NYCAL Court Consolidates Some Cases But Not Others Supreme Court of New York, New York County, July 25, 2015
In this NYCAL decision, the court assessed the consolidation of five remaining cases and ended up grouping two cases into Trial Group 1, two cases into Trial Group 2, and left one case to be tried on its own. The court’s reasoning for the decision is the following:
“Applying the Malcolm factors, I conclude the cases are properly consolidated into Trial Group 1 and Trial Group 2, with the Valensi case to be tried separately. Valensi is distinguishable from the other cases, as it is the only case in which take home exposure and bystander exposure from friction products are alleged. Specifically, it is alleged that Ms. Valensi was exposed to asbestos while laundering her mother’s work clothing, and while visiting her mother at her place of work, where Ms. Valensi watched laborers in a machine shop work on friction products.
“There is sufficient commonality in Trial Groups 1 and 2 to warrant consolidation. Plaintiffs in each group are represented by the same counsel, and in all cases discovery is complete. Moreover, plaintiffs in each group are deceased and suffer from the same disease, either lung cancer or mesothelioma, and thus, the medical evidence as to the etiology and pathology of the disease will overlap.
“As to Trial Group 1, Mr. Flahive and Mr. Germain both allege exposure to asbestos-containing products caused them to develop lung cancer, and both allege exposure during work in the 1960s and 1970s, so that medical and the state of the art evidence will overlap. While Mr. Flahive alleges exposure from work as a metal lather and Mr. Germain as a consulting engineer, both allege exposure on construction sites and to various products used on such sites, so that the manner of exposure is similar.
“As to Trial Group 2, Mr. Izbicki and Mr. Jalowski both allege exposure to asbestos caused them to develop mesothelioma, and both allege exposure while working with boilers, valves, pump insulation, gaskets and packing, Mr. Izbicki while working as a machinist’s mate and Mr. Jalowski as a repairman. Thus, in this trial group, in addition to the medical evidence, the evidence as to the manner of exposure will overlap.”