Supreme Court of New York, New York County (NYCAL)
In this asbestos action, the plaintiff moved for a joint trial of two actions: Rullo v. ABB. Inc., et al. and Scandaliate v. ABB Inc., et al. In NYCAL. Two cases may be joined for trial where the plaintiff demonstrates that joinder is warranted under Malcum v. National Gypsum Co., 995 F.2d 346 (2nd Cir. 1993). Under Malcum, the following factors are to be considered: (1) common worksites; (2) similar occupation; (3) similar …
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Supreme Court of New York, Appellate Division, First Department, November 16, 2021
In this asbestos action, the Supreme Court of New York, Appellate Division, First Department, affirmed a September 2020 New York City Asbestos Litigation (NYCAL) decision to consolidate two asbestos exposure actions. The court noted that each exposure action involves common questions of law and fact, and that the defendants have not established that they will be prejudiced by a joint trial of the actions.
In reaching its decision, the court cited the following …
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Supreme Court of New York, New York County, November 5, 2021
In this asbestos action, the plaintiff Ferris O. Tyron alleged exposure to asbestos from Foster Wheeler products. In response, Foster Wheeler moved for summary judgment, asserting that New Jersey law is proper for this action, and, as such, the New Jersey Statute of Repose bars any alleged exposure attributable to Foster Wheeler products.
In support of their motion for summary judgment, Foster Wheeler asserted that the majority of the plaintiff’s employment locations were in …
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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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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 …
Continue ReadingTalc 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 …
Continue ReadingThe 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, …
Continue ReadingMatter 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 …
Continue ReadingIn 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 …
Continue ReadingThe 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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