Court Refuses to Consolidate Four In Extremis Cases for Joint Trial Supreme Court of New York, New York County, July 27, 2016
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, the court reviewed the “Malcolm Factors” — (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged” (Malcolm v National Gypsum Co., 995 F2d 346, 350-351 [2d Cir 1993]).”
The court noted that in contrast to the trend of NYCAL of consolidates asbestos trials, some state courts such as Ohio, Texas, Kansas, Georgia, and Michigan, do not consolidate asbestos trials absent the consent of all parties. The court explained that “[a]sbestos matters ought not be consolidated for trial simply because doing so has been the routine, nor should the terms “efficiency” and ”judicial economy” be used to justify consolidation where experience has shown that it generally does not advance these lofty goals. The court also pointed out that state-of-the-art evidence may vary according to occupation, industry, or products; that medical evidence pertaining to mesothelioma in general takes less trial time than that spent on each plaintiff’s medical history; and that the difficulty inhering in selecting a jury for a multi-plaintiff trial militates against consolidation.
Turning to each of the individual cases, the court found that the commonalities were outweighed by the differences and consolidation was not warranted. The Anderson exposure history was the only to predate OSHA and last more than 30 years, requiring different state of the art evidence from the other plaintiffs and was a case that may require application of foreign law. Moreover, the Anderson case was the only involving brake jobs, involved a site not common with the other plaintiffs, and did not involve exposures to asbestos-containing insulation. The Demartino case differed from the others because his mesothelioma was the only not diagnosed as pleural mesothelioma necessitating different and unique medical evidence. Demartino’s occupation and worksite also differed. The Scalera case was the only to involve direct exposures to insulation and of the defendants in Scalera one was in no other actions. Finally, Abreu was the only case based on secondhand exposure through the work of another and the sole defendant remaining in the case was not in the other four cases.