To Be Argued By:
SETH A. DYMOND
Time Requested: 30 Minutes
APL-2014-00317
New York County Clerk’s Index No. 190134/10
Court of Appeals
STATE OF NEW YORK
In Re: New York County Asbestos Litigation
RUBY E. KONSTANTIN, Individually and as Executrix of the Estate of
DAVE JOHN KONSTANTIN, deceased,
Plaintiffs-Respondents,
—against—
630 THIRD AVENUE ASSOCIATES, et al.,
Defendants,
TISHMAN LIQUIDATING CORPORATION,
Defendant-Appellant.
BRIEF FOR PLAINTIFFS-RESPONDENTS
d
SETH A. DYMOND
BELLUCK & FOX, LLP
546 Fifth Avenue, 4th Floor
New York, New York 10036
Telephone: (212) 681-1575
Facsimile: (212) 681-1594
Attorneys for Plaintiffs-Respondents
June 5, 2015
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... iv
PRELIMINARY STATEMENT ............................................................................... 1
COUNTER-STATEMENT OF THE CASE ............................................................. 8
A. The Original Consolidation Order And The Distinct Trial Ruling ............... 8
i. The in extremis status of Messrs. Konstantin and Dummitt ............... 8
ii. The original consolidation order, which TLC does not appeal
from ..................................................................................................... 9
iii. The unpreserved trial ruling regarding the two-case joint trial ......... 10
B. The Plaintiffs’ Cases At Trial ......................................................................11
i. Mr. Konstantin’s case ........................................................................ 11
ii. Mr. Dummitt’s case ........................................................................... 12
iii. The substantial economy derived as a result of the common
issues of fact and law ........................................................................ 13
C. The Conduct of Trial and Supreme Court’s Effective Management ..........15
i. The closing hours policies that were reluctantly implemented at
the time of this trial ........................................................................... 15
ii. The impact of the closing hours policies on the instant trial ............ 16
iii. Supreme Court’s vigilant use of cautionary instructions and
intelligent management devices ........................................................ 17
iv. Plaintiffs’ counsel’s assistance in maintaining a clear distinction
of identity between the two cases ...................................................... 19
D. The Distinctive Verdicts And The Remittitur Of Damages ........................20
E. The Appellate Division’s Affirmance .........................................................21
ii
ARGUMENT ........................................................................................................... 23
I. THE APPELLATE DIVISION DID NOT COME REMOTELY
CLOSE TO ABUSING ITS DISCRETION AS A MATTER OF LAW
BY AFFIRMING THE JOINT TRIAL OF THESE TWO CASES ...........23
A. Appellant’s Argument That This Court Should “Bar” All Joint
Trials Of In Extremis Asbestos Actions Is A Patently Improper
Request For Judicial Legislation That Is Not Before This Court ..... 23
i. Even assuming that the plain language of C.P.L.R. 602
was not controlling, strong policy justifications support
the consolidation of in extremis asbestos actions ...................27
ii. Joint trial determinations for terminally-ill asbestos
plaintiffs are the product of fair and balanced
consideration rather than a rubber stamp ................................30
iii. Appellant’s speculative and immaterial “bolstering”
argument is predicated on slanted statistics and ignores
that defendants have prevailed in joint trial settings ..............32
B. Appellant’s Challenge To The Two-Case Joint Trial Ruling Is
Unpreserved....................................................................................... 35
C. The Standard Of Review Is Limited To The Legal Question Of
Whether The Appellate Division’s Affirmance Constituted An
Abuse Of Discretion As A Matter Of Law ....................................... 38
D. The Joint Trial Affirmance Was Not An Abuse Of Discretion,
Let Alone An Abuse Of Discretion As A Matter Of Law ................ 40
i. Numerous common questions of law and fact supported
the joint trial ............................................................................44
1. Since the only claims asserted in both cases
sounded in negligence, and both cases involved
failure to warn claims, multiple common questions
of law supported the joint trial ......................................44
2. Both Plaintiffs suffered the same “type of asbestos
exposure,” to wit, an occupational, products-based
exposure ........................................................................47
iii
3. The state-of-the-art evidence was identical for both
cases ..............................................................................49
4. Both Plaintiffs suffered from the same diseases and
cancer ............................................................................53
5. Both terminally-ill Plaintiffs were alive at the time
of trial ............................................................................57
6. The common representation of Plaintiffs and of
some Defendants ...........................................................58
7. Plaintiffs called three common expert witnesses .........59
ii. The Appellate Division’s analysis was responsive rather
than burden-shifting ................................................................60
iii. Appellant has utterly failed to articulate any prejudice, let
alone prejudice to a substantial right, as a result of the
joint trial ..................................................................................60
1. The conduct of trial resulted from the closing hours
policies, which would have affected this case in the
same manner had it been tried individually ..................62
2. Supreme Court’s careful trial management ensured
that no prejudice resulted from the joint trial ...............64
3. There is not even an inkling of jury confusion
evident in the verdicts, which conform exactly to
the evidence adduced in each separate case .................68
iv. The joint trial promoted the salutary goals of consolidation ..72
II. APPELLANT’S CHALLENGE TO THE QUANTUM OF DAMAGES
IS NONREVIEWABLE AND, IN ANY EVENT, BASELESS ................74
CONCLUSION ........................................................................................................ 78
iv
TABLE OF AUTHORITIES
NEW YORK STATE CASES
Akely v. Kinnicutt,
238 N.Y. 466 (1924) .................................................................................... passim
Alizio v. Perpignano,
78 A.D.3d 1087 (2d Dept., 2010) ........................................................................61
Allen v. Cloutier Constr. Corp.,
44 N.Y.2d 290 (1978) ..........................................................................................45
Amcan Holdings, Inc. v. Torys LLP,
32 A.D.3d 337 (1st Dept., 2006) ..........................................................................61
Andon v. 302-304 Mott Street Assoc.,
94 N.Y.2d 740 (2000) ............................................................................... 3, 39, 40
Bischofsberger v. A.O. Smith Water Prods,
2012 WL 4462393 (Sup. Ct., N.Y. Co., Sept. 20, 2012) ........................ 30, 48, 55
Brady v. Ottaway Newspapers, Inc.,
63 N.Y.2d 1031 (1984) ............................................................................. 3, 38, 40
Brown v. AC & S,
Index No. 120595/00 (Sup. Ct., N.Y. Cty. 2002) ................................................32
Caprara v. Chrysler Corp.,
52 N.Y.2d 114 (1981) ....................................................................... 56, 75, 76, 77
Cardinal v. Garlock, Inc.,
1997 WL 34611530 (Sup. Ct., N.Y. Cty., 1997) .................................................76
Chiacchia v. Nat'l Westminster Bank USA,
124 A.D.2d 626 (2d Dept., 1986) ........................................................................41
Chinatown Apartments, Inc. v. N.Y.C. Transit Auth.,
100 A.D.2d 824 (1st Dept., 1984) ........................................................................60
City of Elmira v. Larry Walter, Inc.,
111 A.D.2d 553 (3d Dept., 1985) ........................................................................35
City of New York v. Maul,
14 N.Y.3d 499 (2010) .................................................................................. passim
Cochetti v. Gralow,
192 A.D.2d 974 (3d Dept., 1993) ........................................................................71
v
Croteau v. AC & S,
Index No. 118793/01 (Sup. Ct., N.Y. Cty. 2008) ................................................32
Darwak v. Benedictine Hosp.,
247 A.D.2d 771 (3d Dept., 1998) ........................................................................35
DeSilva v. Plot Realty, LLC,
85 A.D.3d 422 (1st Dept., 2011) ..........................................................................61
Dube v. Kaufman,
145 A.D.2d 595 (2d Dept., 1988) ........................................................................50
Enright v. Eli Lilly & Co.,
77 N.Y.2d 377 (1991) ..........................................................................................45
Firequench, Inc v. Kaplan,
256 A.D.2d 213 (1st Dept., 1998) ........................................................................27
Grzesiak v. General Elec. Co.,
68 N.Y.2d 937 (1986) ..........................................................................................38
Hackshaw v ABB, Inc.,
2015 WL 246547 (Sup. Ct., N.Y. Cty., 2015) .....................................................34
Harby Associates, Inc. v. Seaboyer,
82 A.D.2d 992 (3d Dept., 1981) ................................................................... 41, 44
Humiston v. Grose,
144 A.D.2d 907 (4th Dept., 1988) .......................................................................61
In re Asbestos Litig.,
2011 WL 5118158 (Sup. Ct., N.Y. Cty., Sept. 7, 2011) ......................................50
In re Eighth Judicial Dist. Asbestos Litig. [Seymour],
106 A.D.3d 1453 (4th Dept., 2013) .....................................................................47
In re Elias,
29 A.D.2d 118 (2d Dept., 1967) ..........................................................................24
In re N.Y. Asbestos Litig. [Marshall],
28 A.D.3d 255 (1st Dept, 2006) .................................................................... 34, 75
In re N.Y.C. Asbestos Litig. [Abrams],
2014 WL 3689333 (Sup. Ct. N.Y. Cty., July 18, 2014) ......................................51
In re N.Y.C. Asbestos Litig. [Adler],
2012 WL 3276720 (Sup. Ct., N.Y. Cty., Aug. 7, 2012) ......................... 31, 45, 55
vi
In re N.Y.C. Asbestos Litig. [Altholz],
11 Misc.3d 1063(A) (Sup. Ct., N.Y. Co., 2006) ........................................... 42, 57
In re N.Y.C. Asbestos Litig. [Assenzio],
2013 WL 1774051 (Sup. Ct., N.Y. Cty., April 17, 2013)....................... 42, 49, 52
In re N.Y.C. Asbestos Litig. [Babravich],
2014 WL 2116092 (Sup. Ct., N.Y. Cty., May 16, 2014) .....................................31
In re N.Y.C. Asbestos Litig. [Ballard],
2009 WL 9151160 (Sup. Ct., N.Y. Cty., Sept. 9, 2009) ......................... 42, 48, 49
In re N.Y.C. Asbestos Litig. [Barnes],
2008 WL 1730004 (Sup. Ct., N.Y. Cty., Apr. 7, 2008) .......................... 48, 55, 56
In re N.Y.C. Asbestos Litig. [Baruch],
111 A.D.3d 574 (1st Dept., 2013) ........................................................... 28, 43, 57
In re N.Y.C. Asbestos Litig. [Batista],
2010 WL 9583637 (Sup. Ct., N.Y. Cty., Feb. 19, 2010) ........................ 46, 49, 67
In re N.Y.C. Asbestos Litig. [Bauer],
2008 WL 3996269 (Sup. Ct., N.Y. Cty., Aug. 21, 2008) ............................. 28, 30
In re N.Y.C. Asbestos Litig. [Bernard],
99 A.D.3d 410 (1st Dept., 2012) ............................................................. 43, 47, 60
In re N.Y.C. Asbestos Litig. [Brooklyn Navy Shipyard Cases],
188 A.D.2d 214 (1st Dept., 1993), aff’d 82 N.Y.2d 821 ............................. passim
In re N.Y.C. Asbestos Litig. [Capozio],
22 Misc. 3d 1109(A) (Sup. Ct., N.Y. Cty., 2009) ................................................51
In re N.Y.C. Asbestos Litig. [Carlucci],
2013 WL 5761459 (Sup. Ct., N.Y. Cty., Oct. 17, 2013) .....................................31
In re N.Y.C. Asbestos Litig. [Cole],
2010 WL 2486146 (Sup. Ct., N.Y. Cty, June 10, 2010) ......................................32
In re N.Y.C. Asbestos Litig. [Collura],
9 Misc.3d 1109(A) (Sup. Ct., N.Y. Cty., 2005) ...................................... 28, 52, 59
In re N.Y.C. Asbestos Litig. [Conti],
2011 WL 1826854 (Sup. Ct., N.Y. Cty., May 2, 2011) ................................ 47, 51
In re N.Y.C. Asbestos Litig. [D=Ulisse],
16 Misc.3d 945 (Sup. Ct., N.Y. Cty., 2007) ........................................................33
vii
In re N.Y.C. Asbestos Litig. [Peraica],
2013 WL 6003218 (Sup. Ct., N.Y. Cty., 2013) ...................................................32
In re Raymond Dean L.,
109 A.D.2d 87 (4th Dept., 1985) .........................................................................29
In re Seventh Judicial Dist. Asbestos Litig. [Wambach],
190 A.D.2d 1068 (4th Dept., 1993) .....................................................................43
Lauto v. Catholic Health Sys., Inc.,
125 A.D.3d 1352 (4th Dept., 2015) .....................................................................77
Liriano v. Hobart Corp.,
92 N.Y.2d 232 (1998) ..........................................................................................50
Majewski v. Broadalbin-Perth Cent. School. Dist.,
91 N.Y.2d 577 (1998) ..........................................................................................24
Mascioni v. Consolidated R.R. Corp.,
94 A.D.2d 738 (2d Dept., 1983) ..........................................................................61
Matter of State of New York v. Ford Motor Co.,
74 N.Y.2d 495 (1989) ..........................................................................................38
McCloskey v. A.O. Smith Water Products,
2014 WL 4311725 (Sup. Ct., N.Y. Cty., Aug. 29, 2014) ....................................33
Megyesi v. Auto. Rentals, Inc.,
115 A.D.2d 596 (2d Dept., 1985) ........................................................................25
Meyers v. Fifth Ave. Bldg. Associates,
90 A.D.2d 824 (2d Dept., 1982) ..........................................................................36
Murphy v. Columbia University,
4 A.D.3d 200 (1st Dept., 2004) ............................................................................70
Penn v Amchem Products,
85 A.D.3d 475 (1st Dept., 2011) ................................................................... 34, 77
People v. Duffy,
44 A.D.2d 298 (2d Dept., 1974) ..........................................................................42
People v. Friedman,
302 N.Y. 75 (1950) ..............................................................................................25
People v. Jones,
24 N.Y.3d 623 (2014) ......................................................................................2, 39
viii
People v. Morris,
21 N.Y.3d 588 (2013) ..........................................................................................43
Philip Shlansky & Bro. v. Grossman,
273 A.D. 544 (1st Dept., 1948) ............................................................................24
Plummer v. Rothwax,
63 N.Y.2d 243 (1984) ..........................................................................................43
Popolizio v. Cty of Schenectady,
62 A.D.3d 1181 (3d Dept., 2009) ........................................................................77
Reed v. City of New York,
304 A.D.2d 1 (1st Dept., 2003) ..................................................................... 75, 77
Rios v. Smith,
95 N.Y.2d 647 (2001) ..........................................................................................74
Rizzuto v. L.A. Wenger Contr. Co.,
91 N.Y.2d 343 (1998) ..........................................................................................50
Ronsini v. Garlock,
256 A.D.2d 250 (1st Dept., 1998) ........................................................................76
Russo v. Valentine,
294 N.Y. 338 (1945) ............................................................................................24
Senko v. Fonda,
53 A.D.2d 638 (2d Dept., 1976) ................................................................... 76, 77
Small v. Lorillard Tobacco Co.,
94 N.Y.2d 43 (1999) ............................................................................................38
Soto v. Maschler,
24 A.D.2d 893 (2d Dept., 1965) ..........................................................................29
Symphony Fabrics Corp. v. Bernson Silk Mills, Inc.,
12 N.Y.2d 409 (1963) .................................................................................. passim
Tate by McMahon v. Colabello,
58 N.Y.2d 84 (1983) ............................................................................................74
Uterhart v. Nat'l Bank of Far Rockaway,
255 A.D. 859 (2d Dept., 1938) ............................................................................24
Vadala v. Carroll,
59 N.Y.2d 751 (1983) ......................................................................................2, 74
ix
Vigo S. S. Corp. v. Marship Corp. of Monrovia,
26 N.Y.2d 157 (1970) .................................................................................. passim
Vogt v. Paradise Alley,
30 A.D.3d 1039 (4th Dept., 2006) .......................................................................77
Weinberg v. Hertz Corp.,
116 A.D.2d 1 (1st Dept., 1986) ............................................................................41
Weinberg v. Hertz Corp.,
69 N.Y.2d 979 (1987) ................................................................................... 39, 40
Yee So v. Wing Tat Realty,
259 A.D.2d 373 (1st Dept., 1999) ........................................................................76
FEDERAL CASES
Consol. Rail Corp v Gottshall,
512 U.S. 532 (1994) .............................................................................................45
Consorti v. Armstrong World Indus.,
72 F.3d 1003 (2d Cir., 1995) ........................................................................ passim
George v. Celotex Corp.,
914 F.2d 26 (2d Cir., 1990) ........................................................................... 49, 51
Gordon v. United States,
383 F.2d 936 (D.C. Cir. 1967) .............................................................................43
Hendrix v. Raybestos-Manhattan, Inc.,
776 F.2d 1492 (11th Cir., 1985) ..........................................................................67
In re Asbestos Litig. [McPadden],
173 F.R.D. 87 (S.D.N.Y. 1997) ........................................................ 49, 58, 72, 74
Johnson v. Celotex Corp.,
899 F.2d 1281 (2d Cir., 1990) ....................................................................... 65, 67
Malcolm v. National Gypsum Co.,
995 F.2d 346 (2d Cir. 1993) ......................................................................... passim
United States v. Solomonyan,
451 F. Supp.2d 626 (S.D.N.Y. 2006) ............................................................ 34, 65
x
FOREIGN STATE CASES
In re Asbestos Litig.,
No. 77C-ASB-2 (Del. Super. Ct., New Castle Cty, Dec. 21, 2007) ....................26
Lujan v. Asbestos Defendants,
Case No. 05-444221 (Cal. Super. Ct., San Francisco Cty., May 14, 2008) ........26
STATUTES AND RULES
22 N.Y.C.R.R. 600.5 .................................................................................................. 9
C.P.L.R. 1002 ...........................................................................................................25
C.P.L.R. 103 .............................................................................................................24
C.P.L.R. 105 .............................................................................................................24
C.P.L.R. 1601 .................................................................................................... 12, 46
C.P.L.R. 1602 ...........................................................................................................46
C.P.L.R. 1603 ...........................................................................................................46
C.P.L.R. 3403 .................................................................................................. 7, 8, 29
C.P.L.R. 3407 ...........................................................................................................29
C.P.L.R. 4011 .......................................................................................................6, 63
C.P.L.R. 5501 ................................................................................................... passim
C.P.L.R. 5528 ............................................................................................................. 9
C.P.L.R. 602 ..................................................................................................... passim
C.P.L.R. 603 ............................................................................................................... 9
C.P.L.R. 901 .............................................................................................................39
F.R.C.P. 23 ...............................................................................................................39
Ga. Code Ann. 51-14-11 ..........................................................................................25
General Obligations Law 15-108 .............................................................................21
Kan. Stat. Ann. 60-4902 ..........................................................................................25
McKinney’s Statues 73 ............................................................................................24
McKinney’s Statutes 240 .........................................................................................74
xi
Mich. R. Admin. Order 2006-6 ................................................................................26
Miss. R. Civ. P. 20 ...................................................................................................25
New York City Asbestos Litigation Case Management Order ...................... 7, 8, 29
Ohio Civ. R. Rule 42 ................................................................................................25
Tex. V.T.C.A. 90.009...............................................................................................25
SECONDARY AUTHORITY
2013 Census Data .....................................................................................................26
Alexander, Practice Commentaries,
McKinney's Cons. Laws of N.Y., Book 7B, C.P.L.R. C602:1 ............................ 25
Black’s Law Dictionary (5th ed.) ......................................................................... 4, 43
Kenneth S. Bordens & Irwin A. Horowitz, The Limits of Sampling and
Consolidation in Mass Tort Trials: Justice Improved or Justice Altered?,
22 L. & Psychol. Rev. 43 (1998) ......................................................................... 33
Michelle J. White, Why the Asbestos Genie Won't Stay in the Bankruptcy
Bottle,
70 U. Cin. L. Rev. 1319 (2002) ........................................................................... 33
P.J.I. 2:12............................................................................................................ 50, 55
P.J.I. 2:120 ............................................................................................................... 45
P.J.I. 2:216 ............................................................................................................... 45
Preliminary Report on the Effect of Judicial Budget Cuts on New York State
Courts,
NYCLA (Aug. 11, 2011) ..................................................................... 6, 15, 62, 64
Remarks of Chief Administrative Judge A. Gail Prudenti, Joint Legislative
Hearing on the 2012-2013 Judiciary Budget (Jan. 30, 2012) .................. 15, 62, 64
Siegel, N.Y. Prac. 128 (5th ed.) ............................................................................... 72
Siegel, Practice Commentaries,
McKinney's Cons. Laws of N.Y., Book 7B, C.P.L.R. C3403:4 .......................... 29
1
PRELIMINARY STATEMENT
The joint trial of Konstantin and Dummitt – two in extremis asbestos actions
sharing numerous common questions of law and fact – generated substantial legal
and judicial economy, and, due in large part to the careful trial management of
Supreme Court, ultimately led to verdicts that conform exactly to the evidence
adduced in each individual case. The joint trial of these two actions exemplifies
how discretionary consolidation under C.P.L.R. 602 should work.
1
But largely ignoring the instant joint trial, Appellant Tishman Liquidating
Corporation (“TLC”) spends much of its Opening Brief addressing why it believes
this Court should, first, outright “bar” the discretionary consolidation of in
extremis asbestos actions, and, second, “curb” damages awards for a cancer that is
not just a death sentence, but is unparalleled in the magnitude of pain and suffering
its victims endure leading up to their inexorable deaths. These agenda-driven
issues are simply not before this Court.
What is before this Court is a joint trial challenge that is unpreserved and a
quantum of damages challenge that is outside this Court’s scope of review. See
C.P.L.R. 5501(b). Indeed, TLC is clearly not appealing from the original
consolidation order, which joined seven cases for trial, as it neither addresses the
1
Although a technical difference exists between consolidation and joinder for trial, the
terms are used interchangeably herein, as they were below.
2
commonalities amongst the seven cases nor includes in its Appendix the motion
papers upon which that order was based. Instead, TLC seeks to appeal from a trial
ruling that, upon the resolution of the five cases other than Konstantin and
Dummitt, concluded that “these two cases” were providently joined for trial. A447-
48. But since Appellant never objected to that ruling, this issue is unpreserved for
review. See C.P.L.R. 5501(a)(3). The judgment, thus, should be automatically
affirmed. See Vadala v. Carroll, 59 N.Y.2d 751, 752-53 (1983).
Should the consolidation issue be considered, what the certified question
brings up for review is nothing more than whether the Appellate Division fulfilled
its intermediate appellate court role by evaluating the merits of the joint trial
format. See City of New York v. Maul, 14 N.Y.3d 499, 509 (2010). Tellingly, not
once in its Opening Brief does Appellant even mention this Court’s limited
standard of review when the Appellate Division affirms an inherently discretionary
act. To wit, this Court reviews only for an “abuse of discretion as a matter of law”
(Id. at 514), which is a legal question, not a factual one. See People v. Jones, 24
N.Y.3d 623, 629 (2014). Even assuming Appellant had alleged such an abuse, it
simply cannot be said that the Appellate Division committed one.
Indeed, the Appellate Division weighed the relevant factors for identifying
common questions of fact or law, comparing the substantial commonalities to the
minor differences between the cases (A26-28), and evaluated whether Appellant
3
was prejudiced to a substantial right by examining the conduct of trial, the great
pains taken by Supreme Court to alleviate the risk of jury confusion, and the actual
verdicts, which, when compared to the record, affirmatively dispel any notion of
jury confusion. A28-30. Against this marked consideration, this Court should be
more than “satisfied that the Appellate Division did not abuse its discretion as a
matter of law” (Andon v. 302-304 Mott Street Assoc., 94 N.Y.2d 740, 747 (2000)),
and should “pass on no other issue.” Brady v. Ottaway Newspapers, Inc., 63
N.Y.2d 1031, 1033 (1984).
Yet even if a further review is conducted, the record makes clear that the
“court below properly exercised the discretion vested in it by statute.” Symphony
Fabrics Corp. v. Bernson Silk Mills, Inc., 12 N.Y.2d 409, 413 (1963); see Vigo S.
S. Corp. v. Marship Corp. of Monrovia, 26 N.Y.2d 157, 162 (1970) (trial court has
“broad discretion to order consolidation”). Under the liberally-construed C.P.L.R.
602(a) and the flexible “guideline” set forth in Malcolm v. National Gypsum Co.
(995 F.2d 346, 350-51 (2d Cir. 1993)), there were at least eight common questions
between these cases, including (1) multiple overlapping legal elements, (2)
occupational, products-based exposures, (3) identical state-of-the-art evidence, (4)
same diseases, (5) same cancer, (6) two living Plaintiffs, (7) same Plaintiffs’
counsel and, in part, defense counsel, and (8) three common expert witnesses.
4
Upon balancing these commonalities against the minor differences, the
Appellate Division appropriately concluded that the joint trial was fully supported.
Appellant’s assertion that the Appellate Division should have injected rigidity into
this discretionary balancing test is antithetical to the liberal construction of the
statute, the intent that Malcolm be a flexible guideline, and the inherent nature of
an act of broad discretion. See Black’s Law Dictionary at 419 (5th ed.) (defining
“discretionary acts” as “[t]hose acts wherein there is no hard and fast rule as to
course of conduct that one must or must not take and, if there is clearly defined
rule, such would eliminate discretion”).
Consequently, significant legal and judicial economy was derived from the
joint trial, thereby supporting the clear policy justifications underpinning the
statute. See In re N.Y.C. Asbestos Litig. [Brooklyn Navy Shipyard Cases], 188
A.D.2d 214, 224-25 (1st Dept., 1993) (“joining cases together is designed to
‘reduce the cost of litigation, make more economical use of the trial court's time,
and speed the disposition of cases’”), aff’d 82 N.Y.2d 821. In both cases, products
liability law was charged, leading to, in part, identical failure to warn questions on
the verdict sheets; and in any case, the only claims asserted against any party were
couched in negligence. A954-66, A979-80, A1126-33, A1140-41. The overlap of
legal and evidentiary issues was so substantial that motions were routinely “joined
in” by defendants, permitting Supreme Court to decide them once rather than
5
twice. See, e.g., RA70 (“we join in the applications, for the record, made by
Crane”).
2
Since both Plaintiffs’ respective last date of exposure was in 1977,
virtually identical state-of-the-art testimony was presented in both cases by the
same expert – Dr. Barry Castleman. RA3 (“anything before 1977 is generally the
area that he is going to cover”). Both cases involved shared testimony regarding
the methodology for testing for dust release from products by the same expert –
Richard Hatfield. A723, A679-713. Both cases also involved the presentation of
general asbestos medicine by the same expert – Dr. Jacqueline Moline. A208. And
since both Plaintiffs suffered from mesothelioma – the only known cause of which
is asbestos exposure – the same medical and scientific principles for causation
were presented in both cases. A477-99, A568-69, A1075. Certainly, the underlying
goals of consolidation were met here.
Nor has Appellant come remotely close to establishing that any prejudice to
a substantial right resulted from the joint trial setting, particularly where all of the
foregoing issues would have arisen had this case been tried individually. See
Symphony Fabrics, 12 N.Y.2d 409, supra at 413 (no prejudice where the issue will
arise “[w]ith or without a consolidation”). The conduct of trial stemmed from the
closing hours policies reluctantly instituted as part of the necessary budget cuts in
2011. In fact, every effect on individual trials portended by the budget cuts
2
“RA__” refers to the Respondent’s Appendix.
6
materialized in the instant trial in August 2011, including the inability to complete
witness testimony, juror tardiness, and an overall lengthening of the trial. See
Preliminary Report on the Effect of Judicial Budget Cuts on New York State
Courts, NYCLA (Aug. 11, 2011).
But despite those constraints, the joint trial took only 26 days, due in large
part to the vigilant and creative trial management of Supreme Court, which
eliminated any risk of jury confusion while advancing a speedy disposition. See
C.P.L.R. 4011. Judge Madden provided notebooks to the jurors (A179-80, A998-
99), spent extra time with the attorneys after hours to address legal issues (A895-
96, A905, A918-19, RA7-8, RA34, RA59), used individualized verdict sheets
(A951, A1126-43), and issued cautionary instructions and case-specific charges to
assist the jury in differentiating between the evidence and claims in each case.
A176, A219, A448, A460, A735, A738-39, A910-11, A933, A939, A951, A969,
RA76-78. Plaintiffs’ counsel, too, consistently differentiated between the evidence
proffered in each case. A208, A375, A723, A728, RA44.
It is no surprise, then, that even the most cursory review of the verdicts
establishes that the jury was not confused in the slightest as to any fact, issue, or
claim involved in these cases. Conforming precisely to the evidence, the jury
found nonparties liable in Konstantin but not in Dummitt, greater past pain and
suffering for Mr. Dummitt, and a longer life expectancy for Mr. Konstantin. And
7
because the jurors were able to compare these cases, the joint trial likely led to a
fairer result. Against this backdrop, Appellant’s claim of the mere “possibility” of
bolstered damages (App. Br. at 48) – to the extent not rendered moot by the
remittitur – is nothing more than pure speculation that is woefully insufficient to
meet its heavy burden of establishing prejudice to a substantial right.
Simply put, it cannot be said that the Appellate Division abused its
discretion as a matter of law in affirming the joint trial. And, notably, a contrary
finding would have far-reaching implications for (1) Mr. Konstantin, who is now
deceased and would suffer the severe prejudice of being unable to attend a new
trial, (2) future terminally-ill asbestos plaintiffs, who, without sensible
consolidation, would likely never live long enough to see their day in Court,
thereby effectively abrogating their accelerated trial preferences under C.P.L.R.
3403 and the New York City Asbestos Litigation (“NYCAL”) Case Management
Order (“CMO”), and (3) the New York County Civil Part, which would suffer the
crushing burden of having to try these cases seriatim, thereby rendering
administration of the Civil Part difficult, if not unworkable.
Accordingly, the order of the Appellate Division should be affirmed, with
costs, and the certified question answered in the affirmative.
8
COUNTER-STATEMENT OF THE CASE
A. The Original Consolidation Order And The Distinct Trial Ruling
i. The in extremis status of Messrs. Konstantin and Dummitt
Upon being diagnosed with mesothelioma – a terminal asbestos cancer –
David Konstantin, and his wife derivatively, commenced this action in Supreme
Court, New York County against, among others, Appellant TLC (f/k/a Tishman
Realty & Construction), Georgia-Pacific Corp., and Kaiser Gypsum Co. A104-05.
Plaintiffs asserted codified and common law negligence claims against TLC and
negligent failure to warn claims against Georgia-Pacific and Kaiser. A124-27,
A130-35.
Based on his in extremis status, Mr. Konstantin was granted an accelerated
trial preference under C.P.L.R. 3403 and the NYCAL CMO. A155, A1113-14. He
was placed into a cluster with nine other in extremis plaintiffs, and a discovery
schedule was issued with the anticipation that the cases would be trial-ready in
October 2010. A155-59. Ronald Dummitt, who similarly suffered from
mesothelioma, was among the plaintiffs in that cluster. A155. In late December
2010 – almost three months longer than anticipated – the 10 cases were transferred
to Judge Joan A. Madden as trial-ready. A160.
9
ii. The original consolidation order, which TLC does not appeal
from
The 10 in extremis plaintiffs moved for a joint trial.
3
Supreme Court granted
the motion to the extent of joining seven of the ten cases for trial, including
Konstantin and Dummitt (A1160-80). TLC, however, chose not to notice an
appeal, apparently not feeling aggrieved by a joint trial of the seven cases. Prior to
trial, five of the seven cases resolved, leaving only Konstantin and Dummitt.
Despite that, TLC never moved for renewal or sought severance under C.P.L.R.
603. It effectively acquiesced to a joint trial of just the two cases.
Indisputably, TLC is not appealing from the original consolidation order, as
it makes no arguments as to the providence of joining the seven cases for trial,
does not even name the five other plaintiffs, and, just as in the Appellate Division,
does not include in its Appendix the original motion papers upon which the order
was based.
3
As the Appellate Division concurring opinion notes, Appellant “neither caused the
original record of the consolidation motion to be transmitted to [the Appellate Division] by the
clerk of Supreme Court, as required by 22 N.Y.C.R.R. 600.5(a)(1), nor included the record of
that motion in the reproduced appendix it has filed with [the Appellate Division] pursuant to
CPLR 5528(a)(5).” A50. In an effort to justify its own failure to include these motion papers in
its Appendix before the Appellant Division, Appellant bizarrely states that Plaintiffs did not file
the consolidation motion. See App. Br. at 9, n.5. Plaintiffs, however, moved by Order to Show
Cause and followed the procedure set forth by the County Clerk for motions made in more than
one case on a single set of papers. The motion, as filed, was given Sequence No. 008 in the lead
case of Altuchoff (Index No. 190058/2010). RA1; see also A1161-80.
10
iii. The unpreserved trial ruling regarding the two-case joint trial
Since the providence of joining just Dummitt and Konstantin for trial had
not previously been addressed, the trial defendants in Dummitt objected to the
consolidation of “these two cases” (A447-48) before opening statements. A169.
4
At no point did TLC lodge an objection to the two-case joint trial or even
join in any of the objections made by the Dummitt defendants; it purposefully
joined in other objections (RA70), but not as to consolidation. In fact, far from
taking exception, TLC used the joint trial format during summation to bolster its
own defense by improperly comparing itself to the manufacturers in Dummitt.
A934 (“We're not a manufacturer. You heard from Crane and Elliott and all these
other companies that were involved on the ships. Tishman is not a
manufacturer…”). The Dummitt defendants objected to the “cross references”
(A934), but TLC defended its improper bolstering, prompting Supreme Court to
instruct the jury to disregard TLC’s remarks. A937, A939.
Supreme Court issued a trial ruling that the two cases were properly joined
and that cautionary instructions would assist the jury in differentiating the cases.
A448. TLC first objected to this trial ruling in its post-verdict motion. A1101.
4
Appellant incorrectly states that Mr. Dummitt’s action was “against Crane.” App. Br. at
18. Defendant Elliott Turbomachinery (“Elliott”) also took a verdict in Dummitt (A1126-33),
but settled the claims against it prior to a determination of its post-verdict motion. This omission
is telling, as Elliot’s mere 1% fault cuts against Appellant’s claim of prejudice or bolstering from
the joint trial setting.
11
Notably, although Crane in Dummitt properly preserved this issue, it
apparently did not believe the joint trial to have been sufficiently erroneous or
prejudicial to challenge it on appeal.
B. The Plaintiffs’ Cases At Trial
i. Mr. Konstantin’s case
Mr. Konstantin established that between 1974 and 1977, he worked as a
carpentry subcontractor at 622 Third Avenue and Olympic Towers – two
Manhattan construction sites where TLC was the general contractor. A259-60,
A286-88, A293-95. The drywalling subcontractors used pre-mixed joint
compound (A406), which was equally manufactured by Georgia Pacific, Kaiser
Gypsum, and U.S. Gypsum (A313-14, A400), and which was asbestos-containing
at all times during Mr. Konstantin’s exposure period. A700-01, A869-71, A1040-
41, A1046-48, A1055-56. Mr. Konstantin’s exposure to the asbestos-laden joint
compound dust was two-fold: first, by working in close proximity to the drywall
subcontractors sanding joint compound on a daily basis (A306-13, A346-49,
A430), who were under the supervisory control of TLC (A314-56); and second, by
working in close proximity to TLC’s own employees when they power swept the
asbestos-laden dust without taking any precautions to protect surrounding workers
(A296, A308-10, A356, A505, A512), despite TLC’s admitted knowledge that
asbestos joint compound (a/k/a plaster) was being used on all of its worksites
12
(A731-32, A864-66, A1034), and its actual knowledge that asbestos in
construction products posed a lethal risk to its subcontractors. A864, A1060-65.
As a result, Mr. Konstantin developed mesothelioma of the tunica
vaginalis – a fatal cancer of the mesothelial tissue lining the testicles. A372. He
asserted that TLC was liable under codified negligence for supervising and
controlling the work of the drywall subcontractors, and that it was also liable under
common law negligence for its own workers’ power sweeping activities that
created an additional, and greater, exposure. A270-71, A969-71, RA76-78.
In its C.P.L.R. article 16 case, TLC asserted negligent failure to warn claims
against the nonparty joint compound manufacturers. A979-80, RA79.
ii. Mr. Dummitt’s case
Mr. Dummitt established that between 1960 and 1977, he served in the U.S.
Navy as a boiler technician, where he was exposed to asbestos from the repair of
products utilizing asbestos gaskets, packing, and lagging pad components. A748-
827. As a result, he developed mesothelioma of the pleura – a fatal cancer of the
mesothelial tissue lining the lungs. A210-11. He asserted negligent failure to warn
claims against Crane and Elliott. A911. In their C.P.L.R. article 16 cases, the
Dummitt defendants attempted to assert premises liability claims sounding in
negligence against nonparty shipyards. RA42, RA67-68.
13
iii. The substantial economy derived as a result of the common issues
of fact and law
Considering that these two cases shared eight commonalities of law and fact
– (1) common and overlapping legal claims, (2) occupational, products-based
exposures, (3) identical state-of-the-art evidence, (4) same diseases, (5) same
cancer, (6) living Plaintiffs, (7) same Plaintiffs’ counsel and, in part, defense
counsel, and (8) three common expert witnesses – the economy derived from the
joint trial is manifest in the record.
In Dummitt, Plaintiff asserted negligent failure to warn claims against Crane
and Elliott (A959-60); in Konstantin, TLC asserted negligent failure to warn
claims against the nonparty joint compound manufacturers. A979-80, RA81. This
led to the same jury charge and identical questions on the verdict sheets. A954-66,
A979-80, A1126-33, A1140-41. To an extent, both cases also involved premises
liability claims. RA42, RA67-68.
5
The legal and evidentiary issues raised were so
similar that Appellant repeatedly joined in motions and arguments raised by the
Dummitt defendants, and vice versa, saving Supreme Court from having to decide
these issues twice. See, e.g., RA7 (“the motion is similar, I believe, in both. And
we join in the arguments”), RA70 (“we join in the applications, for the record,
made by Crane”); see also RA72, RA84, RA89.
5
Although the Dummitt defendants ultimately failed to present sufficient evidence to
place the nonparty shipyards on the verdict sheet, during trial, they had active negligence claims
against those premises owners, thereby creating an additional common issue of law.
14
And since all the claims in both cases sounded in negligence, both cases
involved common elements addressed to reasonable care, including whether
defendants knew or should have known of the dangers of asbestos, which Plaintiffs
sought to prove through, inter alia, state-of-the-art testimony in both cases. Indeed,
both Plaintiffs’ exposure periods ended in 1977 (A358, RA61), meaning the
identical testimony regarding the evolution of the state-of-the-art leading up to
1977 was presented in both cases by the same expert – Dr. Barry Castleman. RA3
(“anything before 1977 is generally the area that he is going to cover”).
Both cases involved the same type of exposure to asbestos, to wit,
occupational, products-based exposure, meaning there was shared testimony from
the same expert – Richard Hatfield – regarding the methods for measuring dust
release from the manipulation of products. A723, A679-713. Both cases also
involved general asbestos medicine presented by the same expert, Dr. Jacqueline
Moline (A208), and since both Plaintiffs suffered from mesothelioma – the only
known cause of which is asbestos exposure – the economy derived by not
rehashing the medical principles was marked. Indeed, Appellant’s own expert
conceded that “mesothelioma is mesothelioma.” A1075.
15
C. The Conduct of Trial and Supreme Court’s Effective Management
i. The closing hours policies that were reluctantly implemented at
the time of this trial
As this Court is well aware, the year in which this case was tried – 2011 –
saw significant judiciary budget cuts that unfortunately necessitated stringent
controls. Chief Administrative Judge A. Gail Prudenti verified that “the 4:30 pm
closing time, which we reluctantly instituted as part of our overtime control
program, has affected the conduct of trials,” and requested a 2012 budget that
would mitigate “the more serious negative impacts of the cost-cutting efforts
necessitated by our austerity budget, including…closing hours policies.” Remarks
of Chief Administrative Judge A. Gail Prudenti, Joint Legislative Hearing on the
2012-2013 Judiciary Budget at 5-6 (Jan. 30, 2012).
After interviews with key Administrators, the Task Force on Judicial Budget
Cuts of the New York County Lawyers’ Association concluded that the impact of
the closing hours policies was that “[t]rials will take longer, inconveniencing
lawyers, witnesses and litigants and making trials more expensive.” NYCLA
Preliminary Report, supra at 3. The Task Force noted that “[w]ithout flexibility to
finish later in the day, the Court must either interrupt witness testimony or plan to
hear fewer witnesses per day,” and “the testimony of expert and other time-
sensitive witnesses may take an extra day (with an extra fee in the case of experts),
or get postponed in order to avoid bringing the witness back for a second day.” Id.
16
at 5, 22. Further, the Task Force noted that “as a result of the cuts, the buildings do
not open until 9 a.m. [instead of 8:30 a.m.],” meaning that “[j]urors, parties and
witnesses are now often late, further shortening the trial day.” Id. at 23.
ii. The impact of the closing hours policies on the instant trial
At trial in summer of 2011, Supreme Court explained that “I know a lot of
the witness’s testimony has been broken up and there's really nothing I can do,
based upon the schedule of the witnesses and the issues, the budgetary issues
which require me to close the courtroom at precise times.” A633; see also A193,
A199, A204, A214, A441, A714, A855, A896, A918-19, A1003. Even
Appellant’s own expert was affected by the closing hours policies (RA62) (“Today
is his only day available”), and he was forced to finish his testimony via videotape
(A1073-76, RA69), despite Supreme Court’s efforts to reschedule its own
commitments to accommodate him on a down day. RA63-64.
Further shortening the trial days was that one juror was consistently tardy,
prompting his excusal from the panel in the middle of trial. A522-23 (“…you’ve
been late on a number of occasions. The trial, particularly because of its length,
cannot be delayed in this fashion. So I’m excusing you from service…”).
Compounding this was that defendants raised an inordinate number of
motions that required extensive court resources to resolve. A454-55 (“there have
been numerous motions made by defendants…, to a certain extent some of the
17
length is due to the number of issues that have been raised…”); see also A671,
A675, A726, A839, A855, A888, A901, A905, RA69, RA73.
The sequence of trial, therefore, had nothing to do with consolidation, and
the closing hours policies impacted both sides equally. Nonetheless, Supreme
Court pressed on with the trial while taking great pains to ensure that no prejudice
to any party resulted. A633 (“Jurors, we’re going to go forward with the next
witness, since we have a little bit of time and I’m trying to move the trial along”).
iii. Supreme Court’s vigilant use of cautionary instructions and
intelligent management devices
Notwithstanding the shortened trial days, the joint trial took only 26 days
due in large part to the careful and creative management efforts of Judge Madden.
She provided notebooks to the jurors (A179-80, A998-99), spent extra time with
the attorneys after hours to address legal issues (A895-96, A905, A918-19, RA7-8,
RA34, RA59, RA73), used individualized verdict sheets (A951, A1126-43), and
issued cautionary instructions and case-specific charges to assist the jury in
differentiating between the evidence and claims presented in each case. A219
(“given that this is a consolidated trial and that there are a number of different
defendants, I think such limiting instruction is helpful for the jury to assist the jury
in identifying what evidence applies to which defendant”). Supreme Court’s
vigilant efforts to alleviate any risk of jury confusion included the following:
18
“Dr. Markowitz's testimony is only to be considered in connection with
Mr. Konstantin. His testimony is not being offered in connection with
Mr. Dummitt.” A460.
“Jurors, regarding who has the responsibilities for safety on the work
site that is a legal issue. I will instruct you as to that issue during my
final instruction. Under the law, both the GC and the owner have
certain responsibilities for safety on the work site. As I indicated, I'll
instruct you in more detail in my final instruction.” A735.
“[a]nd this testimony was admitted in connection with the Konstantin
case. []Mr. Konstantin only alleges exposure to asbestos from asbestos-
containing joint compounds that were used in the projects where he
worked.” A738-39.
“…I find that the limiting and explanatory instructions, which I have
given throughout the trial, which I have just indicated I will again
instruct the jury as to the testimony of Dr. Markowitz and Dr. Moline
specifically that testimony as to which plaintiffs the testimony is being
offered to, will assist the jury in distinguishing the issues.” A448.
“That refers only to Mr. Dummitt. It does not refer to Mr. Konstantin.
Mr. Konstantin’s allegations are under the Labor Law that Tishman
failed to maintain a safe workplace.” A176.
So the first outline I'm going to give you applies to the Dummitt case.
After you’ve heard the summations of the defendants in the Dummitt
case, I will then give you a brief outline of the law as it applies to the
Konstantin case…In the Dummitt case, the issues involve a failure to
warn, dangers with the product. In the Konstantin case, the issues
involve the Labor Law and providing a safe workplace for workers.”
A910-11.
“[t]here are two separate interrogatories: one deals with the Dummitt
case and one deals with the Konstantin case. There are separate legal
issues as to both cases. Each of these cases has to be evaluated
separately and independently. I will refer to the Dummitt case first in
my instructions.” A951.
19
“…I'm now going to instruct you on the law that's applicable in the
Konstantin case since, as I indicated to you, that is a different set of
laws. The Konstantin case involves the Labor Law. So you should have
the jury questions regarding the Labor Law.” A969.
iv. Plaintiffs’ counsel’s assistance in maintaining a clear distinction of
identity between the two cases
Supreme Court did not act alone in reducing the risk of jury confusion.
Plaintiffs’ counsel consistently and repeatedly advised the jury when evidence was
being presented in both cases or in just one case:
“Dr. Moline is being called to testify about general principles of
medicine in both cases and causation in the Dummitt case and the pain
and suffering and course of disease in the Dummitt case only. Dr.
Markowitz will be addressing the specifics of the Konstantin case when
he testifies later in the week. But the testimony about general principles
of medicine applies to both cases.” A208.
“Just to refresh the jury, the court and recollection, Dr. Moline is
testifying about general principles of medicine in both cases, about
causation and the course of the degrees and the exposure only in
Dummitt's.” A648.
“in the Dummitt case only, your Honor, the plaintiffs call Gerrit
Kimmey, M.D.” A375.
“Dr. Strauchen's testimony is being offered only on Konstantin.” RA44.
“Yesterday we had Mr. Hatfield, who he testified on both cases and
then Dr. Strauchen who was Konstantin only, and now Dr. Spizman,
who is Konstantin only.” A723.
“the next evidence that the plaintiffs intend to offer are readings from
the deposition transcripts of Charles DeBenedettis in the Konstantin
case only.” A728.
20
D. The Distinctive Verdicts And The Remittitur Of Damages
Recognizing that these cases were separate, and to be sure that it understood
all the elements of the claims against TLC, during deliberations the jury requested
that the Labor Law charge be read back. A1007. It then returned a verdict finding
that TLC violated both codified and common law negligence, and that TLC acted
recklessly. A1137-40. The jury found that the three nonparty joint compound
manufacturers were equally liable, apportioning them 8% fault each with the
remaining 76% apportioned to TLC in light of its active and derivative negligence,
and its actual knowledge of the dangers. A1140-42. It awarded $7 million for 33
months of past pain and suffering, $12 million for 18 months of future pain and
suffering, and $550,157 for lost earnings. A1142. The awards were based on Mr.
Konstantin’s endurance of five surgeries (including the removal of his testicle and
scrotum), two rounds of chemotherapy, one round of radiation, severe mental
affliction, and metastasis of his cancer to his pleura, meaning his future pain and
suffering would be akin to having pleural and tunica vaginalis mesothelioma
simultaneously. A238-40, A359-73, A390, A461-80, A1077-98, RA9-31.
But, also in clear accord with the evidence at trial, the jury reached an
entirely different verdict in Dummitt, finding Crane and Elliott liable for failing to
warn with 99% fault to Crane and only 1% fault to Elliott, but not finding any
21
nonparties liable, awarding $16 million for both past and future pain and suffering,
and setting Mr. Dummitt’s life expectancy as only six months. A1126-35.
TLC moved to set aside the verdict on multiple grounds. A1099-1109.
Supreme Court granted TLC’s motion only to the extent of remitting damages to
$4.5 and $3.5 million for past and future pain and suffering, respectively (A64-94),
to which Plaintiffs stipulated. A1247-48. The remittitur in Dummitt, however, was
different, with the breakdown being $5.5 and $2.5 million for past and future pain
and suffering, respectively. See In re N.Y.C. Asbestos Litig. [Dummitt], 36
Misc.3d 1234(A) at *25-27 (Sup. Ct., N.Y. Cty., Aug. 20, 2012).
On November 19, 2012, judgment was entered against TLC in the pre-
interest sum of $6,448,580.34, after taking into account set-offs. A95-102.
6
E. The Appellate Division’s Affirmance
On appeal, TLC challenged, inter alia, the joint trial and the damages award,
but it did not challenge its liability. In a unanimous decision, the Appellate
Division, First Department affirmed the judgment. A7-63.
As to consolidation, the Appellate Division concluded that “[g]iving
deference to the trial court, as we must, and considering that the Malcolm factors
6
Appellant incorrectly states that the judgment was $8 million. See App. Br. at 2. The
remitted award was $8 million, but the judgment was reduced pursuant to General Obligations
Law 15-108.
22
are to be applied flexibly, we find that the trial court properly consolidated the
cases” (A26), as there were “more facts and issue in common than unique to each.”
A28. In light of the liberal construction of C.P.L.R. 602, the Appellate Division
weighed and evaluated the relevant factors in a rational manner (A24-28). It
concluded that the sequence of trial was a result of the closing hours policies, that
TLC’s claim of jury confusion was, at best, speculative considering the steps taken
by Supreme Court to minimize any unfairness, that “[u]ltimately, the verdicts
support the conclusion that consolidation was proper,” and that TLC’s assertion
that there is no longer a policy justification for consolidation of in extremis
asbestos actions was irrelevant and in derogation of C.P.L.R. 602. A28-31.
In a concurring opinion, Justices Friedman and DeGrasse agreed that the
judgment should be affirmed, but concluded that the consolidation issue should not
have been addressed in light of TLC’s inadequate Appendix. A49-52.
TLC moved the Appellate Division for reargument or, in the alternative,
leave to appeal. On December 9, 2014, the Appellate Division denied reargument,
but granted leave, certifying whether its order was properly made. A5-A6. Mrs.
Konstantin moved to dismiss this appeal, which was denied. See 24 N.Y.3d 1216.
23
ARGUMENT
I. THE APPELLATE DIVISION DID NOT COME REMOTELY
CLOSE TO ABUSING ITS DISCRETION AS A MATTER OF LAW
BY AFFIRMING THE JOINT TRIAL OF THESE TWO CASES
A. Appellant’s Argument That This Court Should “Bar” All Joint
Trials Of In Extremis Asbestos Actions Is A Patently Improper
Request For Judicial Legislation That Is Not Before This Court
Rather than addressing the merits of this appeal, Appellant’s first argument
asks this Court to “reconsider” whether in extremis asbestos actions should ever be
joined for trial. App. Br. at 4.
7
In so doing, Appellant makes speculative or, worse,
wholly misleading accusations, such as the policy grounds for the consolidation of
in extremis asbestos actions are no longer applicable to today’s “landscape,”
damages awards are purportedly bolstered by joint trials, other Legislatures – in
States that do not face the same burgeoning dockets as New York County Supreme
Court – have limited joint trials, and only in an individual trial can an asbestos
defendant prevail. This is a nothing more than a specious request to judicially
legislate in extremis asbestos actions out of the broadly-worded C.P.L.R. 602 – an
issue that is not before this Court and should not be considered.
Indeed, “[t]he courts in construing statutes should avoid judicial legislation;
they do not sit in review of the discretion of the Legislature or determine the
7
Point Heading I of Appellant’s Argument asserts that the liberally-construed statute
“bars” the consolidation of asbestos actions. App. Br. at 18. As an endowment of judicial
discretion, the statute does the exact opposite.
24
expediency, wisdom, or propriety of its action on matters within its powers.”
McKinney’s Statues 73; Russo v. Valentine, 294 N.Y. 338, 342 (1945) (“it is the
duty of the courts to give effect to statutes as they are written and [they] may not
limit or extend the scope of the statute…”).
C.P.L.R. 602(a) provides that “[w]hen actions involving a common question
of law or fact are pending before a court, the court, upon motion, may order a joint
trial of any or all the matters in issue, may order the actions consolidated, and may
make such other orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.” As noted by the Appellate Division, the statute makes
no distinction between types of “actions” that could be joined for trial or the type
of “common question of law or fact” that could warrant such joinder. A31. See
Uterhart v. Nat'l Bank of Far Rockaway, 255 A.D. 859, 859 (2d Dept., 1938)
(“[t]he liberal provisions of [the predecessor statute to C.P.L.R. 602] are not to be
limited by strict or literal construction, or by reason of mechanical difficulties”);
cf. Majewski v. Broadalbin-Perth Cent. School. Dist., 91 N.Y.2d 577, 587 (1998).
The word “actions” in the statute is broadly construed, encompassing the
consolidation of an action with a special proceeding (see C.P.L.R. 103, 105(b); see,
e.g., In re Elias, 29 A.D.2d 118, 119 (2d Dept., 1967)), an action at law with one in
equity (see Philip Shlansky & Bro. v. Grossman, 273 A.D. 544, 546 (1st Dept.,
1948)), actions involving distinct occurrences (see, e.g., Megyesi v. Auto. Rentals,
25
Inc., 115 A.D.2d 596, 596 (2d Dept., 1985)), and actions involving different
parties. See, e.g., Symphony, 12 N.Y.2d 409, supra at 410-11. In fact, the statute’s
“standard for uniting two separate actions is more liberal than that set forth in
C.P.L.R. 1002 for the joinder of” plaintiffs to a single action – the former only
requiring a common question whereas the latter requiring that any such
commonality arise out of the same transaction or occurrence. Alexander, Practice
Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, C.P.L.R. C602:1.
Inasmuch as the Legislature plainly intended C.P.L.R. 602 to apply to asbestos
actions, among other actions, Appellant’s plea to limit the statute’s scope should be
addressed to the Legislature. Cf. People v. Friedman, 302 N.Y. 75, 79 (1950).
It is telling, in this regard, that in the few jurisdictions that have limited joint
trials of asbestos actions, it was accomplished by Legislative action, not Judicial.
See, e.g., Ohio Civ. R. Rule § 42(A)(2); Ga. Code Ann. § 51-14-11; Kan. Stat.
Ann. § 60-4902(j); Tex. V.T.C.A. § 90.009; Miss. R. Civ. P. § 20 (precluding the
joint trial of any actions, not just asbestos, unless arising out of the same
transaction).
8
Appellant’s reliance on these statutes only underscores that judicial
8
Appellant disingenuously misstates the nature of purported “prohibitions” on
consolidation in other jurisdictions. App. Br. at 29. In San Francisco, for example, after the court
sua sponte consolidated asbestos actions, it subsequently vacated that determination, without
objection, on the basis that a sua sponte consolidation violated California procedural law,
averring that “[n]o case within any such group shall be considered part of a Code of Civil
Procedure section 1048(a) consolidation, unless a noticed motion is filed, a hearing conducted,
and an order issued, consistent with the procedures set forth in Cal. Rules of Court, Rule 3.350.”
(continued on next page…)
26
legislation of C.P.L.R. 602 to create an exception that unjustly benefits asbestos
defendants would be improper, especially where, by all indications, the statute’s
goals are met by the prudent consolidation of in extremis asbestos actions. Thus,
Appellant’s first argument should not even be considered.
Notwithstanding that, since Appellant’s request is predicated on skewed
statistics and pure conjecture that seek to assail the asbestos litigation as a whole,
Respondents feel compelled to address these assertions in at least some respect.
Lujan v. Asbestos Defendants, Case No. 05-444221 (Cal. Super. Ct., San Francisco Cty., May
14, 2008) (see App.’s Compendium of Unreported Authorities at 90-91). As to Delaware,
nowhere in the 2007 Standing Order cited by Appellant is there a bar on consolidation (see
App.’s Compendium of Unreported Authorities at 65-84). Instead, the Order provides that “the
setting of cases for trial is within the sole and exclusive province of the Court.” Id. at 73. In
Michigan, although a ban on “bundling” was implemented via Administrative Order (after a
public hearing) for an extremely small docket of asbestos actions (comprising approximately
2700 total), there was nonetheless strenuous dissents based on, inter alia, separation of powers
and the crushing burden such a rule would place on the court system. See Mich. R. Admin. Order
2006-6 (Weaver, J. dissenting to retention on June 19, 2007) (“I dissent to the retention of
Administrative Order No. 2006-6 because I remain unconvinced that this ‘antibundling’ order
falls within the scope of our judicial powers,” and noting, in dissenting to adoption on August 9,
2006, that the Order will require an additional 10 judges to handle the increased caseload)
(emphasis added); (Kelly, J. dissenting to adoption on August 9, 2006) (rather than restoring due
process, the Order “makes a mockery of due process and creates serious problems” because it
“virtually ensures that justice will be so delayed for many diseased plaintiffs that they will never
live to see their case resolved. It promises to force a sizable and needless increase in the funds
required to operate the circuit courts at a time when the state's economy is far from robust. And,
until new funds have been raised, unbundled asbestos-diseases cases will clog our courts'
dockets. The congestion will bring with it years of delay to individuals sick and dying of work-
related lung diseases.”). To this end, it is noteworthy that the asbestos dockets in the
jurisdictions that have limited consolidation via Legislative action are not even remotely close to
the size of the NYCAL docket, which is entirely commensurate with the populations in the
respective jurisdictions. See generally 2013 Census Data at http://quickfacts.census.gov.
27
i. Even assuming that the plain language of C.P.L.R. 602 was
not controlling, strong policy justifications support the
consolidation of in extremis asbestos actions
Joint trials are favored by the courts and by public policy. See Firequench,
Inc v. Kaplan, 256 A.D.2d 213, 213 (1st Dept., 1998). They should be used
“whenever possible” (Balz v. Kauffman & Minteer, Inc., 285 A.D. 1206 (3 Dept.,
1955)), as they greatly serve economy and foster settlement, particularly in
asbestos actions, which this Court has explicitly recognized. See Brooklyn Navy
Shipyard Cases, 82 N.Y.2d 821, supra (affirming the joint trial of 25 asbestos
actions “for reasons stated” by the Appellate Division), aff’g 188 A.D.2d 214.
In asserting that the modern-day “landscape” no longer supports the
consolidation of in extremis asbestos actions (App. Br. at 22-23), Appellant makes
two flawed assertions. First, it asserts that the number of asbestos actions being
filed is lower today than decades ago. While true as to non-malignancies,
9
such a
statistic is irrelevant to whether C.P.L.R. 602 endows trial courts with the broad
discretion to join asbestos actions for trial, as recognized by the Appellate
Division. A30-31. Notably, however, the number of cases joined for trial both 20
years ago and today is wholly commensurate with the number of cases filed.
Compare Brooklyn Navy Shipyard Yard, supra (25 cases providently joined in
9
Since “mesothelioma is a very rare tumor [and] there are only about 3,000 cases a year”
(RA4), the number of filings is inherently limited by the number of diagnoses, which simply
does not increase or decrease to any degree.
28
1993), with In re N.Y.C. Asbestos Litig. [Baruch], 111 A.D.3d 574, 574 (1st Dept.,
2013) (three cases providently joined in 2013).
Second, and more importantly, Appellant spuriously asks this Court to view
asbestos actions in a vacuum. The number of asbestos filings speaks nothing of the
overall size of the dockets that the Judges of New York County Supreme Court
must manage. The handful of Judges that preside over asbestos trials sit in general
assignment parts with burgeoning dockets.
10
As such, “barring” the consolidation
of asbestos actions would render administration of the entire New York County
Civil Part unworkable. See In re N.Y.C. Asbestos Litig. [Bauer], 2008 WL
3996269 at *3 (Sup. Ct., N.Y. Cty., Aug. 21, 2008) (“defendants…contend[] that
all ten cases must be tried separately. To do so would create a tremendous burden
for this court”); In re N.Y.C. Asbestos Litig. [Collura], 9 Misc.3d 1109(A) at *3
(Sup. Ct., N.Y. Cty., 2005) (noting “[t]he crushing burden that would be placed on
the Court by trying these cases one at a time…”). Thus, Appellant’s contention
that there is no longer a need for joint trials in today’s “landscape” is narrow-
minded. Judicial efficiency weighs heavily in favor of thoughtful consolidation in
instances, like here, that fall squarely within the statutory parameters. See Consorti
v. Armstrong World Indus., 72 F.3d 1003, 1006 (2d Cir., 1995) (“[i]f carefully and
properly administered…consolidation is also capable of producing, with efficiency
10
See http://courts.state.ny.us/courts/1jd/supctmanh/part_assignments.shtml
29
and greatly reduced expense for all parties, a fairer, more rational and evenhanded
delivery of justice”), vacated on other grounds 518 U.S. 1031 (1996).
Furthermore, consistent with the burgeoning dockets in New York County
and the dearth of Judges presiding over asbestos trials, consolidation serves an
important policy goal by helping to sustain accelerated trial preferences for
terminally-ill asbestos plaintiffs. See Brooklyn Navy Shipyard Cases, supra (joint
trials serve to speed the disposition of cases). Paragraph VIII(A)(1) of the NYCAL
CMO, in accordance with C.P.L.R. 3403(a)(6) and 3407, provides trial preferences
for dying asbestos plaintiffs. These preferences serve two important goals: first,
they provide the dying plaintiff with a chance to be present at his or her day in
court, which is a fundamental right of a litigant (cf. In re Raymond Dean L., 109
A.D.2d 87, 88 (4th Dept., 1985); Soto v. Maschler, 24 A.D.2d 893, 893 (2d Dept.,
1965) (trial preference proper where plaintiff “will not survive the waiting period
caused by the calendar delay”); and second, they serve to “enrich what little
remains of the plaintiff's life” by providing an “earlier recovery.” Siegel, Practice
Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, C.P.L.R. C3403:4.
The average life expectancy of a person suffering from malignant
mesothelioma, however, is just 12 to 18 months from the date of diagnosis. A475.
Thus, even with a trial preference, a dying asbestos plaintiff’s ability to be present
at his or her trial is a desperate race against time. Without sensible consolidation,
30
it would be virtually impossible for a terminally-ill asbestos plaintiff to be present
at his or her day in court, thereby frustrating – or effectively abrogating – the spirit
and letter of the CMO and C.P.L.R. article 34. See Bauer, 2008 WL 3996269,
supra (individual trials “would severely delay and prejudice the plaintiffs”).
Therefore, the consolidation of in extremis asbestos actions continues to be
undergirded by strong public policy.
ii. Joint trial determinations for terminally-ill asbestos
plaintiffs are the product of fair and balanced consideration
rather than a rubber stamp
Although Appellant correctly notes, as the Appellate Division did, that the
consolidation of in extremis asbestos actions has been “routine,” it does not follow
that “routine” equates to pro forma. Rather, the routine nature of consolidation
springs from the fact that in extremis asbestos actions generally share significant
common questions of law and fact. See C.P.L.R. 602(a). Belying Appellant’s
intimation of a rubber stamp is that when no such commonalities exist, or when
individual issues predominate, it is also “routine” for consolidation to be denied.
See, e.g., Bischofsberger v. A.O. Smith Water Prods, 2012 WL 4462393 (Sup. Ct.,
N.Y. Co., Sept. 20, 2012); In re N.Y.C. Asbestos Litig. [Adler], 2012 WL 3276720
31
(Sup. Ct., N.Y. Cty., Aug. 7, 2012) (plaintiff Vega tried individually due to unique
exposure as an “infant bystander”).
11
Defendants in this litigation have, in fact, been successful in virtually every
joint trial application in arguing that individual issues predominate for certain
actions. See, e.g., In re N.Y.C. Asbestos Litig. [Babravich], 2014 WL 2116092
(Sup. Ct., N.Y. Cty., May 16, 2014) (three of eight plaintiffs tried individually,
with the remaining five split into joint trials of three and two); In re N.Y.C.
Asbestos Litig. [Carlucci], 2013 WL 5761459 (Sup. Ct., N.Y. Cty., Oct. 17, 2013)
(four of seven tried individually due to “unique” exposures, with the remaining
three joined for trial). Clearly, the conscientious Judges of New York County
Supreme Court are evenhandedly weighing the rights of all parties in determining,
in their broad discretion, whether and to what extent to consolidate in extremis
asbestos actions. By insinuating that “routine” is tantamount to a rubber stamp,
Appellant unfairly criticizes our Judges who have taken great care to ensure that
joint trial applications are determined in a balanced and fair manner.
11
Appellant highlights Vega as an individual trial where a defense verdict was rendered.
See App. Br. at 27. Since Vega’s “infant bystander” exposure predominated over any
commonalities, the case was tried individually. The defense verdict can be easily explained by
the extreme difficulty in proving such a unique claim, rather than by a bald assertion that only in
an individual trial can defendants receive a fair trial.
32
iii. Appellant’s speculative and immaterial “bolstering”
argument is predicated on slanted statistics and ignores that
defendants have prevailed in joint trial settings
Appellant’s speculative assertion that joint trials bolster damages awards is
challenged by its own chart, which shows that the damages award in the
individually-tried Hillyer action – $20 million – was higher than the damages
award in the case at bar – $19 million – and that verdicts in certain joint trials
(McCloskey, Terry, Brown and Paolini, Michaelski) were significantly lower than
the verdicts in many of the cases tried individually. See App. Br. at 27. More
importantly, Appellant’s chart is self-servingly inaccurate. It fails to include, for
instance, the verdicts in Croteau v. AC & S, Index No. 118793/01 (Sup. Ct., N.Y.
Cty. 2008) ($43.1 million) and Brown v. AC & S, Index No. 120595/00 (Sup. Ct.,
N.Y. Cty. 2002) ($53 million), both cases tried individually. Appellant only
vaguely recognizes in a footnote that the $35 million award in In re N.Y.C.
Asbestos Litig. [Peraica], 2013 WL 6003218 (Sup. Ct., N.Y. Cty., 2013) involved
a case tried individually after the resolution of all other joined cases, which can
hardly be attributed to a joint trial setting. Even the Dietz case, identified by
Appellant as an individually-tried defense verdict, was initially joined for trial with
another case that resolved. See In re N.Y.C. Asbestos Litig. [Cole], 2010 WL
2486146 (Sup. Ct., N.Y. Cty, June 10, 2010) (joining Dietz and Pierce actions).
33
What is worse, Appellant’s chart ignores that defense verdicts were rendered
in some of the very joint trials identified, among others not identified. In the
McCloskey, Terry, and Brown joint trial, for example, the jury found in favor of
the McCloskey plaintiff as to one trial defendant but found no liability as to the
other three trial defendants; and, strikingly, the same defendant that was found
liable in the McCloskey case was found not liable in the jointly-tried Brown case.
See McCloskey v. A.O. Smith Water Products, 2014 WL 4311725 (Sup. Ct., N.Y.
Cty., Aug. 29, 2014). And in a joint trial not identified by Appellant, one plaintiff
was awarded $25 million while the other received a defense verdict. See In re
N.Y.C. Asbestos Litig. [D=Ulisse], 16 Misc.3d 945 (Sup. Ct., N.Y. Cty., 2007).
These results wholly undermine Appellant’s blanket assertion of unfairness from a
joint trial setting, and highlight the skewed nature of Appellant’s chart.
12
12
Appellant cites two law review articles to support its bolstering assertion. App. Br. at
28. Those articles, however, involve either an analysis of an 80-case joint trial where the
commentators note that the massive size of the distal plaintiff population influenced the damages
awards (see Kenneth S. Bordens & Irwin A. Horowitz, The Limits of Sampling and
Consolidation in Mass Tort Trials: Justice Improved or Justice Altered?, 22 L. & Psychol. Rev.
43, 45, 55 (1998)), or state that plaintiffs are more likely to win joint trials because “jurors are
likely to feel sympathetic to non-disabled plaintiffs when severely disabled plaintiffs' claims are
considered at the same trial.” Michelle J. White, Why the Asbestos Genie Won't Stay in the
Bankruptcy Bottle, 70 U. Cin. L. Rev. 1319, 1337 (2002). Joint trials in NYCAL, however, do
not involve 80 cases and do not encompass non-disabled and terminally-ill plaintiffs. In fact, our
Judges have done precisely what Bordens & Horowitz suggest, namely, “to develop a
jurisprudence of sampling that not only speeds resolution of mass tort cases but also respects the
integrity of adjudication.” 22 Law & Psychol. Rev. 43, supra at 66.
34
Simply put, there is not a shred of evidence that joint trials bolster damages
awards; in fact, the opposite is likely true. Cf. Consorti, 72 F.3d 1003, supra at
1007 (“when each case is tried before a different jury, the relationship between the
size of one judgment for intangibles and another will be largely happenstance”).
Yet, even assuming there is any truth to a “bolstering” claim, the fact that
defendants get two bites at the apple to remit damages – from both Supreme Court
and then again from the Appellate Division – ensures that no “miscarriage of
justice” can result from an excessive jury award, rendering this issue academic.
United States v. Solomonyan, 451 F. Supp.2d 626, 649-50 (S.D.N.Y. 2006) (“[a]
defendant raising a claim of prejudicial spillover…must show that [it] may suffer
prejudice so substantial that a ‘miscarriage of justice’ will occur”).
13
Therefore, to the extent Appellant’s request for judicial legislation is
considered, it is wholly unsupported in law, fact, or policy.
13
Instead of acknowledging that the power of remittitur limits damages to reasonable
compensation, Appellant makes the conclusory and highly troubling assertion that because the
“baseline” damages awards are “inflated,” Supreme Court and the Appellate Division have been
robotically inflating the remitted damages awards. App. Br. at 48, n.25. To the contrary, even a
cursory review of remitted awards disproves any alleged “inflated baseline” trend. Compare
Penn v Amchem Products, 85 A.D.3d 475, 476 (1st Dept., 2011) ($16.22 million to $3.76
million), with In re N.Y. Asbestos Litig. [Marshall], 28 A.D.3d 255, 256 (1st Dept, 2006) ($8
million to $3 million, and $14 million to $4.5 million, respectively); see also Hackshaw v ABB,
Inc., 2015 WL 246547 (Sup. Ct., N.Y. Cty., 2015) ($10 million to $5 million).
35
B. Appellant’s Challenge To The Two-Case Joint Trial Ruling Is
Unpreserved
Although TLC’s appeal from the judgment brings up for review the original
consolidation order that joined seven cases for trial (see C.P.L.R. 5501(a)(1)),
Appellant is clearly not appealing from that order, as it does not discuss the merits
of consolidating the seven cases and does not include in its Appendix the motion
papers upon which that order was based.
14
This order, importantly, did not address the consolidation of just Konstantin
and Dummitt. Instead, there was a trial ruling that the joint trial of “these two
cases” was provident. A447-48. See City of Elmira v. Larry Walter, Inc., 111
A.D.2d 553, 553 (3d Dept., 1985) (“[d]ecisions made by a court during the course
of a trial are deemed to be rulings, not orders”). To preserve this issue for appeal,
Appellant was required to object to the ruling. See C.P.L.R. 5501(a)(3) (“[a]n
appeal from a final judgment brings up for review…any ruling to which the
appellant objected…”); Darwak v. Benedictine Hosp., 247 A.D.2d 771, 772 (3d
Dept., 1998) (“although the record does contain various references to the fact that
this was a bifurcated trial, it fails to reflect that plaintiff objected to this procedure.
14
Appellant’s conscious decision not to challenge the original order joining seven cases
for trial is enlightening as to its own opinion regarding the providence of a joint trial of just two
of those seven cases.
36
Having failed to do so, plaintiff has not preserved this issue for review.”); Meyers
v. Fifth Ave. Bldg. Associates, 90 A.D.2d 824, 825 (2d Dept., 1982).
Here, the record is plain that Appellant never once objected to the joint trial
ruling.
15
In fact, Appellant did not even join in the Dummitt defendants’
objections:
[CRANE’S COUNSEL]: …we renew our objection to
consolidation of these actions….we believe it’s prejudicial to
have these two cases combined…
[ELLIOTT’S COUNSEL]: Counsel for Elliott joins in the
objection of the consolidation.
THE COURT:…Regarding your objection to the consolidation
of the two different types of mesothelioma, I find that the
limiting and explanatory instructions, which I have given
throughout the trial, which I have just indicated I will against
instruct the jury as to the testimony of Dr. Markowitz and Dr.
Moline specifically that testimony as to which plaintiffs the
testimony is being offered to, will assist the jury in
distinguishing the issues.
[COLLOQUY OMITTED]
THE COURT: I will note as to the fact the defendants have
objected to the consolidation of the actions for trial from the
inception.
[CRANE’S COUNSEL]: Thank you, Your Honor.
15
Although Respondents’ motion to dismiss this appeal was denied, they did not move
on preservation grounds.
37
A447-49 (emphasis added). Appellant disingenuously attempts to bootstrap itself
to the Dummitt trial defendants’ objections. See App. Br. at 10. But TLC fails to
point to any part of the record where it “objected to the consolidation.” A449.
Only the Dummitt defendants did so “from the inception”:
[CRANE’S COUNSEL]: Your Honor, last point before we
open is, I feel compelled to raise the issue of this consolidated
trial again.
A169.
16
Buttressing Appellant’s conscious choice not to object is its use of
consolidation to bolster its own case, prompting the Dummitt defendants to object:
[TLC’S COUNSEL]…We're not a manufacturer.
You heard from Crane and Elliott and all these other companies
that were involved on the ships. Tishman is not a manufacturer,
seller, supplier –
[CRANE’S COUNSEL]: Your Honor, I have to object. This is
a consolidated case. The cross references, I apologize.
A934.
17
Consequently, Appellant took no issue with the two-case joint trial until
after a verdict was rendered against it (A1099-1109), which makes this issue
16
Although defendant Crane Co. properly preserved this issue, it apparently did not find
it to be of sufficient error to challenge it on appeal. When two defendants conflict as to the
providence of an adverse determination of discretion, there should be an inherent presumption
that the act did not rise to the level of constituting an abuse of discretion as a matter of law.
17
It is ironic that Appellant makes a “bolstering” argument when in fact the only
bolstering was Appellant’s affirmative attempt to strengthen its own position by differentiating
itself from the trial defendants in the Dummitt action.
38
unpreserved for review. See C.P.L.R. 5501(a)(3); Grzesiak v. General Elec. Co.,
68 N.Y.2d 937 (1986) (challenge “not raised until its posttrial motion…is not
preserved for review”).
C. The Standard Of Review Is Limited To The Legal Question Of
Whether The Appellate Division’s Affirmance Constituted An
Abuse Of Discretion As A Matter Of Law
Should this issue be considered, it is telling that not once in its Opening
Brief does Appellant mention the limited standard of review, i.e., whether the
Appellate Division’s affirmance constituted an abuse of discretion as a matter of
law. See Brady, 63 N.Y.2d 1031, supra at 1033 (“appellants do not even claim”
that the decision was “an abuse as a matter of law”).
Supreme Court is invested with “broad discretion to order consolidation”
under C.P.L.R. 602. See Vigo, 26 N.Y.2d 157, supra at 162. In Maul (14 N.Y.3d
499, supra at 514), this Court underscored the limited nature of its standard of
review when acts of broad discretion are affirmed:
The determination of whether a lawsuit qualifies as a class
action under the statutory criteria “ordinarily rests within the
sound discretion of the trial court” (Small v. Lorillard Tobacco
Co., 94 N.Y.2d 43, 52, 698 N.Y.S.2d 615, 720 N.E.2d 892
[1999] ). The Appellate Division likewise “is vested with the
same discretionary power and may exercise that power, even
when there has been no abuse of discretion as a matter of law
by the nisi prius court” (id. at 52–53, 698 N.Y.S.2d 615, 720
N.E.2d 892; see also Matter of State of New York v. Ford
Motor Co., 74 N.Y.2d 495, 501, 549 N.Y.S.2d 368, 548
N.E.2d 906 [1989] ). Our standard of review, however, is far
39
more limited. Where, as here, the Appellate Division affirms a
Supreme Court order certifying a class, we may review only
for an abuse of discretion as a matter of law.
Id.; see also Andon, 94 N.Y.2d 740, supra at 745-46 (standard of review for
discretionary acts is whether they amounted to an abuse of discretion as a matter of
law); Weinberg v. Hertz Corp., 69 N.Y.2d 979, 982 (1987).
This standard of review is so limited, in fact, that “to date, this Court has not
found an abuse of discretion as a matter of law in the CPLR article 9 class
certification context.” Maul, supra at 510, n.7. Nor has this Court ever found that
it was an abuse as a matter of law to have granted consolidation under C.P.L.R.
article 6. See Brooklyn Navy Shipyard Cases, 82 N.Y.2d 821, supra; Vigo, 26
N.Y.2d 157, supra; Symphony Fabrics, 12 N.Y.2d 409, supra.
18
Importantly, since this is a “legal, rather than factual, review” (People v.
Jones, 24 N.Y.3d 623, 629 (2014)), where this Court is “satisfied that the Appellate
Division properly weighed the relevant statutory factors and correctly fulfilled its
intermediate appellate court role and powers,” the determination cannot rise to the
level of being an abuse as a matter of law. Maul, supra at 509. Under this limited
18
Notably, the standard for joining cases for trial under C.P.L.R. 602 – “common
question of law or fact” – is broader than the standard for class certification under C.P.L.R. 901
– “questions of law or fact common to the class which predominate over any questions affecting
individual members.” As such, the burden to show an abuse of discretion as a matter of law for a
consolidation determination should be, in essence, greater than for a class certification
determination. Cf. Maul, supra at 511, n.8 (comparing C.P.L.R. 901 to the broader Federal Rule
C.P. 23(a)(2), which, like consolidation, only requires that there be “questions of law or fact
common”).
40
standard of review, there is “no reason to disturb th[e] inherently discretionary
determination” affirming the Dummitt and Konstantin joint trial. Weinberg, supra.
D. The Joint Trial Affirmance Was Not An Abuse Of Discretion, Let
Alone An Abuse Of Discretion As A Matter Of Law
Since it is clear that the Appellate Division weighed the relevant statutory
considerations (A19-28), and evaluated whether any prejudice to Appellant’s
substantial right resulted from the joint trial (A28-30), it “correctly fulfilled its
intermediate appellate court role and powers,” and thus its determination does not
rise to the level of constituting an abuse of discretion as a matter of law. Maul,
supra at 509; Andon, 94 N.Y.2d 740, supra (“we are satisfied that the Appellate
Division did not abuse its discretion as a matter of law” where it “evaluated
defendants' request in the context of this case and in light of the evidence presented
to it”); Symphony Fabrics, 12 N.Y.2d 409, supra at 413 (“court below properly
exercised the discretion vested in it by statute”). Therefore, this Court need not
pass on any other issue as to consolidation. See Brady, 63 N.Y.2d 1031, supra at
1033 (where appellant does not claim an abuse as a matter of law, “[t]he only issue
presented by the question certified is whether the Appellate Division had the power
to deny the discovery motions in the exercise of its own discretion. We conclude
that the Appellate Division had that power, and pass on no other issue”).
41
In any event, the Appellate Division was well within its discretion in
affirming the joint trial. A plain reading of the statute provides that a trial court
may order a joint trial if there is “a common question of law or fact.” C.P.L.R.
602(a) (emphasis added); Chiacchia v. Nat'l Westminster Bank USA, 124 A.D.2d
626, 628 (2d Dept., 1986) (“[a] single common issue suffices”); Harby Associates,
Inc. v. Seaboyer, 82 A.D.2d 992, 993 (3d Dept., 1981) (“[e]ach and every factual
and legal issue need not be identical…A single common issue will suffice…”); cf.
Weinberg v. Hertz Corp., 116 A.D.2d 1, 6 (1st Dept., 1986) (C.P.L.R. 901 “clearly
envisions authorization of class actions even where there are subsidiary questions
of law or fact not common to the class”), aff’d 69 N.Y.2d 979, supra.
As to consolidation of in extremis asbestos actions, New York courts have
generally looked to the eight factors set forth in Malcolm (995 F.2d 346, supra) as
a “useful guideline” in an effort to “strike an appropriate balance.” Id. at 350-51.
The factors include (1) worksite, (2) occupation, (3) time of exposure, (4) type of
disease, (5) whether Plaintiffs are living or deceased, (6) status of discovery, (7)
same counsel, and (8) type of cancer. Id. at 351-52. Clearly, these factors, which
are simply “suggested,” must be applied flexibly, as some factors may be
applicable to a particular consolidation while others may not, and factors beyond
these eight may also be pertinent. In re N.Y.C. Asbestos Litig. [Altholz], 11
42
Misc.3d 1063(A) at *2 (Sup. Ct., N.Y. Co., 2006); see also In re N.Y.C. Asbestos
Litig. [Ballard], 2009 WL 9151160 at *3-4 (Sup. Ct., N.Y. Cty., Sept. 9, 2009).
To this end, Appellant erroneously bases its argument on a mechanical
application of the Malcolm factors, strangely referring to the Appellate Division’s
evaluation here as a “highly permissive standard,” as if to intimate that a balancing
test of broad discretion should not be a discretionary test at all. See Maul, 14
N.Y.3d 499, supra at 514 (“we recognize that commonality cannot be determined
by any ‘mechanical test’ and that ‘the fact that questions peculiar to each
individual may remain after resolution of the common questions is not fatal…’”);
In re N.Y.C. Asbestos Litig. [Assenzio], 2013 WL 1774051 at *3 (Sup. Ct., N.Y.
Cty., April 17, 2013) (“[s]uch a strict construction [of Malcolm] would undermine
the purpose of consolidation”); Consorti, 72 F.3d 1003, supra at 1006 (defendant
“treats Malcolm as establishing a strong anti-consolidation bias. We take pains to
emphasize that we have made no such suggestion”).
19
Appellant’s strict
construction is the antithesis of a determination left to the sound discretion of the
trial court. See People v. Duffy, 44 A.D.2d 298, 305 n.2 (2d Dept., 1974), aff’d 36
N.Y.2d 258 (1975) (“the very nature of judicial discretion precludes rigid standards
19
The Malcolm factors have been applied flexibly for more than 20 years, and have
resulted in scores of joint trial determinations in New York County. Even a cursory review of
that extensive body of caselaw provides substantial guidance for all parties involved in this
litigation as to which factual and legal considerations support joint trials and which do not.
43
for its exercise”) (citing Gordon v. United States, 383 F.2d 936, 941 (D.C. Cir.
1967)); Black’s Law Dictionary at 419 (5th ed.) (defining “discretionary acts” as
“[t]hose acts wherein there is no hard and fast rule as to course of conduct that one
must or must not take and, if there is clearly defined rule, such would eliminate
discretion”).
Thus, great deference should be accorded to the trial court, particularly
where, like here, consolidation has been demonstrated to work. Cf. People v.
Morris, 21 N.Y.3d 588, 597 (2013) (a “case-specific, discretionary exercise
remains within the sound province of the trial court, which is in the best position to
evaluate the evidence”); Plummer v. Rothwax, 63 N.Y.2d 243, 250 (1984)
(“failure of reviewing courts to accord great deference to a Trial Judge’s
decision…might well encourage a needless waste of judicial resources…”);
Baruch, 111 A.D.3d 574, supra at 574; In re Seventh Judicial Dist. Asbestos Litig.
[Wambach], 190 A.D.2d 1068 (4th Dept., 1993). Unless it is clear that individual
issues predominate, a discretionary consolidation decision should not be disturbed.
See In re N.Y.C. Asbestos Litig. [Bernard], 99 A.D.3d 410 (1st Dept., 2012). To
hold otherwise would result in the micromanagement of Supreme Court’s ability to
make discretionary determinations, which this Court has declined to do in
substantially similar circumstances. See, e.g., Maul, supra at 513-14 (class
certification); Akely v. Kinnicutt, 238 N.Y. 466, 476 (1924) (joinder of plaintiffs).
44
Against this backdrop, even assuming Appellant had alleged an abuse of
discretion as a matter of law, it has utterly failed to establish one.
i. Numerous common questions of law and fact supported the
joint trial
Considering that numerous common questions of law and fact exist between
these cases, it cannot be said that the joint trial affirmance was an abuse of
discretion as a matter of law. See Akely, supra at 473 (concluding, as to common
issues of law and fact for 193 plaintiffs under the joinder statute, that “it cannot be
said by us as matter of law in this case that there are not present in each cause of
action common issues which amply satisfy the test of the statute,” even where the
separate issues “may equal in number the common ones”).
1. Since the only claims asserted in both cases sounded in
negligence, and both cases involved failure to warn
claims, multiple common questions of law supported the
joint trial
Inasmuch as both cases involved only negligence claims, and both
specifically involved negligent failure to warn claims regarding product
manufacturers, multiple common questions of law supported the joint trial. In
Harby (82 A.D.2d 992, supra at 992-93), which Appellant relies upon, the Third
Department concluded that “those causes of action couched generally in
45
negligence…present similar legal issues of liability and should have been joined
under a liberal construction of CPLR 602 to simplify practice” (emphasis added).
Here, the legal claims in both cases are “couched generally in negligence.”
Labor Law 200 is the codification of common law negligence. See Allen v.
Cloutier Constr. Corp., 44 N.Y.2d 290, 298 (1978). A failure to warn claim “is
indistinguishable from a negligence claim.” Enright v. Eli Lilly & Co., 77 N.Y.2d
377, 387 (1991). As such, both claims share common liability elements. Compare
P.J.I. 2:120, with P.J.I. 2:216. The Appellate Division therefore appropriately
concluded that these common elements “predominate[d] over any tangential
elements inherent in the different theories.” A28.
20
Indeed, numerous legal issues common to both cases were addressed at trial.
See, e.g., RA7 (“the motion is similar, I believe, in both. And we join in the
arguments”), RA70 (“we join in the applications, for the record, made by Crane”),
RA72, RA84, RA89. It was certainly economical to decide these common
questions of law once rather than twice.
What is more, in claiming that the cases have “no” common issues of law,
Appellant wholly ignores that its own C.P.L.R. article 16 case was predicated on
20
Distinctions in legal claims have predominated over commonalities mainly in instances
where a difference in burden of proof would lead to confusion. For example, a FELA claim has
a greatly relaxed proximate cause burden (see Consol. Rail Corp v Gottshall, 512 U.S. 532, 543
(1994)), and thus has not been consolidated with actions involving failure to warn claims. See
Adler, 2012 WL 3276720, supra.
46
failure to warn claims asserted against the nonparty joint compound manufacturers.
A979, RA79, RA81. See C.P.L.R. 1601, 1603.
21
Indeed, the jury charge and
liability interrogatories for both the defendant manufacturers in Dummitt and the
nonparty manufacturers in Konstantin were identical. A954-66, A979-80, A1126-
33, A1140-41. Moreover, the Dummitt trial defendants attempted to assert
premises liability claims against nonparty shipyards. RA42, RA67-68. Thus, both
cases involved products liability claims and, to an extent, premise liability claims,
in addition to recklessness claims under C.P.L.R. 1602(1)(a)(7). Clearly, common
questions of law supported the joint trial, and there was no abuse of discretion as a
matter of law in affirming it.
22
In this regard, since both Labor Law and failure to warn claims were
asserted in Konstantin, even had this case been tried individually, products liability
questions of law would have still arisen, which eliminates any notion of prejudice
from the joint trial format. See Symphony Fabrics, 12 N.Y.2d 409, supra at 413 (no
prejudice where the issue will arise “[w]ith or without a consolidation”). Accepting
21
It is noteworthy that Mr. Konstantin asserted negligent failure to warn claims against
these joint compound manufacturers, but resolved those claims prior to trial. This underscores
that both cases inherently involved products liability claims.
22
Appellant attempts to create a legal distinction by claiming that a government
contractor defense was asserted in Dummitt. No such claim, however, was legally viable. RA92.
And even assuming arguendo that it was, it did not predominate over the substantial
commonality of legal and factual elements. See In re N.Y.C. Asbestos Litig. [Batista], 2010 WL
9583637 (Sup. Ct., N.Y. Cty., Feb. 19, 2010) (difference between government contractor defense
and State failure to warn claim did not predominate over commonalities).
47
Appellant’s argument would lead to the illogical conclusion that different claims
asserted in a single case should be severed from each other. See In re Eighth
Judicial Dist. Asbestos Litig. [Seymour], 106 A.D.3d 1453 (4th Dept., 2013)
(denying severance of claims for a single plaintiff who had both asbestos and coal
fume exposure that caused separate diseases). This is diametrically contrary to the
purpose of consolidation, namely, to promote economy rather than thwart it.
At worst, any minor differences in the legal claims are not so disparate as to
predominate over the other substantial common issues. Cf. Bernard, 99 A.D.3d
410, supra at 411 (differences in laws of two jurisdictions did not predominate).
2. Both Plaintiffs suffered the same “type of asbestos
exposure,” to wit, an occupational, products-based
exposure
Consistent with the liberally-construed statute and Malcolm’s function as a
mere “guideline,” the overarching consideration when considering the first two
Malcolm factors – worksite and occupation – has been determined to be the “type
of asbestos exposure each plaintiff is claiming...” In re N.Y.C. Asbestos Litig.
[Conti], 2011 WL 1826854 (Sup. Ct., N.Y. Cty., May 2, 2011) (emphasis added).
Contrary to Appellant’s assertion, this does not render these factors
meaningless, as there are numerous “types of asbestos exposure” other than
products-based or even occupational. These include (1) exposure to raw fiber from
mining or processing, (2) environmental exposure from living in the vicinity of a
48
factory or mine, (3) consumer-based exposure from home renovations or from talc
products or from smoking cigarettes that utilized asbestos filters, and (4)
secondhand exposure from the contaminated clothing of a family member. Where
cases involving these other “types” of asbestos exposure are sought to be joined
with occupational, products-based exposures, this consideration may predominate,
depending on the balance of other factors. See, e.g., Bischofsberger, 2012 WL
4462393, supra (plaintiff alleging occupational, products-based exposure not
consolidated with plaintiff alleging secondhand exposure from laundering her
husband’s contaminated work clothes); In re N.Y.C. Asbestos Litig. [Barnes], 2008
WL 1730004 (Sup. Ct., N.Y. Cty., Apr. 7, 2008) (“Montross case should be tried
separately, because she was the only Plaintiff, as a consumer, to have experienced
exposure to asbestos-containing filters from smoking original Kents in the
1950's”). Indeed, since many of the aforementioned types of exposure are non-
occupational, the “worksite” and “occupation” factors may be entirely irrelevant to
some joint trial applications, and thus are clearly suited to a flexible construction
rather than a strict one. See Ballard, 2009 WL 9151160, supra (“that the plaintiffs
never shared a common worksite with each other is not itself a bar to joinder”).
Here, as recognized by the Appellate Division (A26-27), both Plaintiffs had
“fundamentally” the same type of asbestos exposure, namely, occupational,
products-based exposure – Mr. Dummitt to gaskets, packing, and insulation
49
products and Mr. Konstantin to joint compound products (A306-13, A346-49,
A430, A748-827). See Assenzio, 2013 WL 1774051, supra (consolidating actions
involving joint compound exposure with actions involving other products-based
exposures); Batista, 2010 WL 9583637, supra (same); Ballard, supra (same). This
led to shared testimony regarding the methods for measuring dust release from the
manipulation of products. A723, A679-713.
This common question supported the joint trial, and it likely led to a fairer
result. See In re Asbestos Litig. [McPadden], 173 F.R.D. 87, 91 (S.D.N.Y. 1997)
(“nor does [individualized work-site evidence] establish that a properly instructed
jury would be unable to evaluate the working conditions and degree of exposure at
the job sites of different plaintiffs less fairly...Consolidation may even lead to a
fairer result if it enables a jury to compare one worksite to another.”) (brackets in
original). Thus, there was no abuse of discretion as a matter of law.
3. The state-of-the-art evidence was identical for both cases
Appellant either misinterprets the nature of state-of-the-art evidence or seeks
to mislead this Court. Appellant correctly notes that the state-of-the-art is “defined
in terms of whether the dangers of asbestos were reasonably foreseeable or
scientifically discoverable at the time of plaintiff's exposure.” App. Br. at 33 (citing
George v. Celotex Corp., 914 F.2d 26, 29 (2d Cir., 1990). But it completely
50
disregards that “dangers of asbestos” is stated generally, that “foreseeability” is a
broad principle (see P.J.I. 2:12), and that the focus is on the “time” of exposure.
Whether a defendant knew or should have known of the “dangers of
asbestos” is implicated in both a negligent failure to warn claim (see Liriano v.
Hobart Corp., 92 N.Y.2d 232, 242-43 (1998)), and a Labor Law 200 claim. See
Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 353 (1998) (“it is inferable
that defendant knew or should have known of the danger to plaintiff”); Dube v.
Kaufman, 145 A.D.2d 595, 596 (2d Dept., 1988). As a result, constructive
knowledge that asbestos was hazardous in some other product, or in some other
industry, or even that asbestos caused some other disease, could trigger a
defendant’s duty with respect to the “should have known” prong of a negligence
claim, as noted by Supreme Court here. A338-39 (“in the beginning of the trial I
gave you certain instructions and I referred to something as state-of-the-art
evidence. And part of the issues that you are going to be asked to determine is what
Tishman knew or should have known about the dangers of asbestos at the time Mr.
Konstantin worked at these two projects.”); RA41 (“In terms of the state of the art,
it is what the defendants knew, or should have known.”).
Consequently, the state-of-the-art evidence in asbestos actions is not
industry-specific, case-specific, or defendant-specific; rather, it is time-specific.
See In re Asbestos Litig., 2011 WL 5118158 (Sup. Ct., N.Y. Cty., Sept. 7, 2011)
51
(“[t]he state of the art testimony will be substantially identical for all four of them
in the 1960s and 1970s”); Conti, 2011 WL 1826854, supra at *5-6 (“common and
overlapping state-of-the-art testimony will be necessary in all 8 cases”); In re
N.Y.C. Asbestos Litig. [Capozio], 22 Misc. 3d 1109(A) (Sup. Ct., N.Y. Cty., 2009)
(“Plaintiffs had such exposures during the 1960s which…will result in the same
state-of-the-art”).
23
Supreme Court expressly reiterated this axiom multiple times:
it's not within the industry, it's the state of the art knowledge,
it's the state of the art; and that was known not only within the
industry but within relevant other fields such as medical and
technological fields, which the jury may also consider. It's for
you to weigh the evidence that's been presented in this area, but
you're not limited to what was known within the industry.
RA74-75 (emphasis added); see also A179, A884, RA65-67. Even Dr. Castleman
– the leading asbestos state-of-the-art scholar in the world – affirmed this principle
during cross examination. A623-24.
24
23
Appellant cites only a single instance where it was stated, albeit incorrectly, that the
state-of-the-art is industry-specific. See In re N.Y.C. Asbestos Litig. [Abrams], 2014 WL
3689333 (Sup. Ct. N.Y. Cty., July 18, 2014). And the court nonetheless joined actions for trial.
24
In asserting that the “jury heard two sets of state-of-the-art evidence,” Appellant does
not cite trial evidence at all. App. Br. at 34. Instead, it cites to the jury charge, which does not
even support its assertion, particularly in light of Supreme Court’s express declarations to the
contrary. See George v Celotex, supra at 28-29 (duty to warn is not confined to industry practice
or what is knowable about a particular product).
52
Naturally, the state-of-the-art increases in breadth and accessibility over
time, such that there necessarily was a greater, more accessible knowledge of the
dangers of asbestos in, for example, the 1990s than there was in the 1940s.
Therefore, the critical inquiry in addressing this factor is the plaintiffs’ respective
last date of exposure. See, e.g., Assenzio, 2013 WL 1774051, supra at *4
(declining to join for trial a plaintiff with only 1990s exposure because “the state of
the art evidence applicable to Lieberman will be significantly different from that
which is applicable to the other plaintiffs”).
25
Here, since both Plaintiffs’ exposure periods ended in 1977 (A358, RA61),
the state-of-the-art testimony from Dr. Castleman was virtually identical for both
cases (RA3), as the Appellate Division plainly recognized. A27. Thus, had these
cases been tried individually, Dr. Castleman’s testimony would have been
duplicated, consuming twice the judicial resources at twice the cost to Plaintiffs.
See Collura, 9 Misc.3d 1109(A), supra at *3 (“state-of-the-art…can be greatly
diminished by having that testimony accomplished in one trial…”); Consorti, 72
F.3d 1003, supra at 1006. This common question clearly supported the joint trial,
and there was no abuse of discretion as a matter of law in affirming it.
25
Appellant oddly reasons that “duration” is the critical element “because the state of the
art as to asbestos varies over time.” App. Br. at 34. But that is precisely why the last date of
exposure, rather than duration, is the critical inquiry. Notably, in so arguing, Appellant further
misstates that Mr. Dummitt was exposed to asbestos for 15 years (see App. Br. at 34), when in
fact he was exposed for 17 years. A12, RA2.
53
4. Both Plaintiffs suffered from the same diseases and
cancer
Both Plaintiffs had mesothelioma and pleural plaques. Appellant seeks to
impose a hyper-distinction as to the disease and cancer factors that is inconsistent
with the liberal construction of C.P.L.R. 602 and Malcolm’s status as a
“guideline.” Indeed, the Malcolm Court made no distinction between locations of
the same disease. See id. at 351-52 (noting that plaintiffs suffered from asbestosis,
lung cancer, and mesothelioma, which were “three different diseases,” and as to
the “cancer” factor, that “[t]wo different types of cancer were alleged: lung cancer,
and mesothelioma”). Instead, the Malcolm Court noted that, like here, “[w]hen the
plaintiffs suffer from the same disease, the economy derived by not rehashing the
etiology and pathology of the particular disease will be great, while the
concomitant prejudice will be minimal.” Id.
The commonality between Mr. Dummitt’s and Mr. Konstantin’s asbestos-
caused mesotheliomas is perhaps best explained by Appellant’s own expert
witness, Dr. Siroky, who declared that “mesothelioma is mesothelioma” in
response to a question about the similarities between pleural, peritoneal, and tunica
vaginalis mesothelioma. A1075 (emphasis added). Appellant’s about-face is
completely contrary to the uncontested evidence at trial.
A mesothelioma is a cancer that can only arise in one of the four discrete
places in the body where mesothelial tissue is found: pleura (lining the lungs),
54
pericardium (lining the heart), peritoneum (lining the abdomen), and tunica
vaginalis (lining the testicles). A484-85.
26
Contrary to Appellant’s contention, all
mesotheliomas are exceedingly rare, with only 3,000 cases diagnosed each year.
RA4.
27
Although tunica vaginalis mesothelioma is rarer than pleural
mesothelioma, the medical principles are indisputably identical, including:
1. transmigration: asbestos is breathed into the lungs and migrates to the
pleural, pericardium, peritoneum, or tunica vaginalis via the lymph
nodes, bloodstream, or direct penetration of tissue. A486-88;
2. signal cancer: asbestos is the only known cause of mesothelioma in any
location of the body. A490-91, A498, A530;
28
3. latency: both have the characteristically-lengthy latency period –
generally 30-40 years between exposure and disease. A492, A494;
26
In fact, since the testes descend from the peritoneal cavity, the tunica vaginalis is
nothing more than the most distal extension of the peritoneum, comprising the same tissue.
A195, A484-85. This led Appellant’s own expert pathologist, Dr. Roggli, to classify Mr.
Konstantin’s cancer as a peritoneal mesothelioma, which he further noted was associated with
asbestos exposure. RA32-33. Appellant then withdrew Dr. Roggli as an expert in this case.
RA71.
27
Although there are only a few hundred reported cases of mesothelioma of the tunica
vaginalis in the scientific literature, both Dr. Markowitz and Appellant’s own trial counsel noted
that more cases existed. A490 (“There are additional cases, but they haven't been reported in the
medical literature”); RA80 (TLC’s counsel stating during summation that there were “probably
more than that in actuality”). This is a factor of the difficulty in diagnosing mesothelioma of the
tunica vaginalis – compared to pleural mesothelioma – prior to recent advancements in medicine
and science; it is not a factor of a difference in causation principles. Indeed, the percentage of
persons inflicted with both mesotheliomas that reported having asbestos exposure is comparable.
A492, A497, RA35-39.
28
Indeed, Mr. Konstantin, just like Mr. Dummitt, developed pleural plaques, which is a
scarring of the pleura caused by asbestos, and which is a marker for heavy exposure to asbestos.
RA5, RA45-56. This was yet another commonality in disease.
55
4. immunohistochemistry: the cancer cells of both react in the same
manner when stains are applied. A493;
5. histologically: the cancer cells for both look the same under a
microscope (A493, A529), i.e., “[i]t’s the same tumor….it’s the same
type of cell because it’s the same disease.” A494;
6. morphology: the cell structure of both is the same. A493-94;
7. etiology: the same causation process is used for both. A498;
8. incurability: both are terminal. A211;
9. treatment: both are treated with the same chemotherapy medications.
A477; and
10. epidemiological support: asbestos as a cause of both is supported by
epidemiological studies. A498-99, A566-67.
In short, “same tissue, same disease, same cancer” (A568-69) (emphasis added)),
and a mesothelioma is a mesothelioma regardless of where it presents. See
Bischofsberger, 2012 WL 4462393, supra (pleural and peritoneal mesothelioma
“are the same disease, albeit they present in different parts of the body”).
29
Furthermore, since a duty to provide a safe workplace is attendant to the
danger at issue, not the precise injury that the plaintiff developed (see P.J.I. 2:12)
29
The only case cited by Appellant to support its contention that mesotheliomas located
in different parts of the body are “distinct diseases” is a case involving a female plaintiff
suffering from peritoneal mesothelioma. See Adler, 2012 WL 3276720, supra. Peritoneal
mesothelioma in females could present a unique causation issue because certain reproductive
cancers can masquerade as a peritoneal mesothelioma. See Bischofsberger, supra (“Defendants
claim that they will present a defense, that peritoneal cancer in women is not caused by asbestos
exposure”); Barnes, 2008 WL 1730004, supra (defendant “contends that in many cases,
peritoneal mesothelioma in women is not causally linked to asbestos exposure”).
56
(“[t]he exact occurrence or exact injury does not have to be foreseeable”), even had
this case been tried individually, evidence regarding pleural mesothelioma would
have been elicited as part of the general asbestos medicine testimony and the state
of the art testimony. RA6. This eliminates any notion of prejudice from the joint
trial format. See Symphony Fabrics, 12 N.Y.2d 409, supra at 413 (no prejudice
where the issue will arise “[w]ith or without a consolidation”).
Nor is there any merit to Appellant’s claim that the two mesotheliomas
required different proofs of damages. App. Br. at 36-37. Damages are subjective,
so even two plaintiffs that suffer from pleural mesothelioma will have different
proofs of damages. See Caprara v. Chrysler Corp., 52 N.Y.2d 114, 127 (1981)
(“[i]n no two cases are the quality and quantity of such damages identical”). As
discussed infra, any purported prejudice due to Plaintiffs’ separate courses of pain
and suffering was alleviated by Supreme Court’s use of instructions and intelligent
management devices, and, in any event, is rendered moot due to the remittitur.
Here, since both Plaintiffs suffered from mesothelioma and pleural plaques,
a clear commonality existed, and the Appellate Division’s affirmance certainly was
not an abuse of discretion as matter of law. A27. At worst, any difference in the
location of Plaintiffs’ mesotheliomas is not so disparate as to predominate over the
other commonalities. See Barnes, 2008 WL 1730004, supra at *10 (“this Court is
not convinced the pathology and etiology of [pleural and peritoneal mesothelioma]
57
will be markedly disparate as to confuse the jury…”). Indeed, even the joinder of
actions involving separate diseases has been endorsed when other commonalities
balance in favor of a joint trial. See, e.g., Baruch, 111 A.D.3d 574, supra (joining
one plaintiff with mesothelioma and two with lung cancer was provident).
5. Both terminally-ill Plaintiffs were alive at the time of
trial
Both Mr. Dummitt and Mr. Konstantin were alive at the time of trial.
Despite acknowledging this, as it must, Appellant erroneously focuses on a
hairsplitting “health status” argument, since Mr. Konstantin testified at trial but
Mr. Dummitt testified via videotape. This strict construction was properly rejected
by the Appellate Division. A27 (“that Dummitt was too ill to appear in court does
not confer upon him a different ‘status’ from Konstantin for purposes of whether
consolidation was proper”) (emphasis added).
As such, Appellant’s argument is, in actuality, addressed to prejudice rather
than commonality. The jury, however, was well-aware that both Plaintiffs would
suffer the same fate of death. RA87 (Mr. Konstantin is “a man who is 55 years old
who is about to die”); see also A381, RA82, RA85, RA88. See Altholz, 11
Misc.3d 1063(A), supra at *2 (“deaths will not prejudice the jury against the
defendants, vis-a-vis, the living Plaintiffs as the latter are all terminally ill and will
unfortunately suffer the same fate”).
58
Moreover, Supreme Court alleviated any potential prejudice by providing a
clear limiting instruction as to Mr. Dummitt’s preserved trial testimony. A226
(“…His testimony is to be considered by you as trial testimony by Mr. Dummitt”).
It then charged the jury to consider Plaintiffs’ “individual prognosis and the
testimony regarding their life expectancy. And you may also consider the evidence
that you have heard concerning the condition of Mr. Dummitt and Mr. Konstantin's
health, their individual habits, and employment status and activities.” A983.
The jury clearly recognized that Mr. Dummitt was sicker than Mr.
Konstantin at the time of trial by awarding him more than double the past pain and
suffering it awarded to Mr. Konstantin. A1135, A1142. Thus, as the Appellate
Division recognized, the jury did not conflate the two Plaintiffs’ conditions (A27),
and a fairer result was likely produced as a result of the comparison. See
McPadden, 173 F.R.D. 87, supra at 91.
6. The common representation of Plaintiffs and of some
Defendants
There is no dispute that Plaintiffs were represented by the same counsel,
which Appellant fails to address. Furthermore, both TLC in this case and
Defendant Aurora Pumps in Dummitt were represented by attorneys McGivney &
Kluger at trial. A161-62, A200-01, A206-07. The joint trial, therefore, supported
the statute’s underlying purpose of promoting legal economy.
59
7. Plaintiffs called three common expert witnesses
Both Plaintiffs called Dr. Moline (general asbestos medicine), Dr. Castleman
(state-of-the-art), and Mr. Hatfield (materials science) at a significant expense.
A590, A654-55, A703-04. The joint trial avoided the unnecessary duplication of
expert testimony and resulted in significant cost reduction to the dying plaintiffs.
See Symphony Fabrics, 12 N.Y.2d 409, supra at 413 (no prejudice from
consolidation where “same witnesses would be called, and the same testimony and
evidence introduced, if Barbara were not a party”); Brooklyn Nav. Shipyard Cases,
188 A.D.2d 214, supra (“joining cases together is designed to ‘reduce the cost of
litigation…”). Having these experts testify once rather than twice conserved
approximately three full trial days, thereby promoting judicial economy. See
Collura, 9 Misc.3d 1109(A), supra at *3; Consorti, 72 F.3d 1003, supra at 1006.
Accordingly, in view of the substantial commonalities between these two
cases and the Appellate Division’s marked consideration, Appellant falls woefully
short of establishing an abuse of discretion as a matter of law, even assuming such
an abuse had been alleged.
60
ii. The Appellate Division’s analysis was responsive rather
than burden-shifting
TLC’s contention that the Appellate Division improperly shifted the burden
to Appellant to disprove common questions of fact and law flies in the face of the
basic nature of an appeal. See App. Br. at 41-42. As Appellant was the party
claiming error, the Appellate Division began by identifying Appellant’s arguments.
A19-20 (“TLC (but not Crane) argues that the two actions should not have been
consolidated because they involved different factual and legal issues…); A24
(“TLC's argument primarily concerns the first five Malcolm factors”). The
Appellate Division then simply responded to these assertions. See, e.g., A27
(“[w]e disagree with TLC that the difference in the types of mesothelioma the
plaintiffs' decedents had compels separate trials”). This was responsive rather than
burden-shifting, and it is consistent with a review for an abuse of discretion. Cf.
Bernard, 99 A.D.3d 410, supra at 411 (“[w]e reject defendant's contention…”).
iii. Appellant has utterly failed to articulate any prejudice, let
alone prejudice to a substantial right, as a result of the joint
trial
It is well-settled that consolidation is favored by the courts and should be
granted unless the opposing party demonstrates prejudice to a substantial right.
See Vigo, 26 N.Y.2d 157, supra at 160; Chinatown Apartments, Inc. v. N.Y.C.
Transit Auth., 100 A.D.2d 824, 825 (1st Dept., 1984). Since this is “largely a
matter of judgment,” the Appellate Division’s determination of no prejudice should
61
be accorded great deference. Akely, 238 N.Y. 466, supra at 475. A “mere desire to
have one's dispute heard separately does not, by itself, constitute a ‘substantial
right.’” Vigo, supra at 162. Nor do bare allegations of prejudice or the
“possibility” of jury confusion. See DeSilva v. Plot Realty, LLC, 85 A.D.3d 422,
423 (1st Dept., 2011) (“claim of possible jury confusion... unpersuasive”);
Humiston v. Grose, 144 A.D.2d 907, 908 (4th Dept., 1988) (“bare allegations of
prejudice”); accord Mascioni v. Consolidated R.R. Corp., 94 A.D.2d 738 (2d
Dept., 1983). Without demonstrable evidence of prejudice, this Court “cannot
assume that [the jury did] not consider and properly decide by themselves the
separate issues which ar[o]se in connection with each cause of action.” Akely,
supra at 475; Amcan Holdings, Inc. v. Torys LLP, 32 A.D.3d 337, 340 (1st Dept.,
2006) (joint trial warranted absent “demonstrated prejudice”).
Here, in its own words, Appellant asserts nothing more than the “possibility”
of prejudice (App. Br. at 48), rendering its argument baseless. In any event,
Appellant has not explained how the joint trial of just two cases here was
“unwieldy.” App. Br. at 43. See Alizio v. Perpignano, 78 A.D.3d 1087, 1088 (2d
Dept., 2010) (“unsubstantiated claim that a joint trial would be ‘unwieldy’ was not
sufficient”). Instead, Appellant offers arguments that are either completely
unrelated to the joint trial setting or are entirely speculative.
62
1. The conduct of trial resulted from the closing hours
policies, which would have affected this case in the same
manner had it been tried individually
In claiming jury confusion, Appellant relies predominantly on the sequence
of trial. See App. Br. at 45. The Appellate Division evaluated this and
appropriately concluded that the conduct of trial was due to extenuating
circumstances flowing from the budget cuts rather than the joint trial setting. A28-
29. Indeed, every impact – on individual trials – portended by the closing hours
policies “affected the conduct of [this] trial[],” including the interruption of witness
testimony, jury tardiness, and the overall lengthening of the trial. Justice Prudenti’s
Remarks to the Legislature, supra at 5-6.
The testimony of expert witnesses was interrupted due to the shortened days,
requiring some witnesses to be taken out of order. A633 (“…I know a lot of the
witness’s testimony has been broken up and there's really nothing I can do, based
upon the schedule of the witnesses and the issues, the budgetary issues which
require me to close the courtroom at precise times”). See NYCLA Preliminary
Report, supra at 5, 22 (“[w]ithout flexibility to finish later in the day,” witnesses
will be interrupted and forced to come back a second day).
Moreover, due to the delayed opening of the courthouse, one juror was
consistently late, “further shortening the trial day.” Id. at 23. Judge Madden
providently acted to alleviate that problem. A522-23 (“…you’ve been late on a
63
number of occasions. The trial, particularly because of its length, cannot be
delayed in this fashion. So I’m excusing you from service from this jury…”).
This delay was exacerbated by the number of motions made by defendants.
A454-55 (“there have been numerous motions made by defendants…, to a certain
extent some of the length is due to the number of issues that have been raised…”);
A671, A675, A726, A839, A855, A888, A901, A905, RA69, RA73. Defendants
were certainly within their rights to seek legal rulings, but to lengthen the trial by
doing so, and then claim prejudice as a result of the trial length, is misleading.
Notwithstanding those constraints – that were unrelated to the joint trial
format – Appellant denigrates Supreme Court for pressing on with the trial by
taking witnesses out of sequence when necessary. A633 (“Jurors, we’re going to
go forward with the next witness, since we have a little bit of time and I’m trying
to move the trial along”). Supreme Court’s trial management in this respect was
provident. See C.P.L.R. 4011 (“[t]he court may determine the sequence in which
the issues shall be tried and otherwise regulate the conduct of the trial in order to
achieve a speedy and unprejudiced disposition…”). In fact, Supreme Court went
out of its way to shorten the trial by spending extra time with the attorneys to
address legal issues. A918-19 (“[w]e continued with the discussions in the robing
room until sometime after 6:00 o'clock last evening. And this is due to budgetary
constraints.”); A215, A895-96, A905, RA7-8, RA34, RA59, RA73.
64
Contrary to Appellant’s contention, absent consolidation, the “conduct of
trial” would have still been impacted by the closing hour policies. See Justice
Prudenti’s Remarks to the Legislature, supra (speaking generally of the impact on
individual trials); NYCLA Preliminary Report, supra. In short, any purported
prejudice due to the budgetary restrictions was equally suffered by all parties. This
does not amount to any prejudice as a result of the joint trial setting, let alone
prejudice to a substantial right, especially where Supreme Court rose to the
occasion to safeguard against any deprivation of rights.
30
2. Supreme Court’s careful trial management ensured that
no prejudice resulted from the joint trial
In asserting that the joint trial bolstered Plaintiffs’ claims, Appellant presents
inherently contradictory positions. It claims that the “skewed” apportionment and
recklessness findings are only explainable by bolstering (App. Br. at 47-50), yet it
does not independently challenge those findings as erroneous.
31
30
Any assertion in Appellant’s Reply Brief that the closing hours policies are all the
more reason to remit this case would lead to the slippery slope of having to remit every case tried
in the last four years – individually or jointly – because the closing hours policies allegedly
deprived litigants of a fair trial. In any event, as noted infra, there is no evidence whatsoever of
jury confusion resulting from the conduct of trial, irrespective of its cause.
31
Instead, in a footnote, Appellant references the case-specific arguments made by Crane
Co. in its brief in the separate Dummitt appeal before this Court. See App. Br. at 47, n.24.
Consistent with its actions at trial, Appellant is again attempting to use the Dummitt case to
“bolster” its own position.
65
In any event, the Appellate Division evaluated this argument and
appropriately concluded that it was speculative, particularly in light of Supreme
Court’s provident trial management. A29. Indeed, Supreme Court took great pains
to ensure that no prejudice resulted from the joint trial setting (or even the budget
cuts). A219 (“given that this is a consolidated trial and that there are a number of
different defendants, I think such limiting instruction is helpful for the jury to assist
the jury in identifying what evidence applies to which defendant”). For each of the
perceived or minor distinctions raised by Appellant, Supreme Court issued
limiting, explanatory, and curative instructions to reduce the risk of prejudice. See,
e.g., A448 (“…I find that the limiting and explanatory instructions, which I have
given throughout the trial, which I have just indicated I will again instruct the jury
as to the testimony of Dr. Markowitz and Dr. Moline specifically that testimony as
to which plaintiffs the testimony is being offered to, will assist the jury in
distinguishing the issues”); A460, A735, A738-39. See Johnson v. Celotex Corp.,
899 F.2d 1281, 1285 (2d Cir., 1990) (“…the risks of prejudice and confusion may
be reduced by the use of cautionary instructions to the jury…”); cf. Solomonyan,
451 F. Supp.2d 626, supra at 650 (“[e]ven where a risk of prejudice can be shown,
the presumption in favor of joinder as a means of achieving judicial efficiency
leads most courts to employ limiting instructions to cure prejudicial spillover”).
66
Thus, not only did Supreme Court vigilantly “guide the jury as to which
witness testified in which case” (App. Br. at 45), but the three comments Appellant
highlights as purporting to show confusion were actually curative or explanatory.
A172-73 (“let me rephrase this…”); A176 (“That refers only to Mr. Dummitt. It
does not refer to Mr. Konstantin”); A945 (“I cannot at this point make these
determinations. The attorneys differ. Once again, if it is an issue on which yo[u]
differ during your deliberations, you may have the record reread. And I will
instruct you on the law if need be”).
32
Prior to summations, Supreme Court provided the jury with a primer on the
law to give them “a context in which to understand the attorney’s summations.”
A933; A910-11 (“In the Dummitt case, the issues involve a failure to warn,
dangers with the product. In the Konstantin case, the issues involve the Labor Law
and providing a safe workplace for workers…This is just a brief outline, I will
instruct you more fully on the law after the summations and before you begin your
deliberations.”); see also RA76-78. Then, during the charge, Supreme Court
carefully differentiated between the claims. A951 (“I will refer to the Dummitt
case first in my instructions”); A969 (“…I'm now going to instruct you on the law
32
Supreme Court’s statement that it could not “at this point make these determinations”
(A945), is not indicative of confusion, but of an unwillingness to either disrupt summations or
usurp the role of the jury. By omitting the ensuing statements, Appellant takes this instruction
completely out of context.
67
that's applicable in the Konstantin case since, as I indicated to you, that is a
different set of laws. The Konstantin case involves the Labor Law. So you should
have the jury questions regarding the Labor Law”).
Additionally, Judge Madden provided the jury with notebooks to distinguish
between the evidence presented in each case (A179-80, A998-99), and with
individualized verdict sheets (A951, A1126-43), which further reduced the risk of
prejudice. See Johnson, 899 F.2d 1281, supra (individualized verdict sheets reduce
the risk of confusion). Supreme Court instructed the jury that “[t]here are two
separate interrogatories…Each of these cases has to be evaluated separately and
independently.” A951. See Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492,
1497 (11th Cir., 1985) (no prejudice where court issued “a cautionary instruction,
reminding the jurors that, during their deliberations, they would have to consider
each of the plaintiffs' claims separately”). These cautionary instructions and
intelligent management devices more than alleviated any potential for jury
confusion. See Batista, 2010 WL 9583637, supra at *4.
Contrary to Appellant unfounded argument, Plaintiffs’ counsel did not “mix
together the evidence.” App. Br. at 45. Plaintiffs’ counsel assisted in relieving any
potential jury confusion by consistently differentiating between the evidence
presented in these cases. See, e.g., A208, A375, A723, A728, RA44.
68
Thus, Supreme Court resolutely “safeguarded against” Appellant’s right to a
fair trial and “present[ed] the different causes of action in such a manner as [to]
enable the jury fairly and intelligently to pass upon the different issues.” Akely,
238 N.Y. 466, supra at 476. It is no surprise, then, that even a cursory review of
the verdicts eviscerates any notion of jury confusion.
3. There is not even an inkling of jury confusion evident in
the verdicts, which conform exactly to the evidence
adduced in each separate case
Appellant cites Malcolm for the proposition that prejudice is established
when there is an “unacceptably strong chance” that jury confusion resulted. Id. at
352. That statement, however, was predicated on the jury simply giving up amid
the “torrent of evidence” due to “48 plaintiffs, 25 direct defendants, numerous
third-and-fourth party defendants, and evidence regarding culpable non-parties and
over 250 worksites throughout the world.” Id. Consequently, jury confusion in
Malcolm was evidenced by an allocation that was “hard to explain,” namely, that
two defendants were apportioned equal fault despite a significant difference in the
evidence presented against them. The “unacceptably strong chance” of jury
confusion, therefore, was manifest in the actual verdicts.
Here, conversely, there was neither a “torrent of evidence” resulting from
just two plaintiffs, three defendants, and a handful of worksites, nor anything in
these two verdicts that is “hard to explain.” Id. The verdicts are bereft of even a
69
hint of jury confusion as a result of the joint trial setting (or even the closing hours
policies), as recognized by the Appellate Division. A30 (“[h]ad the jury been
confused, as TLC asserts it must have been, it could not have rendered an
individualized verdict for each plaintiff consistent with the specific evidence
presented with reference to that plaintiff.”)
The jury, in fact, did the exact opposite of “throwing up its hands.”
Malcolm, supra. To be extra careful that it understood the minor differences
between the theories of liability, during deliberations the jury requested that the
Labor Law charge be read back. A1007. Supreme Court complied, again
providing the jury with a copy of the specialized verdict sheet. RA90 (“I think it’s
easier if you have the verdict sheet…so you can follow along”).
The jury then rendered distinct verdicts that conform precisely to the
evidence adduced in each case. The verdicts differ as to (1) nonparty liability, (2)
apportionment, (3) damages, and (4) life expectancy.
Nonparty liability: The jury found nonparties liable in this case but not in
Dummitt. A1130-33, A1140-42. In Dummitt, the jury recognized that no evidence
was presented regarding the negligence of the nonparties. A1128-33; RA83, RA86
(“You've heard virtually nothing about these other companies in terms of their
negligence”). By contrast, here, the jury recognized that a failure to warn claim
70
against the nonparty joint compound manufacturers was proven. A1140-42. This
inured to TLC’s benefit by reducing its own share of fault. See C.P.L.R. 1603.
Apportionment: Understanding that Mr. Dummitt was exposed to asbestos
from hundreds of Crane products, thousands of times, whereas he was exposed to
asbestos from one Elliott product only 23 times (A748-827), the jury apportioned
99% fault to Crane and 1% fault to Elliott. A1133. Certainly, the claims against
Elliott were not “bolstered.” Conversely, the jury understood that since Mr.
Konstantin was equally exposed to asbestos from the joint compound
manufacturers (A313-14, A400), they deserved equal fault. A1142.
Moreover, the jury recognized that TLC was more culpable than the joint
compound manufacturers based on overwhelming evidence that it (1) was liable
both actively (for sweeping) and derivatively (for supervisory control), (2) was in
the best position to protect Mr. Konstantin, who was exposed as a bystander, and
(3) had actual knowledge of the dangers compared to the nonparty tortfeasors’
mere constructive knowledge. A308-57, A430, A505, A512, A731-32, A864-66,
A1034, A1060-65. See Murphy v. Columbia University, 4 A.D.3d 200, 201-02
(1st Dept., 2004) (75% fault to general contractor and 25% fault to subcontractor
supported where G.C. was actively liable).
Damages: Recognizing that up to the time of trial, Mr. Dummitt’s pain and
suffering had been more extensive than Mr. Konstantin’s, the jury awarded Mr.
71
Dummitt $16 million for past pain and suffering while only awarding Mr.
Konstantin $7 million – less than half. A1135, A1142.
33
Appellant’s allusion to
the “possibility” that absent consolidation, the jury never would have arrived at this
verdict is insufficient to constitute prejudice to a substantial right, and, in any case,
is simply untrue. App. Br. at 48. As Appellant acknowledges, a virtually identical
damages award was rendered in the individually-tried Hillyer action (see App. Br.
at 27), among other higher individual damages awards that Appellant does not
even acknowledge. See Argument Section I(A)(iii) supra at p.32.
In any event, Appellant’s bolstering argument is moot in light of Supreme
Court’s remittitur, which, notably, also reflects the distinction in past pain and
suffering between these cases, to wit, $5.5 million for Mr. Dummitt compared to
$4.5 million for Mr. Konstantin. A89-94; Dummitt, 36 Misc.3d 1234(A), supra.
34
Life expectancy: The verdicts were so precise that the jury set Mr.
Konstantin’s life expectancy as 18 months (A1142) based on just one question and
33
Appellant claims that Mr. Konstantin continued to engage in “normal activities,”
including playing drums in a band. App. Br. at 59, n.34. He did so in pain, on a very limited
basis, and often hired a replacement drummer because he was in too much pain to play. A416-
24, A436. In any event, the jury clearly took this into account by awarding him less than half of
what it awarded Mr. Dummitt for past pain and suffering.
34
The mootness of Appellant’s bolstering argument is, perhaps, why Appellant advances
an unfounded “inflated baseline” argument. App. Br. at 48, n.25. These remitted awards do not
“deviate materially” from other comparable awards irrespective of the “baseline” jury award (see
Argument Section I(A)(iii) supra at p.34, n.13), and Appellant benefitted immensely from being
permitted to ask for remittitur twice. See Cochetti v. Gralow, 192 A.D.2d 974, 975 (3d Dept.,
1993) (Supreme Court, in addition to Appellate Division, can remit damages post-verdict).
72
answer (A479) (“one to two years is probably the most appropriate time frame for
him”), and Mr. Dummitt’s life expectancy as six months (A1135) based, again, on
one question and answer. A381.
Simply put, the jury “consider[ed] and properly decide[d] by themselves the
separate issues which ar[o]se in connection with each cause of action.” Akely, 238
N.Y. 466, supra at 475. Therefore, Appellant’s speculative – and largely disproven
– allegations of prejudice are insufficient to show an abuse as a matter of law.
iv. The joint trial promoted the salutary goals of consolidation
Far from depriving Appellant of its right to a fair trial, the result here
exemplifies how consolidation should work. See C.P.L.R. 602 (joint trials “avoid
unnecessary costs or delay”); Brooklyn Nav. Shipyard Cases, 188 A.D.2d 214,
supra (“joining cases together is designed to ‘reduce the cost of litigation, make
more economical use of the trial court's time, and speed the disposition of cases’”);
Siegel, N.Y. Prac. 128 (5th ed.) (“joint trials are today preferred remedies because
they reduce calendar congestion and economize legal and judicial effort”).
The joint trial greatly reduced the cost of litigation since Plaintiffs avoided
having to each pay for three common experts and their trial counsel was able to
economize expenses. Even Appellant had a cost reduction because its trial counsel
also represented a defendant in the Dummitt action. A161-62, A200-01, A206-07.
Judicial economy was clearly promoted, as at least three full trial days were
73
conserved by avoiding the duplication of testimony from three experts, and a
number of legal issues were considered and decided in one trial rather than two.
RA7-8, RA57-58, RA60, RA70. Since only one jury was empaneled, a significant
number of jurors were preserved for use on other cases. Cf. Consorti, 72 F.3d
1003, supra at 1006 (“[t]he waste of time and expense involved in empaneling
separate juries to decide the same sorts of questions over and over again is
staggering”). The joint trial also helped to foster settlement. See Brooklyn Navy
Shipyard Cases, supra at 224-25. Of the seven cases originally joined for trial, five
resolved in their entirety prior to trial, and of the seven defendants that began this
joint trial amid the two cases, only three took a verdict.
35
Further, the joint trial led to a speedier disposition and preserved the
Plaintiff’s trial preferences. See id. Due to Supreme Court’s busy docket, it is
likely that at least one Plaintiff would not have lived to see his day in court but for
the joint trial, as both died during the pendency of their intermediate appeals.
36
Thus, the salutary goals of consolidation were met by the joint trial, and
there is not a scintilla of evidence that Appellant was deprived of a fair trial in any
35
Any conclusory assertion in Appellant’s Reply Brief that the joint trial somehow
forced defendants to settle would be contradicted by the fact that three defendants chose to
defend themselves to verdict.
36
Notably, Mr. Konstantin would be severely prejudiced by a new trial. Since he is
deceased, he would be unable to testify at his own trial and he does not have videotaped
testimony. His death should not inure to Appellant’s benefit, particularly where Appellant has
not contested on appeal that its negligence caused Mr. Konstantin’s injury.
74
way. By all indications, the joint trial led to a fairer result in light of the jury’s
ability to compare these cases. See McPadden, 173 F.R.D. 87, supra at 91.
II. APPELLANT’S CHALLENGE TO THE QUANTUM OF DAMAGES
IS NONREVIEWABLE AND, IN ANY EVENT, BASELESS
Appellant’s challenge to the reasonableness of the remitted damages award
is outside this Court’s scope of review. See Rios v. Smith, 95 N.Y.2d 647, 654
(2001) (“to the extent [defendant] contends that the award of damages [as remitted]
was excessive, this raises an issue beyond the scope of our powers of review”);
Tate by McMahon v. Colabello, 58 N.Y.2d 84, 86 n.1 (1983). Indeed, Appellant
cites to subsection (c) of C.P.L.R. 5501, which authorizes the “Appellate Division”
to remit damages; Appellant does not cite to subsection (b), which governs this
Court’s power and omits remittitur. See McKinney’s Statutes 240 (“where a law
expressly describes a particular act, thing or person to which it shall apply, an
irrefutable inference must be drawn that what is omitted or not included was
intended to be omitted or excluded”). This should result in an automatic
affirmance. See Vadala v. Carroll, 59 N.Y.2d 751, supra at 752-53.
In any event, the remitted damages do not deviate “materially,” or at all,
from what would be reasonable compensation. C.P.L.R. 5501(c). Beginning at age
52, Mr. Konstantin endured five surgeries (including the removal of his testicle and
scrotum), two rounds of chemotherapy and one round of broad-range radiation
75
with debilitating side effects, “unbearable” pain as well as severe mental affliction
for 33 months, and metastasis of his mesothelioma to his pleura, meaning his
future pain and suffering would be akin to having both pleural and tunica vaginalis
mesothelioma simultaneously for an 18 months period. A238-40, A359-73, A390,
A461-80, A1077-98, RA9-31. The Appellate Division thus appropriately
concluded that the remitted award was “supported by the fact[s].” A47.
37
Strikingly, Appellant does not mention any of the foregoing facts, except the
metastasis of Mr. Konstantin’s mesothelioma to his pleura, which is certainly
37
Appellant speciously labels the Appellate Division’s approach to damages as a
“uniform” per month calculation, and then criticizes the Appellate Division for purportedly using
that approach. App. Br. at 57. Initially, Appellant explicitly invited the Appellate Division to
employ a uniform calculation, going so far as to include in its brief an entire chart identifying
“compensation per month” of prior awards, before avowing that the amount awarded in this case
“should have been, at most, $100,000 per month” and that “reasonable compensation is at most
$3.8 million, using the $100,000 per month figure.” (App.’s First Dept. Br. at 45-48) (emphasis
added). This should not be condoned, particularly where a monthly calculation was not even
employed by the Appellate Division. Rather, in response to TLC’s improper per month
invitation, the Appellate Division merely stated that the past pain and suffering award “equates
to $136,000 per month, [which is] plainly within the range of what even TLC argues is
accurate.” A46. This was a reflection of why Appellant’s argument was baseless, rather than an
approbation of a “uniform” monthly calculation, which the Appellate Division has previously
rejected. See Marshall, 28 A.D.3d 255, supra at 256 (“Defendant argues that damages for pain
and suffering should be calculated on a per month basis. We reject this argument.”); cf. Reed v.
City of New York, 304 A.D.2d 1 (1st Dept., 2003), lv denied 100 N.Y.2d 503. Indeed, the very
next sentence in the Order begins with the word “Moreover,” and goes on to discuss in detail Mr.
Konstantin’s extensive, escalating, and individualized pain and suffering. A46-47. See Caprara,
supra (a damages “evaluation does not lend itself to neat mathematical calculation”). What is
worse, Appellant next claims that the average monthly award here of $156,862 deviates
materially from what would be reasonable compensation, but it suggested to the Appellate
Division that an award of $156,000 was within the range of reasonable compensation (see App.
First Dept. Br. at 45) (“recent asbestos awards for pain and suffering in mesothelioma cases
range from approximately $85,000 to $156,000 per month”). This, too, should not be condoned.
76
“unprecedented.” In arguing to the contrary, Appellant does not cite a single case
in which a plaintiff had metastasis of mesothelioma to another location of
mesothelial tissue in the body, or even a case involving an 18-month life
expectancy.
38
The future damages award was thus quite reasonable. Compare
Cardinal v. Garlock, Inc., 1997 WL 34611530 (Sup. Ct., N.Y. Cty., 1997) ($1.75
million for six months future damages), aff’d by Ronsini v. Garlock, 256 A.D.2d
250, 252 (1st Dept., 1998), lv denied 93 N.Y.2d 818.
In this regard, it is of no moment that the Appellate Division did not
expressly compare other damages awards. Reasonable compensation “cannot be
based upon case precedent alone” (Po Yee So v. Wing Tat Realty, 259 A.D.2d 373,
374 (1st Dept., 1999)), since “[i]n no two cases are the quality and quantity of such
damages identical.” Caprara, 52 N.Y.2d 114, supra at 127. Thus, although helpful,
similar awards are not “in any way binding upon the courts in the exercise of their
discretion.” Senko v. Fonda, 53 A.D.2d 638, 639 (2d Dept., 1976).
38
Instead, Appellant cites to an article from www.cancer.org, which states only generally
that 90% of cancer suffers have metastasis. See App. Br. at 59, n.33. The spread of cancer
generally to surrounding tissue, which is common, is entirely different from the spread of
mesothelioma to one of the three other discrete locations in the body where mesothelial tissue
exists. A484. Unlike suffers of many other cancers, mesothelioma victims typically do not live
long enough for that unique type of metastasis to occur. A475 (average survival is “12 to 18
months” from diagnosis). That Mr. Konstantin lived long enough for that to occur, and that it
actually did occur, more than justifies the remitted future damages award.
77
Nevertheless, Appellant fails to acknowledge that Supreme Court remitted
damages here and clearly compared this award to others. A89-93. Cf. Reed, 304
A.D.2d 1, supra at 7 (trial court's decision accorded great weight since it is in the
best position to assess the evidence presented at trial). Moreover, the Appellate
Division was presented with numerous awards for comparison. See App.’s First
Dept. Br. at 45-48; Resp.’s First Dept. Br. at 59-62. The fact that the Appellate
Division did not explicitly cite to other cases is not indicative of a failure to
comply with C.P.L.R. 5501(c). Cf. Caprara, supra (declining to delineate “more
rigid guidelines for the evaluation of an always varying pattern of damages”);
Senko, supra. Indeed, as Appellant acknowledges (see App. Br. at 54-55),
remittitur – for all types of injuries – is routinely addressed without a comparison
to other cases, including where members of this Court sat on the panel. See, e.g.,
Lauto v. Catholic Health Sys., Inc., 125 A.D.3d 1352 (4th Dept., 2015) (Fahey, J.);
Penn, 85 A.D.3d 475, supra at 477 (Abdus-Salaam, J.); Popolizio v. Cty of
Schenectady, 62 A.D.3d 1181 (3d Dept., 2009) (Stein, J.); Vogt v. Paradise Alley,
30 A.D.3d 1039 (4th Dept., 2006) (Pigott, J.).
Therefore, the Appellate Division acted in accordance with its statutory
mandate, and even if considered (for now a third time), the remitted damages
award should not be further disturbed.
78
CONCLUSION
For the foregoing reasons, it is respectfully submitted that the order of the
Appellate Division should be affirmed, with costs to Respondents, and the certified
question answered in the affirmative.
Dated: New York, New York
June 5, 2015
Respectfully submitted,
BELLUCK & FOX, LLP
By: ________________________
Seth A. Dymond
546 Fifth Avenue, 4th Floor
New York, New York 10036
T: (212) 681-1575
F: (212) 681-1574
sdymond@belluckfox.com
Attorneys for Plaintiffs-Respondents
Ruby E. Konstantin, Individually and
as Executrix of the Estate of Dave
John Konstantin, deceased.
/s/ Seth A. Dymond