Montebianco v. AO Smith Corp. (2018)

Our plain-English summary of Montebianco v. AO Smith Corp. (New York Supreme Court, May 2, 2018).

Joseph Montebianco and his wife sued A.O. Smith Corp. and other defendants in New York County. Montebianco, 68, has colon cancer. He alleged asbestos exposure as a telephone repair technician at commercial and residential properties from 1972 to the early 1980s. He said maintenance or boiler repair workers handled asbestos insulation and gaskets near him, and that he disturbed insulation while insulating cable in basements. The plaintiffs asked the court to try his case jointly with that of John Reilly, who has lung cancer. Reilly alleged exposure from renovating his home and from remodeling work from 1978 to 1983. His alleged sources were boiler insulation, gaskets, joint plaster and floor tiles. The defendants opposed joinder. The court noted that both men were exposed in the 1970s and 1980s and through similar kinds of products. It found that their occupations and worksites differed, that only one defendant was common to both cases, and that colon and lung cancer would likely need different medical evidence. It held the plaintiffs had not shown joinder was warranted and denied the motion.

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 2, 2018
• Citation: 2018 NY Slip Op 30881(U)
• Docket: Docket No. 190185/15, Motion Seq. No. 1
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. 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.

What the court held. Cases may be joined for trial only where the plaintiffs show a plain identity of issues under the Malcolm factors, the case management order and New York case law. Similar exposure mechanisms did not outweigh the differences in occupation, worksite and disease.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Joseph L. Montebianco: colon cancer

• John J. Reilly: lung cancer

Who	Work	Where	When	Products
Joseph L. Montebianco	telephone repair technician; worked near others using it	commercial and residential properties	1972 to the early 1980's	pipe and block insulation, gaskets and packing
John J. Reilly	home renovation (construction)	his home	late 1970s	pipe and block insulation, gaskets and packing, joint compound
John J. Reilly	remodeling and renovating residences and commercial spaces (construction)	residences and commercial spaces	1978 to 1983	gaskets and packing, pipe and block insulation, floor tile, joint compound

The defendants

• Ingersoll-Rand
• Trane
• Carrier
• American Biltrite
• Crown
• Columbia
• Mannington Mills
• Weil-McLain
• Flowserve

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (New York Court of Appeals, 2016). The Court of Appeals affirmed the Appellate Division's order, which upheld the judgment for plaintiff Konstantin against Tishman Liquidating Corporation, and held TLC had not preserved or recorded its joint-trial challenge and could not challenge the damages as excessive.
• 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.
• Johnson v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1990). The Second Circuit affirmed the jury judgment for plaintiffs John and Ann Marie Johnson, including compensatory and punitive damages, against Celotex and Owens-Illinois; one judge dissented as to punitive damages.
• 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.
• Matter of New York City Asbestos Litigation v. Baxter Healthcare Corporation (New York Supreme Court, Appellate Division, 1st Dept., 2013). 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.
• Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 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.

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.

2018 NY Slip Op 30881(U)

JOSEPH L. MONTEBIANCO and MAUREEN G. MONTEBIANCO, HIS WIFE, Plaintiffs,

v.

A.O. SMITH CORP., etal., Defendants.

Docket No. 190185/15, Motion Seq. No. 1.

May 2, 2018.

Supreme Court, New York County.

DECISION AND ORDER

BARBARA JAFFE, Judge.

By notice of motion, plaintiffs move pursuant to CPLR 602 for an order consolidating the following active cases for a joint trial: (1) Joseph Montebianco, Index No. 190185/15, and (2) John J. Reilly, Index No. 190412/14. Defendants jointly oppose the consolidation, and certain defendants oppose in the individual cases.

I. APPLICABLE LAW

A motion for a joint trial rests in the discretion of the trial court. (CPLR 602[a]; Matter of New York City Asbestos Litigation [Konstantin], 121 AD3d 230 [1st Dept 2014], affd on other grounds 27 NY3d 1172 [2016]; Matter of New York City Asbestos Litig. [Baruch], 111 AD3d 574 [1st Dept 2013]; JP Foodservice Distrib., Inc. v PricewaterhouseCoopers LLP, 291 AD2d 323 [1st Dept 2002]; Rodgers v Worrell, 214 AD2d 553 [2d Dept 1995]). The party seeking consolidation bears the burden of demonstrating common issues. Once shown, the opposing party bears the burden of demonstrating "prejudice to a substantial right." (Vincent C. Alexander, Practice Commentaries, McKinneys Consol Law of New York, CPLR 602, C602-1). Allegations of prejudice must be specific (Konstantin, 121 AD3d at 245), although alleged prejudice to defendants in consolidated cases and potential juror confusion may be reduced by providing "limiting, explanatory and curative instructions," giving notebooks to jurors to "assist them in recording and distinguishing the evidence in each case," and presenting the jurors with plaintiff-specific verdict questions and sheets. (Id.).

While judicial economy and efficiency should be considered in determining whether to consolidate, those interests "must yield to a paramount concern for a fair and impartial trial." (Johnson v Celotex Corp., 899 F2d 1281 [2d Cir 1990]). Thus, for actions to be consolidated for a joint trial, there must be a "plain identity" of issues (Viggo S.S. Corp. v Marship Corp. of Monrovia, 26 NY2d 157 [1970]; Geneva Temps, Inc. v New World Communities, Inc., 24 AD3d 332 [1st Dept 2005]), which are discerned by considering whether the actions share: (1) worksites, (2) occupations, including mechanism of exposure and product, (3) times of exposure, (4) types of disease, (5) status as alive or deceased, (6) status of discovery, (6) counsel, and (7) type of cancer. (Malcolm v Ntl. Gypsum Co., 995 F2d 346, 350-351 [2d Cir 1993]; Matter of New York City Asbestos Litig. [Konstantin], 121 AD3d 230 [1st Dept 2014], affd on other grounds 27 NY3d 1172 [2016] [citing Malcolm]; Matter of New York City Asbestos Litig. [Baruch], 111 AD3d 574 [1st Dept 2013] [same]; Matter of New York City Asbestos Litig. [Bernard], 99 AD3d 410 [1st Dept 2012] [same]).

Although not all of the factors need be demonstrated to establish a sufficient commonality among or between plaintiffs, "consolidation is appropriate so long as `individual issues do not predominate over the common questions of law and fact.'" (Konstantin, 121 AD3d 230, 242, quoting Bernard, 99 AD3d 410, 411). Moreover, a shared mechanism of exposure or product may render insignificant certain differences among worksites and occupations unless the differences impacted the mechanism of exposure such that the evidence should be heard separately. (Konstantin, 121 AD3d 230 at 242; Matter of Ballard, Sup Ct, New York County, Sept. 10, 2009, Feinman, J., index No. 190102/2008; see Matter of Landry, Sup Ct, New York County, Jan. 21, 2010, Feinman, J., index No. 111058/2003).

Many of the concerns about the consolidation of numerous actions for trial are no longer pertinent given the governing CMO provision. As of July 20, 2017, two cases may be joined for trial where a plaintiff demonstrates that joinder is warranted

under Malcolm and New York State cases interpreting Malcolm. A maximum of three cases may be joined for trial, upon good cause shown and if three or more of the Malcolm factors are present and all three plaintiffs suffer(ed) from one of the following diseases: pleural mesothelioma, non-pleural mesothelioma, lung cancer, or other cancers. II. PLAINTIFFS

A. Joseph Montebianco

At the age of 68, Montebianco suffers from colon cancer. He was allegedly exposed to asbestos while working as a telephone repair technician at commercial and residential properties from 1972 to the early 1980's. He also claims exposure when maintenance or boiler repair personnel handled asbestos insulation and asbestos gaskets on boilers, pumps and valves in his vicinity, and when he disturbed asbestos insulation on boilers, pumps and valves, causing dust to be released while he insulated cable in basements.

The defendants remaining in his action are Ingersoll-Rand, Trane, and Carrier.

B. John Reilly

Reilly suffers from lung cancer at the age of 48. He was allegedly exposed to asbestos in the late 1970s while performing renovations in his home, and from 1978 to 1983 while remodeling and renovating residences and commercial spaces. He claims that during his home renovation, he was exposed to asbestos-containing insulation when he removed a boiler from his basement and to asbestos-containing gaskets used in connection with pumps and valves that were later installed. He also alleges exposure to asbestos-containing joint plaster used in his presence during the renovation, and when he performed construction work, he alleges being exposed to asbestos-containing gaskets and insulation used in and on boilers that he demolished and removed. At various sites, he contends, he was additionally exposed to asbestos dust released from floor tiles he installed and joint plaster he used.

The defendants remaining in his action are American Biltrite, Carrier, Crown, Columbia, Mannington Mills, Weil-McLain, and Flowserve.

III. ANALYSIS

Pursuant to the amended CMO, plaintiffs must establish that joinder is warranted under Malcolm and New York State cases interpreting Malcolm.

Defendants deny that there was a common worksite shared by plaintiffs, as Reilly's work was uniquely restricted to single family homes, whereas most of Montebianco's work was performed at housing projects and apartment buildings. Not only were their occupations different, defendants maintain, but Montebianco's exposure was secondary, whereas Reilly worked directly with asbestos-containing products, and they also suffer from different forms of cancer.

Of the nine remaining defendants in both actions, there is only one in common. Trane and Ingersoll, Rand contend that consolidating the cases when they are defendants in only the Montebianco case will violate their rights to a fair trial and due process, and that the difference between the plaintiffs outweigh any commonalities.

Montebianco and Reilly were both exposed during the 1970s and 1980s, and while their occupations and worksites differ, the mechanisms of their exposures do not, as they were allegedly exposed to asbestos-containing insulation and asbestos-containing parts on gaskets, boilers, pumps, and valves. However, Montebianco directly worked with asbestos-containing materials and was additionally exposed to joint plaster and floor tiles. And, the pathology of colon and lung cancer is different and will likely require different medical evidence.

Plaintiffs have thus failed to show that consolidation is warranted pursuant to the Malcolm factors, the CMO, and pertinent caselaw.

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that plaintiffs' motion for consolidation is denied.

Sources

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