Papsodero v. Air & Liquid Sys. Corp. (2023)

Our plain-English summary of Papsodero v. Air & Liquid Sys. Corp. (New York Supreme Court, December 20, 2023).

Thomas Papsodero and his wife sued Air & Liquid Systems Corporation and many other companies in New York County Supreme Court over his pleural mesothelioma. He asked the court to try his case together with the case brought by the executor of the estate of Thomas McCormick, who also had pleural mesothelioma. Both men were said to have been exposed to asbestos while serving in the United States Navy, from similar machinery aboard naval vessels such as gaskets, pumps, valves and traps, during overlapping years starting in the 1960s. Defendants Burnham, Jenkins and Velan Steam Trap opposed. They argued the men's worksites, occupations and exposure dates differed and that a joint trial would be inefficient and unfair. The court applied the Malcolm factors set out in the case management order. It found six of eight satisfied, including overlapping exposure of about 24 years, completed discovery and the same counsel. It held that the lack of common worksites did not bar joinder and that safeguards could prevent juror confusion. It granted the motion and set trial for June 4, 2024.

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: December 20, 2023
• Citation: 2024 NY Slip Op 31212(U)
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted plaintiff Papsodero's motion for a joint trial with the McCormick estate's asbestos action over opposition from defendants Burnham, Jenkins and Velan Steam Trap.

What the court held. Under the case management order and the Malcolm factors, two asbestos cases may be joined for trial even if not all factors are met, such as common worksites, where common issues of law and fact exist and safeguards can prevent juror confusion.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Thomas Louis Papsodero: pleural mesothelioma

• Thomas McCormick: pleural mesothelioma; died

Who	Work	Where	When	Products
Thomas Louis Papsodero	service with the United States Navy (the Navy); military service	naval vessels	1960s	gaskets and packing
Thomas McCormick	service with the United States Navy (the Navy); military service	naval vessels	1960s	gaskets and packing

The defendants

• Burnham LLC (manufacturer)
• Jenkins Bros. (manufacturer)
• Velan Steam Trap Corporation (manufacturer)
• Air & Liquid Systems Corporation (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.

2024 NY Slip Op 31212(U)

THOMAS LOUIS PAPSODERO, AMPARO PAPSODERO, Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION, ALFA LAVAL INC., A.O. SMITH CORPORATION,

ARMSTRONG INTERNATIONAL, INC., ATWOOD & MORRILL COMPANY, INC., BARNES AND

JONES, INCORPORATED, BOSTIK, INC., CARRIER CORPORATION, CLEAVER-BROOKS

COMPANY, DAP PRODUCTS, INC, FMC CORPORATION, FORT KENT HOLDINGS, INC, GARDNER

DENVER, INC., GOULDS PUMPS, LLC, H.B. SMITH COMPANY, INC, HEXION INC., HONEYWELL

INTERNATIONAL INC., IMO INDUSTRIES, INC., INGERSOLL-RAND COMPANY, ITT CORPORATION,

JERGUSON GAGE & VALVE COMPANY, KAISER GYPSUM COMPANY, INC., LENNOX INDUSTRIES,

INC, NASH ENGINEERING CO., PROGRESS LIGHTING, INC., RICHARDS INDUSTRIES VALVE

GROUP, SID HARVEY INDUSTRIES, INC., SPIRAX SARCO, INC., TRANE U.S., INC., UNION

CARBIDE CORPORATION, WARREN PUMPS, LLC, WEIL MCLAIN CO., YORK INTERNATIONAL

CORPORATION, AMERICAN BILTRITE, INC., BURNHAM LLC IND. AND AS SUC. TO KEWANEE

BOILER AND BRYAN STEAM, LLC, CHAMPION INTERNATIONAL CORPORATION AS SUCCESSOR

BY MERGER TO U.S. PLYWOOD-CHAMPION PAPERS, INC., CLA-VAL CO., COPES-VULCAN, INC.,

CURTISS-WRIGHT CORPORATION, FLOWSERVE CORP. SUCCESSOR TO DURCO, FLOWSERVE

US, INC. IND. AND AS SUC. TO NORDSTROM VALVES, FLOWSERVE US, INC. IND. AND AS SUC.

TO EDWARD VALVES, INC., ROCKWELL MANUFACTURING INC., GESTRA INC., DURAMETALLIC

CORP., ALDRICH PUMPS, CAMERON PUMPS, VOGT VALVES, AND WILSON-SNYDER

CENTRIFUGAL PUMPS, GOODRICH CORPORATION IND. AND AS SUC. TO F/K/A THE BF

GOODRICH COMPANY SUCCESSOR-IN-INTEREST BY MERGER WITH COLTEC INDUSTRIES, INC.

AND GARLOCK, INC., GOODYEAR TIRE & RUBBER COMPANY, GRUNDFOS PUMPS

CORPORATION USA, HOMASOTE COMPANY, H.B. FULLER COMPANY, INTERNATIONAL PAPER

COMPANY IND. AND AS SUC. TO OTIS FALLS PULP & PAPER COMPANY, J.H. FRANCE

REFRACTORIES CO., INC., MILWAUKEE VALVE COMPANY IND. AND AS SUC. TO HAMMOND

VALVE, MTH PUMPS/MTH TOOL COMPANY, INC., MILTON ROY LLC, NICHOLSON STEAM TRAP,

INC., ROPER PUMP COMPANY, ROTH PUMP COMPANY, SLANT-FIN CORPORATION, SPX

COOLING TECHNOLOGIES, INC. IND. AND AS SUC. TO INDIVIDUALLY AND AS SUCCESSOR-IN-

INTEREST TO MARLEY COOLING TOWER COMPANY, SUPERIOR BOILER WORKS, INC., WEIR

VALVES & CONTROLS USA, INC. IND. AND AS SUC. TO ATWOOD & MORRILL, CO., INC.,

WEYERHAEUSER COMPANY, GOODRICH CORPORATION, HUBBELL INCORPORATED

(DELAWARE), LEVITON MANUFACTURING CO., TENNECO AUTOMOTIVE OPERATING COMPANY

INC., AURORA PUMP COMPANY, BORGWARNER MORSE TEC LLC, CYCLOTHERM OF

WATERTOWN, INC., RAIN BIRD CORPORATION IND. AND AS SUC. TO HAMMOND VALVE,

GOODYEAR CANADA, INC., CANVAS MW, LLC, F/K/A THE MARLEYWYLAIN COMPANY, LLC AND

CANVAS SX, LLC, F/K/A SPX, LLC, Defendant.

Index No. 190102/2022, Motion Seq. No. 003.

December 20, 2023.

April 8, 2024.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that plaintiff's order to show cause for a joint trial is granted for the reasons set forth below. Here, plaintiff moves for a joint trial of two asbestos actions. Plaintiff seeks to consolidate the instant action with Stein as Executor for the Estate of Thomas McCormick v Air & Liquid Systems Corp., Individually and as Successor by Merger to Buffalo Pumps, Inc., etal., 190052/2023. Defendants Burnham LLC ("Burnham") and Jenkins Bros. ("Jenkins") oppose on the basis that plaintiff has not demonstrated sufficient commonalities between the cases, that a joint trial would violate moving defendants' due process rights, and would be judicially inefficient. Defendant Velan Steam Trap Corporation ("Velan Steam Trap") also opposes the instant order to show cause, joining in defendants Burnham and Jenkins' opposition. 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, Thomas McCormick and Thomas Papsodero, were exposed to asbestos during the course of their service with the United States Navy from similar asbestos-containing machinery aboard naval vessels (including gaskets, pumps, valves, and traps). Plaintiff further contends that both plaintiffs developed pleural mesothelioma from such exposure and the exposure occurred during "substantially overlapping years starting in the 1960s". See Affirmation of Derell D. Wilson, Esq. dated December 18, 2023, p. 9-10. Moreover, both cases are at the same stage of discovery and both plaintiffs are represented by the same counsel.

Defendants Burnham, Jenkins, and Velan Steam Trap argue that the plaintiffs did not have similar enough worksites or occupations and that plaintiffs' dates of exposure differ. Defendants further argue that each matter requires different witnesses on their part and that a joint trial will not necessarily be resolved more quickly.

Here, reviewing all the Malcolm factors, the Court finds, and it is undisputed, that both plaintiffs, Mr. McCormick and Mr. Papsodero, were exposed to asbestos through their employment with the United States Navy, working aboard naval vessels, and their handling of similar materials and equipment. Additionally, both plaintiffs developed pleural mesothelioma from their exposure to asbestos, such overlapping period of exposure time being approximately 24 years. The discovery in both of these actions are complete, and both plaintiffs have the same counsel. 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 two actions. Although the two 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, plaintiff's motion seeking a joint trial is granted.

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 Stein as Executor for the Estate of Thomas McCormick v Air & Liquid Systems Corp., Individually and as Successor by Merger to Buffalo Pumps, Inc., etal., 190052/2023; and it is further

ORDERED that all parties to appear in Court on June 4, 2024 at 9:30am in room 422 of 60 Centre Street, New York, NY 10007 for trial. Counsel must be prepared for jury selection on such date; 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