APL-2014-00317
New York County Clerk’s Index No. 190134/10
Court of Appeals
STATE OF NEW YORK
In Re: New York City 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,
and
TISHMAN LIQUIDATING CORPORATION,
Defendant-Appellant.
>> >>
BRIEF OF JOHN CRANE INC. AS AMICUS CURIAE
IN SUPPORT OF DEFENDANT-APPELLANT
Suzanne M. Halbardier
BARRY, MCTIERNAN & MOORE LLC
2 Rector Street, 14th Floor
New York, New York 10006
212-313-3600
shalbardier@bmmfirm.com
Daniel J. O’Connell
O’CONNELL, TIVIN,
MILLER & BURNS, LLC
135 S. LaSalle Street, Suite 2300
Chicago, Illinois 60603
312-256-8800
dan@otmblaw.com
(pro hac vice)
Michael A. Pollard
Michael C. McCutcheon
BAKER & MCKENZIE LLP
300 East Randolph Street, Suite 5000
Chicago, Illinois 60601
312-861-8000
michael.pollard@bakermckenzie.com
michael.mccutcheon@bakermckenzie.com
(pro hac vice)
Date Completed: April 7, 2016
Attorneys for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................... ii
PRELIMINARY STATEMENT ................................................................... 1
SUMMARY OF ARGUMENT ..................................................................... 2
ARGUMENT ................................................................................................. 4
I. The Malcolm Factors Must Be Applied
Meaningfully To Ensure A Fair Trial. ...................................... 4
II. The Malcolm Factors Are Applied Indiscriminately
And Are Routinely Abrogated By The Trial Courts ................. 7
III. Joint Trials Have Increasingly Led To Excessive Awards ..... 17
CONCLUSION ............................................................................................ 19
ii
TABLE OF AUTHORITIES
Cases
Assenzio v A.O. Smith Water Prods. Co.,
2015 N.Y. Misc. LEXIS 355 (N.Y. Sup. Ct. Feb. 5, 2015) ......................... 8
Assenzio v A.O. Smith Water Prods., No. 190008/12,
2013 N.Y. Misc. LEXIS 1630 (N.Y. Sup. Ct. Apr. 19, 2013) ................. 5, 8
Ballard v Armstrong World Industries,
191 Misc.2d 625 (N.Y. Sup. Ct. 2002) ........................................................ 5
Bauer v A.O. Smith Water Products, No. 115756/07, et al,
2008 N.Y. Misc. LEXIS 9058 (N.Y. Sup. Ct. Aug. 21, 2008) ................ 6, 9
Begim v Certainteed Corp., No. 190125/12 et al,
2014 N.Y. Misc. LEXIS 1133 (N.Y. Sup. Ct. Mar. 14, 2014) .................... 9
Bender v Underwood, 93 A.D.2d 747 (1st Dep’t 1983) .................................. 5
Bischofsberger v Ploeckelmann, No. 107352/2005
2012 N.Y. Misc. LEXIS 4544 (N.Y. Sup. Ct. Sept. 19, 2012) .... 7, 8, 11, 14
Bradford v John A. Coleman, 110 A.D.2d 965 (3d Dep’t 1985) ................... 4
Cummin v Cummin, 56 A.D.3d 400 (1st Dep’t 2008) ..................................... 4
Geneva Temps. Inc. v New World Communities,
24 A.D.3d 332 (1st Dep’t 2005).................................................................... 4
Johnson v Celotex Corp., 899 F.2d 1281 (2d Cir. 1990) ................................ 5
Malcolm v Nat’l Gypsum Co., 995 F.2d 346 (2d Cir. 1993) ................. passim
In re New York Asbestos Litig., No. 102968/99,
22 Misc.3d 1109(A) (N.Y. Sup. Ct. Jan. 9, 2009) ....................................... 5
In re New York Asbestos Litigation (Marshall),
28 A.D.3d 255 (1st Dep’t 2006).................................................................... 7
In re New York City Asbestos Litig., 188 A.D.2d 214
(1st Dep’t 1993), aff’d, 625 N.E.2d 588(N.Y. 1993) .................................... 4
iii
In re New York City Asbestos Litig., No. 0103121/2007,
2008 N.Y. Misc. LEXIS 8397, at *12 (N.Y. Sup. Ct. Apr. 7, 2008) ......... 14
Matter of New York City Asbestos Litig., No. 102034/05,
11 Misc.3d 1063(A) (N.Y. Sup. Ct. Jan. 19, 2006) ................................. 2, 5
Matter of New York City Asbestos Litig. [Batistia],
2010 WL 9583637, *2 (N.Y. Sup. Ct. 2010) ............................................... 8
In re New York City Asbestos Litig., No. 102968/99,
22 Misc.3d 1109(A), (N.Y. Sup. Ct. Jan. 9, 2009) ............................. 6, 9,12
In re New York City Asbestos Litig., No. 106509/02,
2011 N.Y. Misc. LEXIS 6200 (N.Y. Sup. Ct. Dec. 21, 2011)................... 10
In re New York City Asbestos Litig., No. 114483/02,
2011 N.Y. Misc. LEXIS 2248 (N.Y. Sup. Ct. May 2, 2011) ....... 6, 8, 11, 12
In re New York City Asbestos Litig., No. 190102/2008-003,
2009 N.Y.Misc. LEXIS 5289 (N.Y. Sup. Ct. Sept. 9, 2009) ................. 6, 13
In re New York City Asbestos Litig., No. 190181/11,
2012 NY Misc. LEXIS 3828 (N.Y. Sup Ct. Aug. 7, 2012) ....................... 11
In re New York City Asbestos Litig., No. 190323/10,
2011 N.Y. Misc. LEXIS 5012 (N.Y. Sup. Ct. Sept. 7, 2011) ...................... 6
In re New York City Asbestos Litig., No. 190486/2011,
2013 N.Y. Misc. LEXIS 4732 (N.Y. Sup. Ct. Oct. 17, 2013) ............. 10, 11
In re New York City Asbestos Litig. v. A.O. Smith Water Products,
No. 112742/04, 9 Misc.3d 1109(A) (N.Y. Sup. Ct. Sept. 15, 2005) ..... 6, 12
In re Repetative Stress Litig., 11 F.3d 368 (2d Cir. 1993) ........................... 15
Seventh Judicial Dist. Asbestos Litig. v. Armstrong World Indus.,
191 Misc.2d 625 (N.Y. Sup. Ct. 2002) ...................................................... 12
Sokolow v Lacher, 299 A.D.2d 64 (1st Dep’t. 2002) ...................................... 4
Other Authorities
N.Y.C.P.L.R. § 602 ................................................................................... 4, 16
iv
N.Y.C.P.L.R. Article 16 ................................................................................ 12
In re Mass Tort and Asbestos Programs,
General Court Regulation No. 2012-01 ....................................................... 5
1
PRELIMINARY STATEMENT
John Crane Inc. (“JCI” or “amicus”) is a wholly owned subsidiary of John
Crane Group, Ltd. (UK), which itself is a wholly owned subsidiary of Smiths
Group Inter. Holdings, Ltd. Smiths Group Inter. Holdings, Ltd. is wholly owned
by Smiths group PLC, which is traded on the London Stock Exchange. Amicus
has been a defendant in thousands of NYCAL cases, and thousands more
asbestos-related disease lawsuits across the country. Amicus intends to address
one of the issues before this Court on Tishman Liquidating Corporation’s appeal,
namely, consolidation.
This case is exceptionally important to amicus, because it is routinely
subject to inappropriate, inconsistent and prejudicial consolidation orders in
NYCAL that negatively impact its right to a fair and impartial trial. See, Ryan v.
Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997) (“An
amicus brief should normally be allowed...when the amicus has an interest in
some other case that may be affected by the decision in the present case...or when
the amicus has unique information or perspective that can help the court beyond
the help that the lawyers for the parties are able to provide”). Because amicus
has been trying cases in NYCAL since its inception, it has a well-informed
opinion, derived from extensive litigation experience in New York courts, about
the propriety of consolidation that will be of assistance to this Court.
2
SUMMARY OF ARGUMENT
This Court should reverse the trial court’s consolidation order and hold that
consolidation is improper in asbestos cases where, as here: (1) the plaintiffs/
decedents were exposed to different asbestos-containing products at different
work places, in different ways, at different times; (2) the plaintiffs/decedents
suffered from different disease types; and (3) the legal theories of liability are
different. Ignoring these critical distinctions, the trial court consolidated this case
with Ronald Dummitt’s by misapplying a multi-factor test that was first
articulated by the Court of Appeals for the Second Circuit over twenty years ago
in Malcolm v Nat’l Gypsum Co., 995 F.2d 346, 350-52 (2d Cir. 1993). (July 3,
2014 Decision and Order (“Order”) at 15.)
This Court has never addressed, much less applied, the Malcolm factors in
any case, asbestos or otherwise. In applying Malcolm, however, the First
Department noted in the Order that the trial courts have repeatedly interpreted
and applied the Malcolm factors differently over the years, with trial courts
“rul[ing] inconsistently” with regard to proposed joint trials involving plaintiffs
with disparate disease types. (Id. at 16-18.) The First Department also
recognized numerous additional inconsistent distinctions that trial courts have
drawn over the years when deciding whether and how to join asbestos-related
disease cases for trial. (Id.)
3
The First Department was correct to make these observations, because a
review of the body of available case law reveals that NYCAL trial courts,
including the trial court here, are routinely granting requests for joint trials with
little regard for the “seminal” Malcolm factors. JCI submits that this Court
should: (1) determine that the Malcolm factors, plus certain additional factors are
the appropriate issues to consider in evaluating a request for consolidation and
joint trial; and (2) provide much needed guidance to the trial courts on how to
apply them consistently in evaluating consolidation requests in asbestos disease
cases that have the potential to violate defendants’ right to a fair and impartial
trial – namely, that the factors are meaningful and should not be loosely applied.
Given the First Department’s broad interpretation of those factors so as to make
them meaningless, this Court should reverse the trial court’s order of
consolidation.
JCI believes that consolidation should only be permitted where the cases
being considered share the same worksite, the same exposure years, and the same
defendants, diseases and plaintiffs’ firms. By same worksite, JCI submits that
this should require, as in Malcolm, closely related sites; Malcolm involved Con
Edison powerhouses. Dummitt/Konstantin had no common worksites, and the
trial courts in NYCAL have regularly interpreted “worksite” to mean any site
4
where asbestos exposure occurred, rather than the same worksites as confronted
by the Second Circuit in Malcolm.
ARGUMENT
I. The Malcolm Factors Must Be Applied
Meaningfully To Ensure A Fair Trial.
N.Y.C.P.L.R. §602 (CONSOL. 2014) permits the trial court, within its
discretion, to join cases for trial when there are common questions of law and
fact. Although not all of the facts or issues in the cases proposed for joint trial
need to be identical, there must be some identity of issues such that the salutary
goal of judicial economy is served. Cummin v Cummin, 56 A.D.2d 400 (1st Dep’t
2008); Bradford v John A. Coleman, 110 A.D.2d 965 (3d Dep’t 1985). Once the
requirement of commonality has been satisfied, the opponent needs to
demonstrate that a joint trial will unduly prejudice a substantial right. Geneva
Temps. Inc. v New World Communities, 24 A.D.3d 332 (1st Dep’t 2005). That
right is typically the right to a fair and impartial trial.
The chief policy considerations behind consolidation or joinder are
efficiency and the conservation of judicial resources. Sokolow v Lacher, 299
A.D.2d 64 (1st Dep’t 2002); In re New York City Asbestos Litig., 188 A.D.2d 214
(N.Y. App. Div. 1993), aff’d, 625 N.E.2d 588 (N.Y. 1993). However,
“considerations of convenience and economy must yield to a paramount concern
5
for a fair and impartial trial.” Johnson v Celotex Corp., 899 F.2d 1281, 1284 (2d
Cir. 1990).
The First Department has recognized that joint trials are ill advised when,
as in this case, “individual issues predominate, concerning particular
circumstances applicable to each plaintiff.” Bender v Underwood, 93 A.D.2d
747, 748 (1st Dep’t 1983). Thus, although a joint trial has the potential to reduce
the cost of litigation, make more economical use of the trial court’s time, and
speed the disposition of cases as well as encourage settlements, Malcolm, 995
F.2d at 354, it is “possible to go too far in the interests of expediency and to
sacrifice basic fairness in the process” of joinder. Ballard v Armstrong World
Industries, 191 Misc.2d 625 (N.Y. Sup. Ct. 2002).
Without citation to any New York authority, the First Department stated
that “[Malcolm] is the seminal case concerning consolidation in asbestos cases.”
(Order at 15.) But the Appellate Division has cited Malcolm only three times
prior to the instant case, and only two of those cases involved liability issues
arising from the use of asbestos. Moreover, in the twenty-two years since
Malcolm was decided, it has never been relied upon by this Court in any respect.
Nevertheless, in the case of asbestos litigation, joint trials of more than one
plaintiff at a time against more than one defendant at a time have been routinely
permitted through the misapplication of the Malcolm factors. Indeed, the trial
6
courts’ purported reliance upon Malcolm in NYCAL consolidation orders has
become ubiquitous over the past ten years. See, e.g., In re New York City
Asbestos Litig., No. 190323/10, 2011 N.Y. Misc. LEXIS 5012, at *2-4 (N.Y. Sup.
Ct. Sept. 7, 2011); In re New York Asbestos Litig., No. 102968/99, 22 Misc.3d
1109(A) (N.Y. Sup. Ct. Jan. 9, 2009); In re New York City Asbestos Litig. v A.O.
Smith Water Products, No. 112742/04, 9 Misc.3d 1109(A) (N.Y. Sup. Ct. Sept.
15, 2005); In re New York City Asbestos Litig., No. 190102/2008-003, 2009 N.Y.
Misc. LEXIS 5289 (N.Y. Sup Ct. Sept. 9, 2009); Bauer v A.O. Smith Water
Products, No. 115756/07, et al, 2008 N.Y. Misc. LEXIS 9058 (N.Y. Sup. Ct.
Aug. 21, 2008); In re New York City Asbestos Litig., No. 114483/02, 2011 N.Y.
Misc. LEXIS 2248 (N.Y. Sup. Ct. May 2, 2011).
The Malcolm case involved Con Edison powerhouses; yet, the trial courts
are regularly approving consolidations in cases where there are no common
worksites, let alone similar worksites such as the powerhouses at issue in
Malcolm. Accordingly, JCI believes that this Court must limit consolidations to
cases where the same worksites are involved. The lower courts should not be
joining cases unless there are common worksites where similar exposures
occurred (i.e., powerhouses or shipyards1 or the World Trade Center); where the
1 It may be appropriate to join cases arising from exposure in the same shipyard or class of
ship.
7
exposure years are the same (e.g., all the cases involve pre-OSHA exposures);
where the exposures are the same (e.g., carpenters directly using asbestos
products); where the defendants are the same (to avoid a defendant in one case
being required to participate in a trial where it is not a defendant in the other
cases); where the plaintiff firm is the same; where plaintiffs are all living or all
deceased; and where the disease is the same.
II. The Factors Should Not Be Applied In A
Way That Abrogates Their Meaning.
In Malcolm, the Court of Appeals for the Second Circuit delineated
specific factors that are relevant in determining whether to jointly try cases based
upon asbestos exposure. The factors include: (1) common work site; (2) similar
occupation; (3) similar time of exposure; (4) type of disease; (5) whether
plaintiffs are living or deceased; (6) status of discovery in each case; (7) whether
all plaintiffs are represented by the same counsel; and (8) type of cancer.
Bischofsberger v Ploeckelmann, No. 107352/2005 2012 N.Y. Misc. LEXIS 4544
(N.Y. Sup. Ct. Sept. 19, 2012). The weight accorded to the several different
Malcolm factors should be defined by this Court, because the reasoning and
orders of the trial courts across NYCAL that are applying them vary
considerably. In fact, many recent trial court decisions erode, or simply ignore,
the Malcolm factors and the facts of Malcolm itself. In Malcolm, “[t]he thread
upon which all 600 cases hung was that each plaintiff had been exposed to
8
asbestos in one or more of over 40 power-generating stations, or ‘powerhouses’
as they are called, in New York State.” 995 F.2d at 348. In contrast, NYCAL
courts routinely consolidate cases when plaintiffs were exposed in any work site
in the tri-state area.
For example, with regard to the first and second Malcolm factors, the First
Department expressly recognized:
some trial courts have rejected a narrow focus on the specific
locations of the exposures and types of work in favor of an analysis
that considers whether two or more plaintiffs were engaged in an
occupation related to maintenance, inspection and/or repair and
[were] exposed to asbestos in the ‘traditional’ way, that is, by
working directly with the material for years.
(Order at 16, citing Matter of New York City Asbestos Litig. [Batista], 2010 WL
9583637, *2 (N.Y. Sup. Ct. 2010) (joining cases of residential drywaller, Navy
pipefitter, home renovator, plant electrician, powerhouse worker, and Navy
electrician for trial, where their injuries “resulted from ‘insulation exposure from
boilers, valves, pumps and other insulated equipment’”). Other trial courts,
however, have focused on the types of asbestos product to which the plaintiffs
were exposed, and whether they were manufactured and distributed by different
defendants, but have reached different conclusions. Compare Bischofsberger,
2012 N.Y. Misc. LEXIS 4544 (holding that differences between products used
by the workers was reason to deny a joint trial) with In re New York City Asbestos
Litig., No. 114483/02, 2011 N.Y. Misc. LEXIS 2248, at *3-4 (N.Y. Sup. Ct. May
9
2, 2011) (finding that joinder was proper where seven of eight workers had been
exposed to boilers and pumps, and only five of eight workers had been exposed
to packing and firebrick).
Moreover, some trial courts have refused to join cases involving bystander
exposure with those involving tradesmen who worked with asbestos-containing
products directly. In re New York City Asbestos Litig., No. 190486/2011, 2013
N.Y. Misc. LEXIS 4732, at *12-13 (N.Y. Sup. Ct. Oct. 17, 2013); Begim v
Certainteed Corp., No. 190125/12 et al, 2014 N.Y. Misc. LEXIS 1133 (N.Y.
Sup. Ct. Mar. 14, 2014). The trial court in this case, however, improperly allowed
the claims of Konstantin – a bystander – to be tried with Dummitt’s – a pipefitter.
This case, therefore, demonstrates the lack of consistency among the trial courts.
There is also no consensus among the trial courts as to what types of
workers should have their cases tried together. Some trial courts have found that
claims of workers who were exposed to asbestos in the Navy should not be joined
with workers who have exclusively land-based exposure, and that plaintiffs who
worked exclusively with automobiles should not be joined with workers exposed
through home renovation and construction. Bauer v A.O. Smith Water Products
Co., No. 115756/07, et al., 2008 N.Y Misc. LEXIS 9058, at *9-18 (N.Y. Sup. Ct.
Aug. 21, 2008); see also, In re New York City Asbestos Litig., No. 102968/99, 22
Misc.3d 1109(A), at *3 (N.Y. Sup. Ct. Jan. 9, 2009) (declining to consolidate
10
claim of Navy seaman with high seas exposure with claims of workers without
Navy work history); In re New York City Asbestos Litig., No. 190486-2011, 2013
N.Y. Misc. LEXIS 4732, at *14-15 (N.Y. Sup. Ct. Oct. 17, 2013) (refusing to
join plaintiff who was exposed to asbestos during his service in the Navy because
of risk of jury confusion if consolidated with cases that do not involve federal
law); In re New York City Asbestos Litig., No. 106509/02, 2011 N.Y. Misc.
LEXIS 6200, at *10-12 (N.Y. Sup. Ct. Dec. 21, 2011) (severing all plaintiffs with
Navy and shipyard exposure from those with only land-based exposures). Yet
the trial court in this case allowed the claims of Konstantin, who was exposed
only on land while working a construction job, to be tried jointly with Dummitt’s
– a Navy sailor. Again, the unpredictability of the trial courts is striking.
JCI believes that the most important Malcolm factor is the “common
worksite,” with the lower courts too broadly interpreting what may be considered
“common” worksites. Each worksite may be subject to different rules (union
versus non-union, shipyards subject to military guidelines, powerhouses where
contracts dictate the method and manner of the work). Each worksite may
involve different companies whose products were used in the original
construction or renovation. Further, the defendant will need to present evidence
of all companies, products and exposure at each site for purposes of allocation
under Article 16. This is a daunting task where joined cases share no common
11
worksite. The Malcolm factors should not be interpreted so broadly as to permit
joinder of any case with “commercial” locations, but this is exactly what occurred
in Dummitt/Konstantin and other groups regularly joined for trial. JCI urges this
Court to tighten the requirements of “common worksites” to require joinder of
only those cases which truly share the same worksite.
Trial courts have also ruled inconsistently where plaintiffs who propose
joint trials have different types of mesothelioma. Compare In re New York City
Asbestos Litig., No. 190181/11, 2012 NY Misc. LEXIS 3828, at *27 (N.Y. Sup
Ct. Aug. 7, 2012) (finding that peritoneal mesothelioma is a “distinct disease
from...pleural mesothelioma”), with Bischofsberger, 2012 N.Y. Misc. LEXIS
4544 at *6 (pleural mesothelioma and peritoneal mesothelioma “are the same
disease, albeit they present in different parts of the body”). Likewise, some courts
have refused to join cases involving lung cancer with cases involving
mesothelioma, In re New York City Asbestos Litig., No. 190486-2011, 2013 N.Y.
Misc. LEXIS 4732, at *14-15 (N.Y. Sup. Ct. Oct. 17, 2013), while others have
found no significance in the distinction for consolidation purposes. In re New
York City Asbestos Litig., No. 114483/02, 2011 N.Y. Misc. LEXIS 2248, at *4
(N.Y. Sup. Ct. May 2, 2011). Defendants often offer scientific and medical
opinions disputing the relationship between non-pleural mesothelioma cases and
asbestos exposure. Complicated causation arguments are also presented in lung
12
cancer cases, as a plaintiff’s lung cancer may be caused by a number of
carcinogens, including cigarettes. JCI believes that joining different diseases
together is improper and prejudicial.
In determining the fifth Malcolm factor, the effect of different plaintiffs’
“statuses” (i.e., living or dead), trial courts have been similarly divided. Compare
In re New York City Asbestos Litig., No. 102968/99, 22 Misc.3d 1109(A), at *3
(N.Y. Sup. Ct. Jan. 9, 2009) (declining to join cases involving deceased plaintiffs
with living plaintiffs who were not at risk of imminent death) and Seventh
Judicial Dist. Asbestos Litig. v Armstrong World Indus., 191 Misc.2d 625 (N.Y.
Sup. Ct. 2002) (refusing to join cases involving deceased workers with claims of
workers still living) with In re New York City Asbestos Litig., No. /02, 2011 N.Y.
Misc. LEXIS 2248, at *4 (N.Y. Sup. Ct. May 2, 2011) (joining trials of living
and dead workers because “plaintiffs will still require common expert testimony
on toxicity of asbestos”); Matter of New York City Asbestos Litig., No.
102034/05, 816 N.Y.S.2d 698 (N.Y. Sup. Ct. Jan. 19, 2006) (observing that there
was no prejudice in joining deceased plaintiffs with terminally ill plaintiffs); In
re New York City Asbestos Litig., No. 112742/04, 9 Misc.3d 1109(A) (N.Y. Sup.
Ct. Sept. 15, 2005) (observing that “[w]hether plaintiffs are living or dead is not
a factor here...all the plaintiffs suffer from the same fate from this fatal
disease….”). JCI believes that this Court should clarify that only plaintiffs with
13
the same health status (i.e. all living and able to testify at trial, all deceased or all
living but incapacitated) are appropriate for a consolidated trial.
The third, sixth and seventh factors are often rubber-stamped by the trial
courts in NYCAL, and, in practice, have no real meaning in the analysis. See,
e.g., In re New York City Asbestos Litig., No. 190102/2008-003, et al, 2009 N.Y.
Misc. LEXIS 5289 (N.Y. Sup Ct. Sept. 9, 2009).
Against this backdrop, a review of the consolidation orders that have been
entered over the past decade reveal the following disturbing trends that are
demonstrated by the instant case: (1) joint trials are routinely ordered regardless
of the distinctions that should be made between the products and, therefore, the
defendants; (2) joint trials are routinely ordered regardless of the different disease
types at issue; and (3) joint trials are routinely ordered where some claimants are
living and others are dead. Amicus submits that the unfairness to defendants
caused by these consolidation decisions substantially outweighs the benefits of
consolidation.
In this case, for example, the asbestos-containing products to which
plaintiffs Konstantin and Dummitt were exposed were different in each case. The
asbestos to which Mr. Dummitt was exposed was contained in gaskets and pads
for valves and pumps on Navy ships. The asbestos to which Mr. Konstantin was
allegedly exposed was contained in joint compound. The gaskets and pads for
14
valves and pumps were made by different manufacturers than were the joint
compound. These disparate facts alone should have the trial court to deny the
request for consolidation. See, In re New York City Asbestos Litig., No.
0103121/2007, 2008 N.Y. Misc. LEXIS 8397, at *12 (N.Y. Sup. Ct. Apr. 7, 2008)
(severing plaintiff in part due to lack of commonality of product exposure);
Bischofsberger v AO Smith Water Prods., Index No. 107352/2005, 2012 N.Y.
Misc. LEXIS 4544, at *6-7 (N.Y. Sup. Ct. Sept. 20, 2012) (declining to
consolidate cases that involved “similar products” because products were
“largely manufactured and/or distributed by different defendants”).
Moreover, Mr. Dummitt suffered from pleural mesothelioma, which
affects the lining of the lungs and chest cavity. Mr. Konstantin, in contrast,
suffered from mesothelioma of the tunica vaginalis, which affects the lining
around the testicles. The record contains evidence establishing that the
manifestation of the disease in the tunica vaginalis is different from
mesothelioma of the pleura. (A1390, A1477, A1481). Because Mr. Dummitt and
Mr. Konstantin suffered from different disease subtypes, their actions involved,
among other things, different medical evidence, different evidence of causation,
and different proof of damages. Thus, consolidation was improper. Indeed, a
defendant is prejudiced when there is a risk that, by consolidating multiple
actions, the jury will become confused, or evidence presented by one plaintiff
15
will bolster claims brought by another plaintiff. See, In re New York City
Asbestos Litig., No. 102034/05, 11 Misc.3d 1063(A) (N.Y. Sup. Ct. Jan. 19,
2006) (severing case where “possibility for such confusion could greatly
prejudice” defendants); Assenzio v A.O. Smith Water Prods., No. 190008/12,
2013 N.Y. Misc. LEXIS 1630, at *6 (N.Y. Sup. Ct. Apr. 19, 2013) (risk that
evidence will bolster unrelated claims is prejudicial).2
The Second Circuit Court of Appeals has recognized that consolidating
individual tort cases when plaintiffs allegedly suffer injuries that occurred at
different times, in different places, and in different ways “render[s] the label mass
tort into a self-fulfilling prophecy.” In re Repetitive Stress Litig., 11 F.3d 368,
373-74 (2d Cir. 1993) (reversing consolidation order). And the Malcolm court
recognized that a trial court abuses its discretion if it consolidates cases involving
different workplaces, different occupations, different exposure periods, different
2 Other courts have recognized that pleural mesothelioma cases should not be
tried together with cases involving other mesotheliomas. See, e.g., In re Mass
Tort and Asbestos Programs, General Court Regulation No. 2012-01 (Ct. Com.
Pl., Phila. County, Pa. Feb. 15, 2012), available at http://www.courts.phila.
gov/pdf/regs/2012/cpajgcr2012-01.pdf (“Pleural mesothelioma is a disease that
is distinct from mesotheliomas originating in other parts of the body, and will not
be tried on a consolidated basis with non-pleural mesothelioma cases and not
necessarily tried on a consolidated basis. Non-pleural mesothelioma cases will
be further classified for trial, so that non-pleural mesothelioma cases allegedly
caused by occupational exposure will not be tried on a consolidated basis with
non-pleural mesothelioma cases allegedly caused by para-occupational
(bystander) exposure.”)
16
disease types and living and dead plaintiffs. Malcolm, 995 F.2d at 351-52.
Consistent with these pronouncements, amicus’s experience is that joint trials
inherently favor plaintiffs, create substantial and irreparable jury confusion, and
make trials longer, more complicated and more expensive.
Although the Malcolm court stated that no single factor is dispositive on
its own, if the factors are to be used, each should serve as a guideline in assisting
the trial court in deciding whether to combine all, some or none of the cases
presented for trial. Malcolm, 995 F.2d at 350. The current state of the law,
however, leaves the trial court with such wide and unfettered discretion in
weighing the seven factors that they in reality serve as no guideline at all, but
rather a means to an end. The malleability of the Malcolm factors leaves the
litigants, and in particular, defendants, unable to predict with any certainty how
cases will ultimately be joined for trial, if at all. This unpredictability creates
inefficiency - contrary to the primary goal of consolidation - and, as the
Defendant-Appellant has ably demonstrated, substantial prejudice to defendants’
right to a fair trial.
Accordingly, this Court should resolve the conflicts and inconsistencies
among the trial courts in the application of the Malcolm factors in reversing the
trial court’s ruling on consolidation. JCI suggests that this Court must restrict the
lower courts’ determinations of “common worksites” and impose the limitations
17
anticipated by Malcolm, which all involved the Con Edison powerhouses. Unless
the cases truly share a common worksite, then the cases should not be joined for
trial.
This Court should also rule that consolidation is improper under any one
or all of the following circumstances: (1) where the plaintiffs/decedents were
exposed to different asbestos-containing products at different work places; (2)
where different disease types are at issue; and (3) where some claimants are living
and others are deceased. The Malcom factors, under any reasonable application,
do not support consolidation under such circumstances, and it is inherently unfair
for defendants to be subject to consolidation of such disparate cases.
III. Joint Trials Have Increasingly Led To Excessive Awards.
JCI’s experience in defending asbestos-related disease cases in NYCAL
teaches that consolidated trials lead to excessive awards. For example, in a joint
trial that JCI tried to verdict, the jury’s total awards of $8 million and $14 million
were later reduced on appeal to $3 million and $4.5 million respectively for
plaintiffs Noah Pride and Bernard Mayer. See, In re New York Asbestos
Litigation (Marshall), 28 A.D.3d 255 (1st Dep’t 2006). Here, the First
Department affirmed an already once remitted award for Mr. Konstantin that is
nearly twice and large as Mr. Mayer’s. Unfortunately, this case is indicative of
18
the trend in cases involving joint trials where the awards have grown even more
excessive over the past ten years.
For example, in two actions consolidated for a joint trial involving
decedent-plaintiffs who claimed they contracted terminal lung cancer from
asbestos exposure, the jury awarded $13,650,000 (later remitted to $6,500,000)
and $8,500,000 (award sustained) to the claimants. See, Koczur v A.C.C & S.,
Inc., Index No. 122304/09, and McCarthy v A.C. & S., Inc., Index No. 100490/99.
In the consolidated case, Assenzio v A.O. Smith Water Prods. Co., 2015 N.Y.
Misc. LEXIS 355 (N.Y. Sup. Ct. Feb. 5, 2015), the trial court substantially
remitted the jury’s awards to five plaintiffs that totaled $190 million in the
aggregate.3
In Assenzio, the defendants argued that the cases had been improperly
consolidated. Id. at *47. Specifically, defendants argued that, based on the
number of plaintiffs, lack of commonality of work sites, the extensive period of
time covered in the state of the art evidence, and a purported disjointed or
fragmented order in which the evidence was presented, the jurors were unable to
3 In Assenzio, the trial court remitted the verdict from $20 million for past pain
and suffering to $5.5 million, and for loss of consortium from $10 million to
$500,000; in Brunck, from $20 million for past pain and suffering to $3.2 million;
in Levy, from $50 million for past pain and suffering to $7.5 million, and for loss
of consortium from $10 million to $650,000; in Serna, from $60 million for past
and future pain and suffering to $7.5 million; and in Vincent, from $20 million
for past pain and suffering to $5 million.
19
differentiate, and fairly and objectively evaluate the evidence with respect to the
individual plaintiffs and defendants. Id. In addition, defendants argued that the
consolidation of five cases resulted in the evidence in each case improperly
bolstering the evidence in the other cases. Id. The trial court rejected these
arguments. See, Assenzio v A.O. Smith Water Prods., 2013 N.Y. Misc. LEXIS
1630 *6-10 (N.Y. Sup. Ct. Apr. 17, 2013). JCI submits that for the reasons
advanced in Assenzio, and those discussed above, this Court must carefully
review the trial court’s practice of routinely consolidating asbestos-disease cases
under C.P.L.R. § 602(a) through an inconsistent and inequitable application of
the Malcolm factors that consequently leads to improperly inflated damages
awards.
CONCLUSION
This Court’s decision involves important issues that are common to the
majority, if not all, of the cases pending in NYCAL today. Because consolidation
and joint trials by their very nature raise the “paramount concern for a fair and
impartial trial,” it is important that this Court end the rough justice that is meted
out for defendants on a daily basis. This Court should provide much needed
guidance on the weight to be given to the relevant Malcolm factors in making a
decision on joint trials.
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JCI requests that this Court direct that cases be joined for trial only if they
truly comply with the Malcolm factors: that there is an actual common worksite
such as a powerhouse or a shipyard, and not simply commercial sites; that the
product exposures are the same; that diseases not be mixed together for trial; that
the exposure years be the same; that plaintiffs are all living or all deceased; that
the same defendants are inculpated in all the cases; and that the cases are all
brought by the same plaintiff’s firm.
Respectfully submitted,
Dated: New York, New York
April 7, 2016
BARRY MCTIERNAN & MOORE LLC
By: ______________________________
Suzanne M. Halbardier
2 Rector St.
New York, NY 10006
(212) 313-3600
SHalbardier@bmmfirm.com
Counsel for proposed Amicus Curiae John Crane Inc.
Michael A. Pollard
Michael C. McCutcheon
Baker & McKenzie LLP
300 East Randolph Street
Chicago, Illinois 60601
(312) 861-2786
Michael.Pollard@bakermckenzie.com
Michael.Mccutcheon@bakermckenzie.com
(pro hac vice)
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Daniel O’Connell
O’Connell, Tivin, Miller & Burns
135 S. La Salle Street Suite 2300
Chicago, IL 60603
(312) 256-8800
DAN@OTMBLAW.COM
(pro hac vice)