Plaintiff’s Motion to Consolidate Numerous NYCAL Cases into Six Trial Groups Granted Supreme Court of New York, New York County, March 21, 2016
The plaintiff moved to consolidate numerous cases into six trial groups pursuant to CPLR 602(a) on the grounds that there are common issues of law and fact. Several defendants opposed the consolidation, arguing, among other things, that they are prejudiced by joint trials, which violate their due process and equal protection rights. They also argued that the plaintiffs consistently recover more in joint trials as juries are confused in joint trials and rely on testimony in one action to bolster their determination in another action and they are deprived the right to cross-examine the witnesses in the case where they are not a party, but the jury will still use that testimony against them.
In granting the plaintiff’s motion to consolidate, the court reviewed the “Malcom 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]).”
As the court held: “One flaw in defendants’ argument is their position that consolidation is only meant for litigants ‘in nearly identical matters.’ Pursuant to CPLR section 602 (a), ‘[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.’ Trial courts have the authority to consolidate asbestos cases pursuant to CPLR 602 (a) where they involve common questions of law and fact (Matter of New York City Asbestos Litig. (Dummitt) 121 AD3d 230 [1st Dept 2014]). Moreover, ‘there is a preference for consolidation in the interest of judicial economy and ease of decision-making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right’ (Matter of Progressive Ins. Co. (Vasquez-Countrywide Ins. Co.), 10 AD3d 518 [1st Dept 2004]). While defendants assert that their substantial rights are prejudiced by joinder in asbestos cases, they have not demonstrated that such prejudice will occur in the proposed two-plaintiff trials proposed herein.”