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 and that the plaintiffs were exposed to separate asbestos containing products such that the respective descriptions of the products worked with would differ, and thus, could lead to jury confusion.
After considering the consolidation factors for asbestos cases announced in Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993) “(1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs are living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by same counsel; and (8) type of cancer alleged”), the court found that “the individual issues between [the plaintiffs] predominate o[ver] any commons questions of law and fact.” The plaintiffs’ application for a joint trial was accordingly denied.