Matter of New York City Asbestos Litigation v. Baxter Healthcare Corporation (2013)

Our plain-English summary of Matter of New York City Asbestos Litigation v. Baxter Healthcare Corporation (New York Supreme Court, Appellate Division, November 26, 2013).

Three plaintiffs, including Karl Fersch, sued Volkswagen Group of America and other companies over asbestos-related disease. The opinion says all three worked as mechanics and were exposed to asbestos products for vehicles over a substantially overlapping 40-year period. One plaintiff has mesothelioma and the other two have lung cancer. The trial court ordered the three cases consolidated for trial, and Volkswagen appealed. The First Department was asked whether that was an abuse of discretion. It affirmed. The court noted that the plaintiffs had the same lawyers and that each case was ready for trial. It acknowledged some differences, including the type of disease, but found that these did not outweigh the substantial overlap of factual and legal issues. It also found no sign that consolidation would prejudice Volkswagen's right to a fair trial.

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: 111 A.D.3d 574
• Stage: Appeal from other
• State: New York

Outcome. The appellate court affirmed the trial court's order consolidating the three plaintiffs' cases for trial, rejecting Volkswagen Group of America's challenge to consolidation.

What the court held. A trial court does not abuse its discretion in consolidating asbestos cases for trial where the plaintiffs' exposure periods, counsel and trial readiness overlap and the shared factual and legal issues outweigh differences such as disease type.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Karl Fersch: mesothelioma

• Ester Baruch: lung cancer

The defendants

• Volkswagen Group of America, Inc. (manufacturer)
• Amchem Products 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.

Later decisions citing this one

12 later decisions in our library cite this one:

• Bucci v. Air & Liquid Sys. Corp. (New York Supreme Court, 2018). The trial court denied the plaintiffs' motion to consolidate the Bucci, Johnsen and Palmeri asbestos cases for a joint trial, ruling for the defendants who opposed it.
• Matter of Adesso v. AO Smith Water Prods. Co. (New York Supreme Court, 2018). The court granted plaintiffs' motion in part, ordering joint trials for Cerato/Lynch, McCormick/Munnelly, Kalachman/Rothman, Hickey/Litz, George/Toy, Hutnick/Soto and Hill/Lipari, and denied joinder for Swanson/Whitaker, Hiddie/Rose, Costa/Endelmann, Lehanka/Snider, Bascomb/Gallagher and for adding Scott to Hill and Lipari, over the defendants' opposition.
• Montebianco v. AO Smith Corp. (New York Supreme Court, 2018). The court denied the plaintiffs' motion to consolidate the Montebianco and Reilly asbestos cases for a joint trial, so the defendants prevailed on the motion.
• Cunningham v. Aerco Intl. (New York Supreme Court, 2017). The court granted in part the plaintiffs' motion to consolidate eleven asbestos cases, ordering four joint-trial groups of two or three cases each and separate trials for the Keith and Reno cases over the defendants' objections.
• Altman v. Ford Motor Co. (In re New York City Asbetos Litigation) (New York Supreme Court, 2017). The court granted plaintiffs' motion to consolidate in part: Altman and Hofstetter were to be tried together, Barber, Egri and Moynihan were to be tried together, and DeStefano, Fox, Baginski and Evans were to be tried separately.
• Cicio v. American Biltrite (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2016). The court denied the plaintiffs' motion to consolidate the Cicio, Keeny and Matuk mesothelioma cases for a joint trial, so American Biltrite and Kaiser Gypsum prevailed and the cases will be tried individually.
• Assenzio v. Burnham (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Burnham's and Cleaver-Brooks' motions to set aside the five mesothelioma verdicts for the plaintiffs, but found every damages award excessive and ordered new damages trials unless each plaintiff accepts a reduced award.
• Flahive v. 3M Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court granted plaintiffs' motion to consolidate in part, joining the Flahive and Germain actions for one trial and the Izbicki and Jalowski actions for another over defendants' opposition, but ordered the Valensi action tried separately.
• Brady v. Crane Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court granted plaintiffs' motion to consolidate 13 asbestos cases for joint trial only in part: it ordered joint trials for Miceli and Ward, for Carey, Falkenmeyer and Frick, and for Nash and Pettinelli, and ordered Miller, Brady, McCormick, Morgan, Castorina and Padula tried separately, over defendants' objections.
• Best v. The William Powell Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The court denied the plaintiffs' motion to consolidate the Best/Nefsey and Rocovich/Weil asbestos cases for joint trial, so the opposing defendants prevailed.
• Abrams v. Foster Wheeler (In re New York City Asbestos Litigation) (New York Supreme Court, 2014). The court granted the plaintiffs' motion in part, consolidating the Bova, Futia, Gay and McGinnity actions for a joint trial and ordering the Obremski and Abrams actions tried separately.
• Feuerman v. A.O. Smith Water Prods. Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2014). The court granted plaintiffs' motion for joint trials in part, ordering the four mesothelioma cases tried together, the three lung cancer cases tried together separately, and the Bova case tried individually.

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 LITIGATION v. BAXTER HEALTHCARE CORPORATION, 111 AD 3d 574 - NY: Appell… 111 A.D.3d 574 (2013)

975 N.Y.S.2d 660

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

ESTER BARUCH et al., Plaintiffs,

v.

BAXTER HEALTHCARE CORPORATION et al., Defendants.

KARL FERSCH et al., Respondents,

v.

AMCHEM PRODUCTS INC. etal., Defendants, and

VOLKSWAGEN GROUP OF AMERICA, INC., Appellant.

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

Decided November 26, 2013.

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

[*575] Concur—Mazzarelli, J.P., Acosta, Moskowitz, Manzanet-Daniels and Gische, JJ.

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]).

Sources

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