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 predominate over the common questions of law and fact.”
In the instant matter, the parties agreed that several Malcolm factors were not in dispute, including “whether the same attorney represents plaintiffs and the same attorney represents defendant in the two actions, whether the injured persons for whom recovery is sought are living or deceased and suffered from the same disease, and the actions’ relative readiness for trial.” In addition, the remaining Malcolm factors “relate to the similarity of the circumstances under which the decedents were exposed to work that plaintiffs claim released asbestos fibers into the air: the decedents’ occupations, their work sites, and the periods over which plaintiffs claim the decedents were exposed to asbestos from defendant’s products.”
The court performed an analysis of the decedents’ work histories and found that their occupations, work sites, and respective period of claimed exposure to asbestos from the defendant’s products were “remarkably similar.” Of note, the court set forth that both decedents “worked on construction or renovation of buildings where plaintiffs claim both workers applied and sanded defendant’s joint compound on sheetrock walls and, at Kranichfeld’s work sites, other workers in his vicinity performed the same work. Thus the application and sanding processes that plaintiffs claim exposed Lanza and Kranichfeld to asbestos, as well as the products to which they were exposed, were the same.” The court also rejected the defendant’s argument that the different sizes and layouts of the decedent’s work sites would confuse the jury so as to weigh against consolidation. Further, the court found substantial overlap of the claimed periods of exposure (1970-77 and 1970-80), such that “the core issues of defendant’s knowledge about the dangers of asbestos during that period and the measures defendant could have taken to prevent those exposures will be the same.”
Thus, the court held that the substantial common issues between the two plaintiffs outweigh the potential differences, which the court characterized as minimal. The defendant is allowed to draw any differences between the two plaintiffs at the time of trial.