Munna v. American Honda Motor Co., Inc. (2023)

Our plain-English summary of Munna v. American Honda Motor Co., Inc. (New York Supreme Court, September 15, 2023).

Joseph Munna sued American Honda, many other vehicle and parts companies, and others over lung cancer he attributed to asbestos. This decision did not address liability. Munna asked the New York County Supreme Court to try his case together with that of Daniel Lamonica, who sued AO Smith Water Products Co. and others. The court said both men were auto mechanics who were exposed to asbestos while working on similar equipment, including brakes, gaskets and clutches. Both have lung cancer and are still living, discovery was complete in both cases, and both have the same counsel for plaintiffs. Mercedes-Benz, Volkswagen and other defendants opposed, arguing the cases lacked common worksites, occupations, years of exposure and counsel. Applying the case management order and the eight Malcolm factors, the court found six satisfied and said not all must be present. It noted the cases did not share worksites but said safeguards at trial could prevent juror confusion. It granted the joint trial and set it for October 10, 2023.

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: September 15, 2023
• Citation: 2023 NY Slip Op 33228(U)
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted plaintiff Joseph Munna's motion for a joint trial with Lamonica v AO Smith Water Products Co., over the opposition of several defendants, and set trial for October 10, 2023.

What the court held. Under the case management order and the Malcolm factors, not all factors need be present for cases to be joined for trial; where most factors are met and common issues exist, joint trial is proper, and safeguards can limit juror confusion.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Joseph Munna: lung cancer

• Daniel Lamonica: lung cancer

Who	Work	Where	When	Products
Joseph Munna	auto mechanic (auto mechanics and brake work)			brakes, clutches and friction materials, gaskets and packing, brakes, gaskets, and clutches
Daniel Lamonica	auto mechanic (auto mechanics and brake work)			brakes, clutches and friction materials, gaskets and packing, brakes, gaskets, and clutches

The defendants

• Mercedes-Benz USA, LLC (manufacturer)
• Volkswagen Group of America, Inc. (manufacturer)
• Hennessy Industries, LLC (manufacturer)
• Ford Motor Company (manufacturer)
• Advance Auto Parts, Inc. (supplier)

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.

2023 NY Slip Op 33228(U)

JOSEPH MUNNA, KAREN MUNNA, Plaintiff,

v.

AMERICAN HONDA MOTOR CO., INC.;, BMW OF NORTH AMERICA, LLC;, BORGWARNER MORSE

TEC LLC, FEDERAL-MOGUL ASBESTOS PERSONAL INJURY TRUST, FIAT CHRYSLER

AUTOMOBILES N.V.;, FIAT U.S.A., INC.;, FORD MOTOR COMPANY;, GENUINE PARTS COMPANY;,

GOODRICH CORPORATION, GOODYEAR TIRE & RUBBER COMPANY, THE, HENNESSY

INDUSTRIES, INC.;, HONEYWELL INTERNATIONAL, INC., McCORD CORPORATION, MERCEDES-

BENZ USA, LLC;, MORTON THIOKOL;, NATIONAL AUTO PARTS ASSOCIATION, PEP BOYS-

MANNY, MOE & JACK, PERFORMANCE INDUSTRIES, INC., PNEUMO-ABEX, LLC, ROBERT BOSCH

CORPORATION, TOYOTA MOTOR SALES, USA, INC.;, VOLKSWAGEN OF AMERICA, INC.;, VOLVO

CARS OF NORTH AMERICA, INC.;, VOLVO CARS OF NORTH AMERICA, LLC;, VOLVO TRUCKS

NORTH AMERICA, INC., WESTERN AUTO SUPPLY COMPANY;, ADVANCE AUTO PARTS, INC.,

DANA COMPANIES, LLC, FORMERLY KNOWN AS DANA CORPORATION AND INDIVIDUALLY AND

AS SUCCESSOR TO MIDLAND BRAKE, INC., SPICER ENTERPRISES, INC., VICTOR GASKETS AND

WICHITA CLUTCH CO., INC., MOROSO PERFORMANCE PRODUCTS, TENECO INC., UNION

CARBIDE CORPORATION, JOHN DOE 1 THROUGH JOHN DOE 75, Defendant.

Index No. 190353/2016, Motion Seq. No. 006.

Motion May 22, 2023.

September 15, 2023.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 236, 237, 238, 239, 240, 241, 242, 243, 244, 247, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 265 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL.

Upon the foregoing documents, it is ordered that plaintiff's order to show cause for joint trials is granted for the reasons set forth below.

Here, plaintiff moves for a joint trial of two actions. Plaintiff seeks to consolidate the instant action with Lamonica v AO Smith Water Products Co., 190006/2021. Defendants oppose. and plaintiff replies.

The Case Management Order dated June 20, 2017 (hereinafter referred to as the "CMO") states that "[t]wo cases may be joined for trial where plaintiff demonstrates that joinder is warranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York State cases interpreting Malcolm. Malcolm and its progeny list factors to measure whether cases should be joined; it is not necessary under Malcolm that all such factors be present to warrant joinder." CMO, § XXV. B. The factors to be considered under Malcolm are "(1) common worksites; (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, 955 F2d at 350-351. The United States Court of Appeals, 2nd Circuit, further noted that "[c]onsolidation of tort actions sharing common questions of law and fact is commonplace. This is true of asbestos-related personal injury cases as well." Malcolm, id. at 350 (internal quotations and citations omitted).

Plaintiff argues that consolidation of the cases for joint trial as specified above is appropriate. Plaintiff contends that both plaintiffs, Joseph Munna and Daniel Lamonica were exposed to asbestos during the course of their employment as auto mechanics, working on similar equipment and machinery; i.e. brakes, gaskets, and clutches. Plaintiff further contends that both plaintiffs developed lunch cancer and are both still living with such illness. Moreover, the discovery in both of these cases have been completed, and both plaintiffs are represented by the same counsel.

Defendants Mercedes-Benz USA, LLC and Volkswagen Group of America, Inc. jointly oppose, and defendants Hennessy Industries, LLC, Ford Motor Company, and Advance Auto Parts, Inc. file separate opposition papers to join defendant Mercedes-Benz USA, LLC and Volkswagen Group of America, Inc.'s opposition. Plaintiff replies.

Opposing defendants argue that plaintiff failed to meet the burden to establish sufficient commonalities amongst the 2 actions. Specifically, opposing defendants contend that there is no commonality as to the plaintiffs' worksite, occupation, years of exposure, and similar counsel.

Here, reviewing all the Malcolm factors, the Court finds, and it is undisputed, that plaintiffs, Mr. Munna and Mr. Lamonica, were both exposed to asbestos through their employment and their handling of similar materials and equipment. Moreover, during significant portions of their career, Mr. Munna and Mr. Lamonica were both auto mechanics. Additionally, both plaintiffs developed lung cancer from which both plaintiffs are currently living with, the discovery in these actions are complete, and the plaintiffs have the same counsel. Opposing defendants correctly argue that their respective counsel differ. Thus, six of the eight Malcolm factors have been satisfied.

There are common issues of law and fact in both actions. The CMO explicitly states that the Court may order joinder of cases based upon the Malcolm factors and that not all such factors must be present. Here, the Malcolm factors support joinder of the 2 actions. As Hon. Manuel Mendez previously held, "[j]udicial economy would be served by consolidating the actions of deceased plaintiffs with mesothelioma and whose exposure was related to their work on similar products.... In these case consolidations: (1) the central issue is the same; (2) it is the same Plaintiffs' counsel in the actions; (3) the Plaintiffs suffered from the same disease; (4) the Plaintiffs in the group are all deceased; and (5) the Plaintiffs were exposed ... in a similar manner." Haley v ABB, Inc., 190150/19, mot. 008, dated December 11, 2019. As stated above, although the plaintiffs did not share common worksites, this does not preclude joinder of the cases for trial. Adequate safeguards can be put in place during the trial to avoid juror confusion. Thus, plaintiffs motion seeking a joint trial is granted as to the instant action with Lamonica v AO Smith Water Products Co., 190006/2021.

Accordingly, it is

ORDERED that plaintiff's motion seeking a joint trial is granted; and it is further

ORDERED that a joint trial is granted as to the instant action with Lamonica v AO Smith Water Products Co., 190006/2021; and it is further

ORDERED that the trial of these actions is hereby scheduled on October 10, 2023; and it is further

ORDERED that, within 14 days of entry, plaintiffs shall serve a copy of this order upon all parties, together with notice of entry.

This constitutes the Decision/Order of the Court.

Sources

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