Applying Factors Outlined by the Second Circuit, New York Court Refuses to Consolidate Three Asbestos Cases for Trial Supreme Court of New York, New York County, May 17, 2016

The plaintiffs moved to consolidate three cases for trial. Defendants American Biltrite and Kaiser Gypsum opposed. The court denied the plaintiffs’ motion to consolidate.

Courts consider six factors outlined by the Second Circuit in determining whether or not to consolidate individual plaintiffs’ cases for a joint trial where asbestos exposure is alleged: “(1) whether the plaintiffs worked at a common or similar worksite; (2) whether the plaintiffs had similar occupations, as a ‘worker’s exposure to asbestos must depend mainly on his occupation,’ such as those who worked directly with materials containing asbestos as opposed to those who were exposed to asbestos as bystanders; (3) whether the plaintiffs were exposed to asbestos during the same period of time; (4) whether the plaintiffs suffer or suffered from the same disease, as the jury at a consolidated trial will hear evidence about the etiology and pathology of different diseases, and prejudice may result where the jury learns that a terminal cancer engenders greater suffering and shorter life span than does asbestosis; (5) whether the plaintiffs are alive; ‘dead plaintiffs may present the jury with a powerful demonstration of the fate that awaits those claimants who are still living’; and (6) the number of defendants named in each case.”

The plaintiffs argued consolidating these cases would save time, all the plaintiffs died from mesothelioma, and all exposure occurred in the 1960s-1970s. In one case, sixteen defendants remained; in another case, Kaiser Gypsum was the only remaining defendant, and in the third case, American Biltrite was the only defendant remaining. The court noted that while judicial economy should be considered, the paramount concern was for a fair and impartial trial. State of the art evidence may differ according to occupation, industry, and/or product, and selecting a jury for a multi-plaintiff trial was more difficult. Here, 20 of the 24 defendants would be participating in a trial in which they were parties in only one of three cases; this would extend the trial and require the jury to sift through voluminous information to differentiate between claims and defenses. After analyzing all six factors, the court denied the motion to consolidate.

Read the full decision here.

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