dispositive.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Harry Moore: mesothelioma

• Earl Skinnider: mesothelioma

• Owen Traynor: mesothelioma

• Onorato Balacich: mesothelioma

• Salvator Murabito: mesothelioma

• George Birrell: lung cancer

• Charles Hermida: lung cancer

• Guiseppe Liotta: lung cancer

• Joseph Parkin: lung cancer

The defendants

• AERCO International

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.

2015 NY Slip Op 30709(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION.

GEORGE R. BIRRELL AND RAMONA J. BIRRELL, etal., Plaintiffs,

v.

AERCO INTERNATIONAL, etal., Defendants.

Docket No. 190105/2013.

April 29, 2015.

Supreme Court, New York County.

DECISION/ORDER

CYNTHIA S. KERN, Judge.

This court has been assigned 9 asbestos actions for trial, comprising the Williams Law Firm In Extremis trial group. Plaintiffs have brought the present motion to consolidate all of these actions for joint trial, claiming that there are common questions of law and fact.

Pursuant to CPLR section 602 (a), a trial court has discretion to consolidate two or more actions for joint trial if they involve common questions of law or fact. Moreover, "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." Matter of Progressive Ins. Co., 10 A.D.3d 518 (1st Dept 2004).

There are certain criteria which the courts follow in determining whether to consolidate asbestos cases for trial: "(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, 350-351 (2d Cir. 1993). However, no single factor is dispositive. In Re New York City Asbestos Litigation, 2013 N.Y. Misc. Lexis 2080 (Sup Ct NY Co. 2013). Considering all of these factors, the court grants the application of plaintiffs as follows. Group 1 will consist of Harry Moore, Earl Skinnider and Owen Traynor. Group 2 will consist of Onorato Balacich and Salvator Murabito. Group 3 will consist of George Birrell, Charles Hermida, Guiseppe Liotta and Joseph Parkin. As to the three groups being consolidated, this court finds that the trials in each of the groups involve common questions of law and fact and that consolidation of these cases into the three groups will not prejudice a substantial right of defendants. As to the three groups, all of the plaintiffs are represented by the same law firm and are in the same phase of discovery as they have all been assigned to this part for trial. Moreover, in all of the groups, the plaintiffs allege the same type of cancer. All of the plaintiffs in each of these cases have mesothelioma except for group 3 in which all of the plaintiffs have lung cancer. Although all of the groups have living and deceased plaintiffs, the death of some of these plaintiffs will not prejudice the jury against the "defendants, vis-a-vis, the living Plaintiffs" because they are suffering from the same terminal illness and will suffer the same fate. Matter of New York City Asbestos Litig., 11 Misc. 3d 1063[A].

Finally, "the Malcolm factors do not compel the plaintiffs to share a common occupation or common time of exposure." Id. The courts have routinely granted consolidation of trials even where the plaintiffs work at different work sites and have disparate occupations on the ground that "these factors really concern the type of asbestos exposure each plaintiff is claiming and whether there will be shared testimony about the airborne fibers to which plaintiffs were exposed." In Re New York City Asbestos Litigation. (Index No. 114483/02, NY Co. Sup Ct., order dated May 2, 2011, Gische, J.); Carroll v. A.W. Chesterton Company (index # 190295/09; NY Co. Sup Ct., order dated August 25, 2010, Friedman, J.) ("The court recognizes that the plaintiffs. . . did not share the same work sites or same occupations. However, there are overlapping exposures, that is, exposures to various of the same asbestos-containing products as well as exposures that occurred in the same manner, that is, by working directly with asbestos containing materials and/or by means of by-stander exposure.") In

the present case, with respect to Group 2, the plaintiffs have similar occupations and exposures as they both allege that their exposure was from home renovations and working as a pizza oven operator and server. With respect to the other two groups, although the plaintiffs have had different occupations and worked at different job sites, they have had exposure to similar types of asbestos-containing products as well as exposures that have occurred in the same manner-by working directly with asbestos-containing products and by means of bystander exposure. Moreover, they have all had overlapping periods of exposure.

The other arguments raised by defendants in opposition to consolidation, including their due process and equal protection arguments, are without basis. The First Department has just recently held that the trial courts have the authority to consolidate asbestos cases pursuant to CPLR 602 (a) where they involve common questions of law and fact. See Matter of New York City Asbestos Litig. (Dummitt), 121 A.D.3d 230 (1st Dept 2014). Moreover, the court sees nothing inappropriate in consolidating trials from the 2013 and 2014 In Extremis trial group as all of these cases are currently before the court and ready for trial. The court also sees nothing improper in consolidating the case of Balacich with another case even though he allegedly has a different type of mesothelioma. See Dummitt, 121 A.D.3d at 244 (upholding consolidation even though two plaintiffs have different types of mesothelioma). The court also sees nothing improper in consolidating cases where the plaintiff was in the navy with cases where the plaintiff was not in the navy.

Based on the foregoing, the motion to consolidate the cases for trial is granted to the extent stated herein. As discussed at the first conference of this matter, the court will post an order on the NYCAL website two weeks before the date scheduled for jury selection for each group. This constitutes the decision and order of the court.

Sources

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