Motion to Consolidate Granted Joining Two NYCAL Cases Against Same Defendant

The plaintiffs in two asbestos product liability actions, represented by the same attorneys, moved to consolidate for purposes of a joint trial pursuant to CPLR § 602(a). Defendant Kaiser Gypsum Company, Inc. is the single remaining defendant in both actions. In NYCAL, the plaintiffs must show that joinder is appropriate pursuant to the Malcolm v. National Gypsum Co. factors. Notably, the plaintiffs must not meet every Malcolm factor to show that joinder is appropriate. Instead, a joint trial is appropriate when “individual issues do not …

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Plaintiffs’ Failure to Establish Causal Connection Upheld in Consolidated Workers’ Compensation Claims

NORTH CAROLINA – The Court of Appeals of North Carolina recently upheld the Worker’s Compensation Commission decisions and findings in 144 consolidated cases. Numerous plaintiffs, including Walter Hinson, Charles Wilson, Douglas Epps, and Bobby James Newell, sought compensation under the worker’s compensation statute for alleged asbestos related illnesses for their work at Continental Tire in Charlotte, North Carolina from 1967-1999. The court focused on the Hinson case and analyzed the commission’s findings, which it later applied to the remaining cases. Hearings began in 2011. At …

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Mesothelioma Case Removed from Extremis Trial Group Where Plaintiff Failed to Identify New York City Defendant

Talc defendants filed an appeal of a recent mesothelioma case arguing that the plaintiff should not have been added to a fast tracked “in extremis” trial group. All defendants in this matter were talc defendants. However, the plaintiff alleged that he was exposed to asbestos from ovens in Queens when he was approximately 8-10 years old. The plaintiff alleged that he accompanied his father to work and would crawl inside the “cooled oven” to retrieve the resistors that were inside since he was the only …

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Court Refuses to Consolidate Four In Extremis Cases for Joint Trial

The plaintiffs moved pursuant to CPLR 602 for an order consolidating four in extremis cases for a joint trial: Herman Anderson, Mercedes Abreu, Patrick Demartino, and Mario Scalera. Defendant Ford opposed consolidation in all four cases. Ingersoll Rand Co. and Aurora Pump Co. also opposed in the Demartino case, Weil-McClain opposed in the Abreu case, Genuine Parts Co. and ArvinMeritor, Inc. opposed in Anderson, and Pneumo Abex Corp. and Maremont Corp. opposed in Anderson and Demartino.

In denying the plaintiffs motion to consolidate, …

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Duty to Warn Exists for Manufacturer of Products Required to be Used With Third Party Asbestos-Containing Products

Matter of New York City Asbestos Litigation (Dummitt v A.W. Chesterton, et al.), June 28, 2016

The plaintiff, Doris Kay Dummitt, filed suit in the New York Supreme Court, alleging her husband, Ronald Dummitt, was diagnosed with and passed away from mesothelioma from asbestos exposure as a result of work as a Navy boiler technician from 1960 to 1977. Plaintiff commenced this negligence and strict liability claim against Crane Co. and various other defendants who manufactured asbestos-containing gaskets, packing and insulation. In the course …

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Highest Court of New York Refuses to Consider Defendant’s Argument That Joint Trial was Improper Because Defendant Failed to Preserve Issue for Appeal

In the 1970s, the plaintiff’s decedent, Dave John Konstantin, worked as a carpenter at two Manhattan construction sites where defendant Tishman Liquidating Corporation (TLC) was the general contractor. The decedent died of mesothelioma in 2012. This case was assigned with nine other cases to an in extremis trial calendar; all 10 plaintiffs were represented by the same firm and requested a joint trial, which the defendants opposed. Seven of the 10 cases (all with mesothelioma) were ordered to be tried together, and the remaining three …

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Applying Factors Outlined by the Second Circuit, New York Court Refuses to Consolidate Three Asbestos Cases for Trial

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 …

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Plaintiff’s Motion to Consolidate Numerous NYCAL Cases into Six Trial Groups Granted

The plaintiff moved to consolidate numerous cases into six trial groups pursuant to CPLR 602(a) on the grounds that there are common issues of law and fact. Several defendants opposed the consolidation, arguing, among other things, that they are prejudiced by joint trials, which violate their due process and equal protection rights. They also argued that the plaintiffs consistently recover more in joint trials as juries are confused in joint trials and rely on testimony in one action to bolster their determination in another action …

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Plaintiffs’ Motion for Joint Trial Denied Since Individual Issues Between Plaintiffs Predominated Over Any Common Questions of Law and Fact

The plaintiffs, who had the same attorneys, commenced personal injuries actions in Nassau County Supreme Court, alleging personal injuries as a result of exposures to asbestos.  In support of the motion, it was noted that each plaintiff was still alive and suffering from lung cancer, were exposed to the same or similar materials during a similar time frame, that common defendants existed, and that the non-parties would overlap.  The defendants opposed on several grounds, including that the distinctions between the individual plaintiffs made joinder inappropriate …

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NYCAL Court Permits Discovery of Non-Party Co-Author of Article Analyzing Verdicts in Association with Consolidated Trials

In this NYCAL case, Justice Peter Moulton denied the defendants’ motion seeking to quash a subpoena served by Weitz & Luxenberg P.C. upon Mr. Marc Scarcella of Bates, White LLC, an economic consulting firm. Mr. Scarcella co-authored an article entitled, “The Consolidation Effect:  New York City Asbestos Verdicts, Due Process and Judicial Economy.” In summary, the article analyzed verdicts in association with consolidated trials in NYCAL.

In denying the motion to quash, the court began its opinion by noting that the Defendants “concede[d] that [the …

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