First Department Affirms NYCAL Consolidation Decision

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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 facts: each decedent was allegedly exposed to asbestos as a result of sanding and cutting the same solely-remaining defendant’s joint compound, counsel in both actions are identical, the alleged exposure was for a similar amount of time, and both decedents died of the same disease. Notably, the court stated that the fact that one decedent was a painter and the other was a carpenter is a “distinction without a difference”. Finally, with regard to exposures to products not manufactured by the defendants, the court noted that these exposures can be addressed through carefully crafted juror instructions and special verdict sheets.

Read the full decision here.