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Servedio v. AO Smith Water Prods. Co. (2023)

Our plain-English summary of Servedio v. AO Smith Water Prods. Co. (New York Supreme Court, December 27, 2023).

Plaintiff Charles Servedio and other plaintiffs in New York City asbestos cases asked the court to try fifteen separate actions together in six groups of two or three cases. Each plaintiff had developed lung cancer, and some had died of it. The court described their asbestos exposure through work such as boiler maintenance, plumbing, carpentry, and work at the Astoria powerhouse. Defendants opposed. They argued that the case management order limited joinder to two cases, that the plaintiffs had too little in common, and that joint trials would confuse juries and prejudice them. Union Carbide also pointed to punitive damages claims. The court applied the factors from Malcolm v. National Gypsum. It found that at least six of the eight factors were met in each group and that the plaintiffs in each group had the same disease. It held that a lack of common worksites did not bar joinder, and that instructions at trial could address juror confusion. The plaintiffs dropped their punitive damages claims to qualify, and the court granted 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.

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The decision

Outcome. The trial court granted the plaintiffs' motion for joint trials, joining fifteen New York asbestos actions into six groups of two or three cases each, over the defendants' opposition.

What the court held. Under the New York City Asbestos Litigation case management order and the Malcolm factors, cases may be joined for trial when enough factors are met. Three cases may be joined if the plaintiffs share the same disease category. Not every factor is required, and a lack of common worksites does not bar joinder.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

Who Work Where When Products
Charles Servedio maintaining, repairing, and inspecting boilers 1950s to 1970s
Funicello maintaining, repairing, and inspecting boilers 1950s to 1970s
Frankini plumber 1961 to 1990
Bomzer plumber 1968 to 1986
McCabe union carpenter (construction) 1958 to 1995 floor tile, joint compound, floor tiles, joint compound
Moore Sr. union carpenter (construction) 1956 to 1990 floor tile, joint compound, floor tiles, joint compound
Surace union carpenter (construction) 1953 to 1995 floor tile, joint compound, floor tiles, joint compound
Salinari Sr. 1955 to the mid 1970's floor tile, joint compound, gaskets and packing, pipe and block insulation, vinyl floor tiles, joint compound, sheet rock, pumps, valves, gaskets, insulation
Sanese 1957 to 1979 floor tile, joint compound, gaskets and packing, pipe and block insulation, vinyl floor tiles, joint compound, sheet rock, pumps, valves, gaskets, insulation
Goldstein 1955 to 1992 floor tile, joint compound, vinyl floor tiles, joint compound, sheet rock
Buckley 1969 to 2011 gaskets and packing, pipe and block insulation, boilers, pumps, valves, gaskets, insulation
Burns 1958 to 2013 gaskets and packing, pipe and block insulation, boilers, pumps, valves, gaskets, insulation
Ober 1974 to 1994 gaskets and packing, pipe and block insulation, boilers, pumps, valves, gaskets, insulation
Mooney maintained, repaired, and inspected pipes (power plants and utilities) Astoria powerhouse, Astoria, New York 1960s to 1980s gaskets and packing, pipe and block insulation, gaskets, insulation
Cloonan maintained, repaired, and inspected pipes (power plants and utilities) Astoria powerhouse, Astoria, New York 1960s to 1980s gaskets and packing, pipe and block insulation, gaskets, insulation

The defendants

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 34538(U)

CHARLES SERVEDIO, Plaintiff,

v.

A.O. SMITH WATER PRODUCTS CO., AMCHEM PRODUCTS, INC., BORGWARNER MORSE TEC

LLC., BURNHAM, LLC, CARRIER CORPORATION, CERTAINTEED CORPORATION, CRANE CO,

CYCLOTHERM OF WATERTOWN, INC, DANA COMPANIES, LLC, ECR INTERNATIONAL, CORP.,

H.B. FULLER COMPANY, HONEYWELL INTERNATIONAL, INC., ITT LLC., J.H. FRANCE

REFRACTORIES COMPANY, KOHLER CO, OWENS-ILLINOIS, INC, PEERLESS INDUSTRIES, INC,

PFIZER, INC. (PFIZER), REYNOLDS METALS COMPANY, RHEEM MANUFACTURING COMPANY,

SCHNEIDER ELECTRIC USA, INC. FORMERLY KNOWN AS, SLANT/FIN CORPORATION, U.S.

RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, WEIL-McLAIN, A DIVISION OF

THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF, LEVITON

MANUFACTURING CO., INC., Defendant.

Index No. 190144/2018, Motion Seq. No. 002.

Motion June 30, 2023.

December 27, 2023.

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 joint trials is granted for the reasons set forth below. Here, plaintiff moves for a joint trial of fifteen actions, to be consolidated into six groups. Plaintiff seeks to consolidate these fifteen actions as follows:

Group 1 — plaintiff seeks to consolidate Servedio v AO Smith Water Products Co., 190144/2018, with Funicello v Amchem Products, Inc., et. al., 190247/2019. Defendants oppose and plaintiff replies.

Group 2 — plaintiff seeks to consolidate Frankini v Aerco Int'l, Inc., et. al., 190165/2020, with Bomzer v A.F. Rockland Plumbing, et. al., 190019/2020. Defendants oppose and plaintiff replies.

Group 3 — plaintiff seeks to consolidate McCabe v ABB, Inc., 190036/2019, with Moore v AO Smith Water Products Co., 190054/2017, and Surace v Amchem Products, Inc., 190017/2014. Defendants oppose and plaintiff replies. Group 4 — plaintiff seeks to consolidate Salinari, Sr. v Air & Liquid Systems, 190151/2019, with Sanese v AO Smith Water Products Co., 190190/2013, and Goldstein v Amchem Products, Inc., 190159/2020. Defendants oppose and plaintiff replies. Group 5 — plaintiff seeks to consolidate Ober v Amchem Products, Inc., 190465/2018, with Burns v AO Smith Water Products Co., 190016/2019, and Sudano v AO Smith Water Products Co., 190175/2017. Defendants oppose and plaintiff replies.

Group 6 — plaintiff seeks to consolidate Mooney v Amchem Products, Inc., 190249/2019, with Cloonan v Aerco Int'l, Inc., 190014/2019. 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). As to consolidation of three cases, the CMO states that "[u]pon good cause shown, a Trial Judge in NYCAL may join a maximum of three cases for trial where it determines that 1) joinder is warranted under three or more of the factors described in Malcolm and New York State cases interpreting Malcolm, and 2) where the three plaintiffs share the same disease. For purposes of this section `same disease' shall mean that all the plaintiffs in the three cases proposed to be joined for trial share one of the following four categories of disease: 1) pleural mesothelioma, or 2) non-pleural mesothelioma, or 3) lung cancer, or 4) other cancers." CMO, §XXV. B.

Plaintiff argues that consolidation of the cases for joint trial as specified in the groups above is appropriate. Plaintiff contends that the Malcolm factors were met and consolidation must be granted. Defendants jointly oppose, arguing that the CMO specifically states that no more than two cases should be joined but, in several of the proposed groups, plaintiff is attempting to join three cases in contravention of the CMO. Defendants further argue that plaintiff failed to meet the burden to establish sufficient commonalities amongst the actions, and that a joint trial would be contrary to judicial economy and prejudicial to defendants.

As to Group 1, the instant action and Funicello v Amchem Products, Inc., et. al., 190247/2019, after reviewing all the Malcolm factors, the Court finds that plaintiffs, Mr. Servedio and Mr. Funicello were both exposed to asbestos through their employment maintaining, repairing, and inspecting boilers and through their handling of boilers. Moreover, Mr. Servedio and Mr. Funicello's overlapping period of exposure spanned two decades from the 1950s to the 1970s. Additionally, both plaintiffs developed lung cancer from which both plaintiffs are currently battling, the discovery in both actions are complete, and the plaintiffs have the same counsel. Additionally, defendants Burnham, LLC, Crane Co., Peerless Industries, Inc., and Weil-McLain are common defendants. Thus, at least six of the eight Malcolm factors have been satisfied. With regards to Group 2, plaintiff seeks to consolidate Frankini v Aerco Int'l, Inc., et. al., 190165/2020, with Bomzer v A.F. Rockland Plumbing, et. al., 190019/2020. In addition to the joint opposition by all defendants, defendant Union Carbide Corporation submits individual opposition papers. Defendant Union Carbide Corporation argues that there are laws and facts specific to it in the cases in which it is a defendant, joint trials are not permissible where plaintiff seeks punitive damages, and that plaintiff failed to satisfy the Malcolm factors or establish that consolidation would not confuse the jury and prejudice defendants. However, despite the defendants' contentions, Mr. Bomzer and Mr. Frankini were both exposed to asbestos through their employment as plumbers and through their handling of similar materials and equipment such as boilers. These two plaintiffs have similar times of exposure in that Mr. Bomzer was exposed to asbestos from 1968 to 1986 and Mr. Frankini was exposed to asbestos from 1961 to 1990. Moreover, both plaintiffs developed lung cancer from which both plaintiffs are currently battling, the discovery in both of these actions are complete, and both plaintiffs have the same counsel. Additionally, defendants Burnham LLC, Columbia Boiler Company of Pottstown, Crane Co., Dunkirk Boilers, ITT Industries, Inc., ITT LLC, Jenkins Bros., Peerless Industries, Inc., Union Carbide Corporation, Utica Boilers, Inc., individually and as successor to Utica Radiator Corporation, and Weil-McLain are common defendants. Thus, seven of the eight Malcolm factors have been satisfied.

Regarding Group 3, plaintiff seeks to consolidate McCabe v ABB, Inc., 190036/2019, with Moore v AO Smith Water Products Co., 190054/2017, and Surace v Amchem Products, Inc., 190017/2014. In addition to the joint opposition by all defendants, defendant Union Carbide Corporation submits individual opposition papers. Defendant Union Carbide Corporation argues that there are laws and facts specific to it in the cases in which it is a defendant, joint trials are not permissible where plaintiff seeks punitive damages, and that plaintiff failed to satisfy the Malcolm factors or establish that consolidation would not confuse the jury and prejudice defendants. However, after reviewing all the Malcolm factors, the Court finds that plaintiffs, Mr. McCabe, Mr. Moore Sr., and Mr. Surace, were all exposed to asbestos through their employment as union carpenters and through their handling of similar materials and equipment such as floor tiles and joint compound. These three (3) plaintiffs have similar times of exposure in that Mr. McCabe was exposed to asbestos from 1958 to 1995, Mr. Moore Sr. was exposed to asbestos from 1956 to 1990, and Mr. Surace was exposed to asbestos from 1953 to 1995. Additionally, all 3 plaintiffs developed lung cancer from which all 3 plaintiffs are currently battling, the discovery in all of these actions are complete, and the 3 plaintiffs have the same counsel. Thus, seven of the eight Malcolm factors have been satisfied.

As for Group 4, plaintiff seeks to consolidate Salinari, Sr. v Air & Liquid Systems, 190151/2019, with Sanese v AO Smith Water Products Co., 190190/2013, and Goldstein v Amchem Products, Inc., 190159/2020. In addition to the joint opposition by all defendants, defendants Union Carbide Corporation, The Goodyear Tire & Rubber Company (hereinafter referred to as defendant "Goodyear Tire"), and DAP, Inc. submit individual opposition papers. Defendant Union Carbide Corporation argues that there are laws and facts specific to it in the cases in which it is a defendant, joint trials are not permissible where plaintiff seeks punitive damages, and that plaintiff failed to satisfy the Malcolm factors or establish that consolidation would not confuse the jury and prejudice defendants. Defendant Goodyear Tire opposes the consolidation of the 3 actions in Group 4, but specifically opposing the consolidation of the Goldstein action with either, or both of, the Salinari Sr. or the Sanese actions, arguing that Mr. Goldstein does not share the necessary Malcolm factors sufficient for a joint trial, and that Mr. Goldstein had a significantly higher smoking history than either Mr. Salinari Sr. or Mr. Sanese, and that defendant Goodyear Tire is a defendant solely in the Goldstein action. Defendant Goodyear Tire further argues that plaintiff's medical causation expert in the Goldstein action differs from the medical causation expert in the Salinari Sr. and Sanese actions. Defendant DAP, Inc. argues that it is only a defendant in the Goldstein case, that it was not afforded the opportunity to participate in discovery in the Salinari Sr. and Sanese actions, and that consolidation of the actions would result in the jury overlooking defendant DAP, Inc.'s general causation defense as to its specific product at issue only in the Goldstein action. However, despite the defendants' contentions, in reviewing all the Malcolm factors, the Court finds that plaintiffs, Mr. Salinari Sr., Mr. Sanese, and Mr. Goldstein, were all exposed to asbestos through their employment and through their handling of similar materials and equipment such as vinyl floor tiles, joint compound, and sheet rock. Mr. Salinari, Sr. and Mr. Sanese were additionally exposed to pumps, valves, gaskets, and insulation. Moreover, these 3 plaintiffs have similar times of exposure in that Mr. Salinari Sr. was exposed to asbestos from 1955 to the mid 1970's, Mr. Sanese was exposed to asbestos from 1957 to 1979, and Mr. Goldstein was exposed to asbestos from 1955 to 1992. Additionally, all 3 plaintiffs developed lung cancer from which all 3 plaintiffs are currently battling, the discovery in all of these actions are complete, and the 3 plaintiffs have the same counsel. Counsel for the opposing defendant Union Carbide Corporation represents such defendant in all 3 actions. Thus, six of the eight Malcolm factors have been satisfied.

As to Group 5, plaintiff seeks to consolidate Ober v Amchem Products, Inc., 190465/2018, with Burns v AO Smith Water Products Co., 190016/2019, and Sudano v AO Smith Water Products Co., 190175/2017. Despite the defendants' contentions, after reviewing all the Malcolm factors, Mr. Buckley, Mr. Burns, and Mr. Ober were all exposed to asbestos through their employment and through their handling of similar materials and equipment such as boilers, pumps, valves, gaskets, and insulation. These 3 plaintiffs also have similar times of exposure in that Mr. Buckley was exposed to asbestos from 1969 to 2011, Mr. Burns was exposed to asbestos from 1958 to 2013, and Mr. Ober was exposed to asbestos from 1974 to 1994. Moreover, the 3 plaintiffs developed lung cancer from which all 3 plaintiffs subsequently passed away, the discovery in these actions are complete, and the 3 plaintiffs have the same counsel. Additionally, defendants Burnham LLC, ITT LLC, and Peerless Industries, Inc. are common defendants. Thus, six of the eight Malcolm factors have been satisfied. As to Group 6, plaintiff seeks to consolidate Mooney v Amchem Products, Inc., 190249/2019, with Cloonan v Aerco Int'l, Inc., 190014/2019. Despite defendants' contentions, after reviewing all the Malcolm factors, the Court finds that plaintiffs, Mr. Mooney and Mr. Cloonan were both exposed to asbestos through their employment, of which they both worked at the Astoria powerhouse. Both plaintiffs maintained, repaired, and inspected pipes and worked with other similar materials such as gaskets and insulation. Moreover, Mr. Mooney and Mr. Cloonan's overlapping period of exposure spanned two decades from the 1960s to the 1980s. Additionally, both plaintiffs developed lung cancer from which both plaintiffs subsequently passed away, the discovery in both actions are complete, and the plaintiffs have the same counsel. Thus, at least six of the eight Malcolm factors have been satisfied.

There are common issues of law and fact in these 6 groups of 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 these actions separated into the 6 groups detailed above. 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. Moreover, the CMO specifically permits the joint trial of three actions where, as here, three or more of the Malcolm factors have been met and the three plaintiffs share the same disease. 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 and specific instructions may be given to address defendants' concerns. Moreover, the CMO specifies that "[a] plaintiff may drop a claim for punitive damages at the time of a motion for joinder in order to enable a case to be joined with another one or two cases, if the case in question otherwise satisfies the conditions set forth herein." CMO, §XXV. C. Plaintiff's Affirmation in Further Support of Motion for Joint Trial, dated August 14, 2023, states that plaintiffs are dropping their claims for punitive damages in the cases above to enable them to be eligible for joinder. Thus, plaintiff's motion seeking joint trials is granted.

Accordingly, it is

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

ORDERED that a joint trial is granted as to Servedio v AO Smith Water Products Co., 190144/2018 and Funicello v Amchem Products, Inc., et. al., 190247/2019; and it is further

ORDERED that a joint trial is granted as to Frankini v Aerco Int'l, Inc., et. al., 190165/2020 and Bomzer v A.F. Rockland Plumbing, et. al., 190019/2020; and it is further

ORDERED that a joint trial is granted as to McCabe v ABB, Inc., 190036/2019, Moore v AO Smith Water Products Co., 190054/2017, and Surace v Amchem Products, Inc., 190017/2014; and it is further

ORDERED that a joint trial is granted as to Salinari, Sr. v Air & Liquid Systems, 190151/2019, Sanese v AO Smith Water Products Co., 190190/2013, and Goldstein v Amchem Products, Inc., 190159/2020; and it is further

ORDERED that a joint trial is granted as to Ober v Amchem Products, Inc., 190465/2018, Burns v AO Smith Water Products Co., 190016/2019, and Sudano v AO Smith Water Products Co., 190175/2017; and it is further

ORDERED that a joint trial is granted as to Mooney v Amchem Products, Inc., 190249/2019 and Cloonan v Aerco Int'l, Inc., 190014/2019; and it is further

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

This constitutes the Decision/Order of the Court.

Sources

How to cite it

Cite the decision

Servedio v. AO Smith Water Prods. Co., 2023 NY Slip Op 34538(U) (New York Supreme Court December 27, 2023).

Cite our summary

“Summary of Servedio v. AO Smith Water Prods. Co.” AsbestosClaims.Law Library. https://asbestosclaims.law/library/cases/servedio-v-ao-smith-water-prods-co-2023.

ACL Doc numbers and their short links never change. See how to cite the Library.

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