Silviano v. AO Smith Water Prods. Co. (2024)

Our plain-English summary of Silviano v. AO Smith Water Prods. Co. (New York Supreme Court, January 17, 2024).

Jo-Ann Silviano, executrix of the estate of Kenneth Last, sued many companies over Last's death from pleural mesothelioma. She asked the New York County Supreme Court to try her case jointly with the case of Patrick Joyce, who also died of pleural mesothelioma. The court said both men were carpenters exposed to asbestos at work. Both also spent significant parts of their careers assisting auto mechanics who worked on brakes and clutches. Union Carbide, Mario & DiBono Plastering and Tishman Realty opposed the motion. They argued the cases had too little in common in worksite, occupation, years of exposure and defendants. The court applied the factors from Malcolm v. National Gypsum and the case management order. It found seven of the eight factors satisfied, including that discovery was complete and the same lawyers represented both plaintiffs. The men did not share worksites, but the court held that this did not prevent a joint trial because safeguards could prevent juror confusion. It 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.

The decision

• Court: New York Supreme Court
• Decided: January 17, 2024
• Citation: 2024 NY Slip Op 30902(U)
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted the plaintiff's motion for a joint trial of the Last action with the Joyce action over the opposition of defendants Union Carbide, Mario & DiBono Plastering and Tishman Realty.

What the court held. Under the case management order, cases may be joined for trial using the Malcolm factors, and not every factor must be present. Differing worksites do not bar joinder where adequate trial safeguards can avoid juror confusion.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Kenneth Last: pleural mesothelioma; died

• Patrick Joyce: pleural mesothelioma; died

Who	Work	Where	When	Products
Kenneth Last	carpenter (construction)
Kenneth Last	assisting auto mechanics; worked near others using it			brakes, clutches and friction materials
Patrick Joyce	carpenter (construction)
Patrick Joyce	assisting auto mechanics; worked near others using it			brakes, clutches and friction materials

The defendants

• Union Carbide Corporation
• Mario & DiBono Plastering Co. (contractor)
• Tishman Realty & Construction Co., Inc. (contractor)

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 30902(U)

JO-ANN SILVIANO AS EXECUTRIX FOR THE ESTATE OF KENNETH LAST, Plaintiff,

v.

A.O. SMITH WATER PRODUCTS CO., AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR-

BY-MERGER TO BUFFALO PUMPS, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG

COMPANY, N/K/A BAYER CROPSCIENCE INC., AMERICAN BILTRITE INC., ARCONIC, INC,

AURORA PUMP COMPANY, BIRD INCORPORATED, BLACKMER, BORGWARNER MORSE TEC

LLC, BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, BW/IP,

INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CBS CORPORATION, F/K/A VIACOM INC.,

SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC

CORPORATION, CERTAINTEED CORPORATION, COMPUDYNE CORPORATION, INDIVIDUALLY,

AND AS SUCCESSOR TO YORK SHIPLEY, INC., CRANE CO, CROWN BOILER CO., F/K/A CROWN

INDUSTRIES, INC., DAP, INC., DOMCO PRODUCTS TEXAS, INC., FLOWSERVE US, INC. SOLELY

AS SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC.,

NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY,

FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN PUMP

BUSINESSES, FORT KENT HOLDINGS, INC., FORMERLY KNOWN AS DUNHAM-BUSH, INC.,

FOSTER WHEELER, L.L.C., GARDNER DENVER, INC., GENERAL ELECTRIC COMPANY, GOULDS

PUMPS LLC, GRINNELL LLC, HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL,

INC./BENDIX, IMO INDUSTRIES, INC., INTERNATIONAL PAPER COMPANY, INDIVIDUALLY AND AS

SUCCESSOR TO CHAMPION INTERNATIONAL CORPORATION, AS SUCCESSOR TO UNITED

STATES PLYWOOD CORPORATION, ITT INDUSTRIES, INC. INDIVIDUALLY AND AS SUCCESSOR-

IN-INTEREST TO HOFFMAN SPECIALTY, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL

& GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC., J-M

MANUFACTURING COMPANY, INC, KAISER GYPSUM COMPANY, INC., KOHLER CO., LEVITON

MANUFACTURING CO., INC, MANNINGTON MILLS, INC., MARIO & DIBONO PLASTERING CO., INC,

MORSE DIESEL, INC, NORTHROP GRUMMAN CORP. AS SUCCESSOR TO GEORGE A. FULLER

COMPANY, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER), PNEUMO ABEX LLC,

SUCCESSOR IN INTEREST TO ABEX CORPORATION (ABEX), PORT AUTHORITY OF NEW YORK

AND NEW JERSEY, RHEEM MANUFACTURING COMPANY, SLANT/FIN CORPORATION, SPIRAX

SARCO, INC. INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, TISHMAN LIQUIDATING

CORP, TISHMAN REALTY & CONSTRUCTION CO., INC, TURNER CONSTRUCTION COMPANY, U.S.

RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, UTICA BOILERS, INC.,

INDIVIDUALLY AND AS SUCCESSOR TO UTICA RADIATOR CORPORATION, VELAN VALVE

CORPORATION, VIKING PUMP, INC, WARREN PUMPS, LLC, WEIL-MCLAIN, A DIVISION OF THE

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

LLC, WEYERHAEUSER COMPANY, IPA SYSTEMS, INC., Defendant.

Index No. 190242/2019, Motion Seq. No. 007.

Motion January 17, 2024.

March 18, 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 seeking a joint trial 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 Joyce v AO Smith Water Products Co., etal., 190173/2020. 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, Kenneth Last and Patrick Joyce, were exposed to asbestos during their employment as carpenters. Plaintiffs were also exposed during their work assisting auto mechanics, working on similar equipment, i.e. brakes and clutches. Plaintiff further contends that both plaintiffs developed plural mesothelioma and are deceased. Moreover, the discovery in both of these cases have been completed, and both plaintiffs are represented by the same counsel.

Defendants Union Carbide Corporation, Mario & DiBono Plastering Co., and Tishman Realty & Construction Co., Inc. oppose the instant motion, arguing that plaintiff failed to meet the burden to establish sufficient commonalities amongst the two actions. Specifically, opposing defendants contend that there is no commonality as to the plaintiffs' worksite, occupation, years of exposure, and defendants.

Here, reviewing all the Malcolm factors, the Court finds, and it is undisputed, that plaintiffs, Mr. Last and Mr. Joyce, were both exposed to asbestos through their employment as carpenters. Moreover, during significant portions of their career, Mr. Last and Mr. Joyce both worked assisting auto mechanics. Additionally, both plaintiffs developed pleural mesothelioma and are deceased. Furthermore, discovery in these actions is complete and the plaintiffs have the same counsel. Thus, seven of the eight Malcom 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. 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 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 Joyce v AO Smith Water Products Co., etal., 190173/2020.

Accordingly, it is

ORDERED that a joint trial is granted as to Last v AO Smith Water Products Co., etal., 190242/2019, and Joyce v AO Smith Water Product Co., etal., 190173/2020; and it is further

ORDERED that, within thirty 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