mzamy’ ELEEK"661 4 7 / 20
`INDEX NO. 190147/2015
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`RECEIVED NYSCEF: 05/05/2017
`NYSCEF DOC. NO. 146
`RECEIVED NYSCEF: 05/05/2017
`
`EXHIBIT F
`
`

`

`
`
`—_FILED§W1§IEWQORK'COUNTY CLERK 05 Lay—M703:1767HPW
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
`
`"INDWE’im
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`Borman v. A.O. Smith Water Products Co., 2015 WL 7188355 (2015)
`
`2015 WL 7188355 (N.Y.Sup.), 2015 NY. Slip Op. 32109(U) (Trial Order)
`Supreme Court, New York.
`Part 12
`
`New York County
`
`BORMAN, Frances,
`V.
`
`AC. SMITH WATER PRODUCTS CO.
`
`No.190115/o8.
`August 3, 2015.
`
`Trial Order
`
`Thomas M. Comerford, Esq., Weitz & Luxenberg, RC, 700 Broadway, New York, NY 10003, 212-558-5500, For
`plaintiff.
`
`Mark K, Hsu, Esq., Joanna Drozd, Esq., Hawkins Parnell et al., 600 Lexington Ave., 8th 11., New York, NY 10022,
`212-897—9655, For Oakfabco.
`
`Suzanne M. Halbardier, Esq., Barry, McTiernan & Moore, 2 Rector St., 14th fl., New York, NY 10006, 212-313-3600,
`For Domco/Azrock.
`
`Andrew J. Mundo, Esq., Lynch Daskal et al., 264 W. 40 th St., 18 th 11., New York, NY 10018, 212-302-2400, For joint
`defendants.
`
`Timothy Coughlan, Esq., Forman Watkins et al., 328 Newman Springs Rd., Red Bank, NJ 07701, 732—852—4400, For
`Velan Valve Corp.
`
`Thuy T, Bui, Esq., Drinker Biddle & Reath LLP, 1177 Ave. of the Americas, 41 St
`212-248—3140, For Neles—Jamesbury.
`
`f1., New York, NY 10036,
`
`Shawnette A. Fluitt, Esq., Barry McTiernan & Moore LLC, 2 Rector St., 14th 11., New York, NY 10006, 212-313-3600,
`For Cleaver Brooks.
`
`Joshua A. Greeley, Esq., Pascarella DiVita, PLLC, 2137 Ste. 35, Ste 290, Holmdel, NJ 07725, 732-837~9019, For Bird.
`
`Present: Jaffe, Justice.
`
`*1 [This opinion is uncorrected and not selected for official publication]
`
`The following papers, numbered 1 to
`
`, were read on this motion to/for
`
`Notice of Motion/Order to Show Cause — Affidavits — Exhibits
`
`No(s). I
`
`Answering Affidavits —— Exhibits
`
`Replying Affidavits
`
`No(s). 2 - 9
`
`No(s).
`
`
`aim Rattler/:3, No claim to menial 1,1 333. Novella:pent V‘v‘orks,
`
`1
`
`

`

`FILED:
`W YORK COUN‘Y CLERK *o*5’2“017'"63:1e P
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
`
`INDEX NO- 190147/‘2015
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`Borman v. A.O. Smith Water Products Co., 2015 WL 7188355 (2015)
`
`Upon the foregoing papers, it is ordered that this motion is
`DECIDED IN ACCORDANCE WITH ACCOMPANYING DECISION/ORDER
`
`Dated: 8/3/15
`
`<<signature>>, J.S.C.
`
`BARBARA JAFFE
`
`J.S.C.
`
`BARBARA .IAFFE, J.:
`
`DECISION AND ORDER
`
`By order to Show cause, plaintiffs move pursuant to CPLR 602 for an order consolidating the following “FIFO” (First
`
`In, First Out) cases for a joint trial: (1) George Brady, Index No. 190115/08; (2) John Carey, Index No. 126304/93; (3)
`Robert Castorina, Index No. 123077/01; (4) William Falkenmeyer, Index No. 190116/10; (5) Charles Frick, Index No.
`190120/08; (6) Donald McCormick, Index No. 190195/09; (7) Bart Miceli, Index No. 100057/99; (8) Paul Miller, Index
`No. 190174/09; (9) Edward Morgan, Index No. 123392/1997; (10) Richard Nash, Index No. 116095/02; (11) Dennis
`Padula, Index No. 101177/99; (l2) Romeo Pettinelli, Index No. 118400/98; and (13) John Ward, Index No. 118998/02.
`
`Plaintiff seeks to try the cases in two groups: (a) Group one - Brady, Carey, Falkenmeyer, Frick, McCormick, Miceli,
`Miller, and Ward; and (b) Group two — Castorina, Morgan, Nash, Padula, and Pettinelli.
`
`Defendants jointly oppose; separate opposition is submitted by defendants Oakfabco, Inc. in the Brady and Frick actions,
`Cleaver Brooks, Inc. in the Frick and Pettinelli actions, Neles-Jamesbury Inc. in the Miceli action, Domco Products
`
`Texas, Inc. (Azrock) in the Morgan action, Velan Valve Corp. in the Miceli action, and Bird Incorporated in the Padula
`matter.
`
`I. APPLICABLE LA W
`
`Pursuant to CPLR 602(a‘), a motion for a joint trial rests in the discretion of the trial court. (See Matter of New York
`
`City Ashes/m Litigation [Dammit]. 121 AD3d 230 [1 st Dept 2014]; In re New York City Asbestos Lirig. [Baruch], 111
`
`AD3d 574 [1 st Dept 2013]; JP Foodservic'e Distrib, Inc. v Priceertar/museCoopers LLP, 291 AD2d 323 [1 St Dept 2002];
`Rodgers v Worre/l, 214 AD2d 553 [2d Dept 1995]).
`
`Generally, in order to join actions for trial, there must be a “plain identity between the issues involved in the [ ]two
`controversies.” (Viggo S. S. Corp. v Mars/zip Corp. Q/Jl/Ionrovia, 26 NY2d 157 [1970]; Geneva Temps, Inc. v New World
`
`Communities, 1110., 24 AD3d 332 [1 St Dept 2005]). A motion for a joint trial should be granted unless the opposing party
`
`demonstrates prejudice to a substantial right (in re New York City Asbestos L-i/ig. [ Bernard/, 99 AD3d 410 [1 st Dept
`2012]), and allegations of prejudice must be specific and not conclusory (Dwnmz‘z‘t, 121 AD3d at 245). However, a joint
`trial should not be granted if individual issues predominate over common ones. (Id).
`
`’3“:’1.:‘i»'il
`
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`
`t Momma 2¥E<«;-t.zii:—.is;. No «71:51am in (nicginstsi 1.3.3?)
`
`(73:3omerm‘ient \?\.foz‘i<:5;
`
`.2
`
`

`

`FILED: NEw”*Yo§i{cotifiT”y"Efi
`05 my 2017 03:16 P
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
`
`‘
`INDEX N5777190i’4772'01'757
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`Borman v. A.O. Smith Water Products C0,, 2015 WL 7188355 (2015)
`
`In determining whether to consolidate individual plaintiffs' cases for a joint trial where exposure to asbestos is alleged,
`courts consider the factors set forth in Malcolm v Nil. Gypsum Cu, 995 F2d 346 (2d Cir 1993), which follow, in pertinent
`part:
`
`*2 (1) whether the plaintiffs worked at a common or similar worksite;
`
`(2) whether the plaintiffs had similar occupations, as a “worker's exposure to asbestos must depend mainly on his
`occupation,” such as those who worked directly with materials containing asbestos as opposed to those who were exposed
`to asbestos as bystanders;
`
`(3) whether the plaintiffs were exposed to asbestos during the same period of time;
`
`(4) whether the plaintiffs suffer or suffered from the same disease, as the jury at a consolidated trial will hear evidence
`about the etiology and pathology of different diseases, and prejudice may result where the jury learns that a terminal
`cancer engenders greater suffering and shorter life span than does asbestosis;
`
`(5) Whether the plaintiffs are alive; “dead plaintiffs may present the jury with a powerful demonstration of the fate that
`awaits those claimants who are still living”; and
`
`(6) the number of defendants named in each case.
`
`(NIH/trolm, 995 PM at 350—353).
`
`To reduce juror confusion and minimize any alleged prejudice to defendants in consolidated cases, the court may use
`techniques such as providing “limiting, explanatory and curative instructions,” giving notebooks to jurors to “assist
`them in recording and distinguishing the evidence in each case,” and presenting the jurors with plaintiff-specific verdict
`questions and sheets. (Dummi/t. 121 AD3d at 245).
`
`II. PLA INTIFFS‘ INFORMA TION
`
`1. George Brady
`
`Brady passed away from lung cancer on May 31, 2007 at the age of 78. From 1946 to 1964, he served in the US Navy,
`and worked as a boilermaker on ships and at shipyards, when he was allegedly exposed to asbestos-containing boilers,
`evaporators, turbines, generators, pipes, gaskets, and blankets. From 1968 to 1986, Brady worked at Lehman College as a
`fireman, custodial engineer, and superintendent, maintaining boilers, pumps, and valves, and thereby allegedly exposing
`himself to asbestos—containing jackets, gaskets, lagging, cement, pipe insulation, and spray. From 1966 to 2007, Brady
`was employed as a superintendent at a building in the Bronx, where he was allegedly exposed to asbestos-containing
`boilers, valves, pumps, and joint compound. Defendants remaining in his action are Crane Co., Goulds, Oakfabco, and
`
`Westinghouse. (Affirmation of Thomas M. Comerford, Esq., dated May 11, 2015 [Comerford Aff] ).
`
`2. John Carey
`
`Carey died from lung cancer on February 17, 2010 at the age of 75. From 1959 to 1993, he worked as a steamfitter at
`
`worksites throughout New York State, including powerhouses, universities, hospitals, schools, manufacturing plants,
`and commercial buildings. He was allegedly exposed to asbestos from insulation, firebrick, and gaskets used with
`generators, boilers, pumps, and valves. Defendants remaining in his action are Crane Co., Foster Wheeler, and Owens-
`Illinois, Inc. (Comerford Aft).
`
`“hit” 12'
`
`1901. I
`
`:immzrsou tlieitt‘ers, No claim in origami 11.531, Cove: irritant Works,
`
`

`

`FILED:
`w YORK COUN Y CLERK 052015 03516
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
`
`rNoEx NO. 190147/2015
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`Borman v. A.O. Smith Water Products Co., 2015 WL 7188355 (2015)
`
`According to defendants, Carey spent almost his entire career working at the Indian Point powerhouse, and he smoked a
`
`pack of cigarettes a day from 1945 to 1960. (Affirmation of Andrew J. Mundo, Esq., dated June 8, 2015 [Mundo Aff.] ).
`
`3. Robert Castorina
`
`*3 Castorina passed away on March 12, 2013 from lung cancer at the age of 69. From 1963 to 1998, he worked as
`
`a carpenter for numerous employers and at commercial and residential worksites in the metropolitan New York area.
`During that time, he was allegedly exposed to asbestos from sweeping and cleaning up asbestos-containing materials and
`while other workers were using asbestos, including mixing and applying asbestos insulation on boilers and piping and
`using asbestos-containing gaskets to maintain and repair pumps and valves; air-brushing electrical motors in elevators;
`and working with joint compound and floor tiles while putting up walls. He also was present when asbestos was
`sprayed during the construction of the World Trade Center, and worked in every building in Coop City, including the
`powerhouse. (Comerford Aff.).
`
`Defendants remaining in his action are A.O. Smith, Burnham, Crane C0,, DB Riley, Foster Wheeler, Goodyear, Goulds,
`Kohler, Mario & DiBono, Owens-Illinois, Inc., Peerless, Tihman (WTC), Westinghouse, and Weil-McLain. (Id).
`
`Defendants note that Castorina is the only plaintiff who alleged exposure from cutting rubber blankets while working
`at a printing company, and that between 1963 and 1998, he worked at over 80 different sites. (Mundo Aff).
`
`4. William Falkenmeyer
`
`Falkenmeyer died at the age of 60 from lung cancer on July 18, 2008. He worked as a wire lather in 1968, an asbestos
`
`worker from 1974 to 1975, and a truck driver and dispatcher from 1976 to the 1990s. As an asbestos worker, he sprayed
`asbestos—containing ceiling insulation in various structures. From 1977 to 1979, while working for Wechter Fuel Oil,
`he removed boilers and was exposed to insulation and rope. As a dispatcher, Falkenmeyer was allegedly exposed to
`asbestos-containing brakes while performing vehicle repairs. Defendants remaining in his action are Burnham, Foster
`Wheeler, Peerless, Westinghouse, and Weil-McLain. (Comerford Aff.).
`
`Defendants contend that Falkenmeyer worked directly with asbestos products on a very limited basis between 1977 and
`
`1979, and that as most of his work was as a truck driver and dispatcher, his exposure to boilers and roofing material was
`minimal. They also observe that Falkenmeyer smoked cigarettes for approximately 50 years. (Mundo Aff).
`
`5. Charles Frick
`
`Frick passed away from lung cancer on January 11, 2007 at the age of 75. From the 1960s to the mid-1980s, he worked for
`
`Tulio Oil Company as a boiler serviceman, and was allegedly exposed to asbestos by installing and removing boilers at
`various worksites in the metropolitan New York area which exposed him to asbestos-containing insulation, cement, and
`gaskets. He also maintained the boilers in his own home and another house he owned, and performed home improvement
`in the 1960s, exposing him to wallboard, joint compound, and vinyl asbestos tile. Defendants remaining in his action are
`Burnham, Cleaver Brooks, Crane C0,, Oakfabco, Owens-Illinois, Peerless, and Weil-McLain. (Comerford Aff.).
`
`Defendants observe that Frick had a 62-year history of smoking cigarettes. (Mundo Aff).
`
`6. Donald McCormick
`
`y
`.2 thinners. :
`
`\lo oiais'ra to original L313, (Soverm‘zrent: \flforks.
`
`4
`
`

`

`FILE: NEW YORK COUNTY CLERk‘ 05027017 03:16 P
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
`
`‘
`INDEX NO- 190147/2015
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`Borman V. AC. Smith Water Products 00., 2015 WL 7188355 (2015)
`
`McCormick died from lung cancer on April 23, 2013 at 79 years old. From 1952 to 1995, he worked for Alcoa Reynolds
`Metal in Massena, New York. Between 1971 and 1995, he worked in the remount/ingot plant as a helper, furnace
`worker, melter, and truck driver, and was allegedly exposed to asbestos from cleaning up asbestos—containing insulation
`materials, aprons, and Spats, by using asbestos~containing cloth plugs, and by working near insulation on boilers, pumps,
`valves, and motors. Defendants remaining in his action are Goulds, Owens-Illinois, and Westinghouse. (Comerford Aff.).
`
`Defendants contend that McCormick's exposures differ from those of the other plaintiffs due to the location and the
`nature of his employment, and observe that he smoked cigarettes for 62 years. (Mundo Aff.).
`
`7. Bart Miceli
`
`*4 On August 22, 2011, Miceli died from mesothelioma at the age of 86. From 1950 to 1980, he worked as a maintenance
`
`person and foreman at three nuclear power powerhouses, and was allegedly exposed to asbestos while working with
`or around others working with boilers, pumps, turbines, valves, blankets, block, cement insulation, gaskets, insulation,
`and pipe-covering. Defendants remaining in his action are Byron Jackson, Crane, Foster Wheeler, Goulds, IMO, ITT,
`Neles-Jamesbury, Inc, Velan Valves Corp, and Westinghouse. (Comerford Aff.).
`
`8. Paul Miller
`
`Miller was diagnosed with lung cancer on November 14, 2007 and is now 84 years old. From 1950 to 1983, he worked as
`a pipefitter at Bethlehem Steel, and was allegedly exposed to asbestos from working on steam lines, removing asbestos-
`containing pumps, valves, insulation, cement, and gaskets, and from nearby coke ovens, open hearths, and blast furnaces.
`He also worked near boilermakers installing gaskets and insulation, bricklayers re—bricking ladles, and electricians
`working on motors, generators, and turbines. Defendants remaining in his action are Crane, DB Riley, Foster Wheeler,
`Goodyear, Goulds, Owens—Illinois, Treadwell, and Westinghouse. (Comerford Aff.).
`
`Defendants observe that Miller was diagnosed with prostate cancer in 1996 and bladder cancer in 2008, and that he
`
`smoked up to a pack and a half of cigarettes for approximately 50 years, and that his wife smoked during their marriage
`for approximately 37 years. (Mundo Aft).
`
`9. Edward Morgan
`
`On May 20, 2009, Morgan was diagnosed with lung cancer; he is now 55 years old. From 1974 to 1993, he worked
`as a laborer, millwright, and carpenter at various worksites, including SUNY Institute of Technology, Fitzpatrick
`powerhouse, commercial buildings, manufacturing plants, train stations, and residential homes. He was allegedly
`exposed to asbestos while working on new construction and renovation projects by putting up and tearing down walls,
`tearing out and installing floor tile, ripping out asbestos-wrapped piping and ductwork, and working around other trades,
`including electricians, pipefitters, and plumbers. Morgan was also allegedly exposed to asbestos-containing sheetrock,
`wallboard, millboard, plaster, pipe-covering, cement, joint compound, insulation, gaskets, firebrick, ceiling and floor
`tiles, and asbestos contained in boilers, generators, pumps, turbines, and valves. Defendants remaining in his action are
`Azrock, Foster Wheeler, Goulds, Owens—Illinois, Westinghouse, and Weil—McLain. (Comerford Aff).
`
`Defendants observe that most of Morgan's exposure to asbestos occurred when he observed others work, and that his
`
`health history includes having been diagnosed with pneumonia eight times and chronic obstructive pulmonary disease,
`as well as having smoked between one and two packs of cigarettes a day for 33 years. (Mundo Aff.).
`\
`
`
`
`
`
`(a?) ‘20 12” "Sherman Reuters, No daim to original 1.1.5:. Government Works.
`
`5
`
`

`

`
`——FILED:NEW mm?c’oufiWmmmmwflo7155149W
`INDEX NO. 190147/2015
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`RECEIVED NYSCEF: 05/05/2017
`NYSCEF DOC. NO. 146
`RECEIVED NYSCEF: 05/05/2017
`
`Borman v. A.O. Smith Water Products (20., 2015 WL 7188355 (2015)
`
`10. Richard Nash
`
`Nash passed away from lung cancer on April 10, 2009 at the age of 84. From 1940 to 1943 and in 1946, he worked
`
`as a plumber and was allegedly exposed to asbestos while repairing and installing piping around furnaces, including
`mixing asbestos joint cement, pipe-covering, and gasket repair. From 1951 to 1979, he worked as carpenter and plumber
`on new construction and renovations at various worksites, including high schools, colleges, housing projects, hospitals,
`shopping malls, and commercial manufacturing plants, and was allegedly exposed to asbestos while working around
`other trades working on pumps, turbines, and valves. Defendants remaining in his action are Crane, Goulds, Owens-
`Illinois, and Westinghouse. (Comerford Aff.).
`
`*5 Defendants argue that Nash‘s exposure to asbestos was mainly as a bystander, and that he smoked one pack of
`cigarettes per day for 29 years. (Mundo Aff.).
`
`11. Dennis Padilla
`
`Padula died at the age of 64 from lung cancer on January 31, 2015. From 1959 to 1996, he worked as a roofer for
`
`Continental Roofing at several commercial and residential locations in and around Utica, New York. He was allegedly
`exposed to asbestos from unrolling, cutting, and nailing roofing felt; from roofing cement when he cleaned application
`trowels, from roofing caulking compound, and from insulation and piping during boiler installation and removal.
`Defendants remaining in his action are A.O. Smith, Bird, DAP, Foster Wheeler, Goulds, Karnack, Owens-Illinois,
`Peerless, and Westinghouse. (Comerford Aff.).
`
`.
`
`1
`
`‘
`
`Defendants assert that Padula is the only roofer in proposed group two, that he served in the US Navy between 1967
`and 1969, and that although he denies having worked on a Navy vessel, he was exposed to Agent Orange during the
`Vietnam War and was treated for that vessel, he was exposed to Agent Orange during the Vietnam War and was treated
`for that exposure for 30 years. (Mundo Aff.).
`
`12. Romeo Pettinelli
`
`On November 5, 1996, Pettinelli died from lung cancer at the age of 68, From 1948 to 1987, he worked as a carpenter and
`
`performed renovation work on residential and commercial properties, including housing apartments, shopping malls,
`
`schools, and manufacturing mills. He was allegedly exposed to asbestos contained in drywall, joint compound, floor
`tiles, and boilers, and his work with pumps and boilers allegedly exposed him to insulation, piping, gaskets, and asbestos
`board. Pettinelli also swept up asbestos after completing his work. Defendants remaining in his action are Cleaver
`Brooks, Foster Wheeler, Goodyear, Goulds, and Weil—McLain. (Comerford Aff.).
`
`13. John Ward
`
`Ward died of mesothelioma on February 1, 2004 at the age of 78. From 1946 to 1989, he worked as a steamfitter at
`
`various metropolitan New York worksites including the Astoria, Hudson, 74 th Street, Ravenswood, and Shoreham
`powerhouses, the Pfizer building, Mount Sinai Hospital, the Port Authority, and JFK Airport. He was allegedly exposed
`to asbestos from insulation and piping during installation of boilers, installation and removal of gaskets on pumps
`and valves, and pipe-covering. Defendants remaining in his action are A.O. Smith, Foster Wheeler, and Westinghouse.
`(Comerford Aff.).
`
`III. ANAL YSIS
`
`'r’v‘r’ t1; ‘1‘l,_,ii~.‘i‘xi
`
`<32! 201)" “t'Siomzson Routers. No (dawn to origh‘ial 0.8. Ocvemr‘nent Works.
`
`6
`
`

`

`FILED: NEW YORK CUNTY CLERK 0527017 7037:0180?”
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
`
`‘
`INDEX NO- 190147/2015
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`Borman v. A.O. Smith Water Produets (30., 2015 WL 7188355 (2015)
`
`A. Judicial economy
`
`Plaintiffs argue that consolidating these cases Will save time and lead to more efficient and speedier dispositions as the
`same state of the art evidence and medical evidence will be offered at each trial. (Comerford Aff.).
`
`Defendants assert that the more plaintiffs in a trial group, the more defendants, and the correspondingly longer time
`needed for jury selection and trial. And, when a multi-plaintiff trial is scheduled, jurors are asked to serve weeks if
`not months. Thus, they maintain, finding jurors who will commit to a lengthy trial prolongs jury selection, as does
`the necessity of selecting extra alternates against the possibility that one or more jurors will be released before the trial
`
`concludes. Defendants also observe that jurors who are students or professionals and/or hold managerial or supervisory
`positions may be unable to serve for a long period, yielding a less diverse pool. (Mundo Aff.).
`
`*6 In denying plaintiffs' claim that consolidation results in speedier dispositions, defendants offer statistics reflecting
`that of the most recent 19 asbestos trials in New York County, those with only one plaintiff lasted up to three weeks
`each, whereas those with more lasted as long as 18 weeks. Defendants also argue that longer trials involving more than
`one plaintiff almost always lead to large plaintiff verdicts, while trials with one plaintiff often lead to defense verdicts or
`
`smaller plaintiff verdicts. Their statistics show that of the nine trials in New York County with one plaintiff, six resulted
`in defense verdicts, and the other three in verdicts of $2.5 million, $3.8 million, and $7 million. In contrast, of the ten trials
`
`conducted with more than one plaintiff, only one had a defense verdict, and the remaining aggregate verdicts ranged
`from $7.3 million to $190 million, or between $2.43 million at the lowest and $38 million at the highest per plaintiff,
`representing an average of approximately $9 million per plaintiff. (Id).
`
`Defendants also observe that the large verdicts are often reduced by the trial or appellate courts, illustrating a disconnect
`between juror verdicts in those cases and the sustained verdicts. They thus argue that there is no great efficiency in trying
`consolidated cases as final judgments must often await appellate scrutiny and decision. (Id).
`
`In juxtaposition to the alleged New York County consolidation trend (see In re New York City Asbestos Litigation, 188
`
`AD2d 214 [1 St Dept 1993], qfflz’ 82 NY2d 821 [joint trials may potentially reduce cost of litigation, promote judicial
`economy, speed disposition of cases, and encourage settlements]; Manor ofNew York City Asbestos Litigmion [.Dwmnit],
`36 Misc 3d 1234[A], 2012 NY Slip Op 51597[U] [Sup Ct, New York County 2012] [in New York County, asbestos cases
`have historically been consolidated for trial] ), other state courts have recently decided to prohibit the consolidation of
`asbestos trials absent the consent of all parties. (Ohio R Civ P 41 [A][2]; Tex Civ Prac & Rem Code Ann § 90.009; Kan
`Stat Ann § 60—4902[j]; GA Code Ann § 51-14—1 0; Mich Admin Order No. 2006-6).
`
`And, while judicial economy and efficiency should be considered in determining whether to consolidate, they “must yield
`to a paramount concern for a fair and impartial trial.” (Johnson v Celotox Corp, 899 F 2d 1281 [2d Cir 1990]). “The
`systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take
`care that each individual plaintiffs — and defendant's — cause not be lost in the shadow of a towering mass litigation.” (In re
`Brooklyn Navy Yard Asbestos Ling. 971 F2d 831 [2d Cir 1992]; see also NIH/calm, .995 F2d at 350 [“benefits of efficiency
`can never be purchased at the cost of fairness”] ). Asbestos 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.” (In re New York City Asbestos Lilig.
`[130m], 2014 WL 4446457, 2014 NY Slip Op 32336[U] [Sup Ct. New York County 2014]).
`
`However, consolidating cases that are somewhat diverse does not “suggest the prejudice of defendant's right to a fair
`
`trial.” (In the Mal/er ofan» York City As/u-Iszos Litigation [Baruch], 111 AD3d 574 [1 St Dept 2013]). Moreover, state
`of the art evidence differs according to the pertinent occupation or industry, and may differ according to the product.
`(See Curry v Am. Standard, 2010 WL 6501559 [SD NY 2010] [differences in degree and duration of plaintiffs' asbestos
`
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`W—W’cowficfERK ‘05 Lay-2017'_m3:16P
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
`
`INDEX NO-
`i951477551'57
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`Borman v. A.O. Smith Water Products Co., 2015 WL 7188355 (2015)
`
`exposure would likely require presentation of different complex state-of-art evidence in each case, further mitigating
`against potential efficiency of consolidation] ). And, while medical evidence may be duplicative, it takes less trial time
`than that spent on each plaintiff‘s medical history. Thus, the length of the trial often depends on the plaintiffs' occupations
`and medical histories.
`
`*7 Accordingly, in exercising my discretion in deciding whether to consolidate these cases, I duly consider judicial
`economy and efficiency.
`
`B. Group one - Brady, Carey, Falkenmeyer, Frick, McCormick, Miceli, Miller, Ward
`
`Oakfabco, a defendant in the Brady and Frick actions, argues that these plaintiffs do not share a common disease,
`
`occupation, worksite, or time period, that the fact that some of the plaintiffs smoked cigarettes for many years will be
`central to the defenses in those cases but not the others, and that the joinder of plaintiffs who are deceased with those
`who are living is prejudicial. (Affirmation of Mark K. Hsu, Esq., dated June 8, 2015).
`
`Velan objects to having to participate in a lengthy trial when it is a defendant in only Miceli's action, and observes
`that Miceli was not exposed to many products to which the other plaintiffs were exposed, did not work in the same
`
`geographical area as the other plaintiffs, and did not have a similar job title or type of exposure. (Affirmation of Timothy
`Coughlan, Esq., dated June 8, 2015).
`
`Neles-Jamesbury asserts that Miceli's history has no commonality with that of the other defendants, and that as he is
`deceased, there is no urgency that requires that his case be tried jointly with the others. It also observes that he and
`one other plaintiff had mesothelioma, while the other six plaintiffs suffered from lung cancer, and that different medical
`testimony will thus be necessary if the cases are consolidated. (Affirmation of Thuy T. Bui, Esq., dated June 8, 2015).
`
`Cleaver Brooks argues that the Malcolm factors do not apply here, as 38 defendants remain in the actions, the exposure
`periods range from the 1940s to the 1990s, and the plaintiffs held a variety of occupations, had different claimed
`
`exposures, and had no common worksites. It also contends that the exposure period is significant because guidelines
`promulgated by the Occupational Health and Safety Act (OSHA) will be at issue in certain cases but not others, and
`
`those that involve pre-OSHA exposure will be prejudiced by the trial presentation of OSHA guidelines. It also asserts
`
`that discovery is not complete in the Frick action as it has filed a third-party action against Frick's employer and is
`awaiting its answer in order to conduct discovery. (Affirmation of Shawnette A. Fluitt, Esq., dated June 8, 2015).
`
`1. Brady
`
`Brady is the only plaintiff with exposure related to his service with the Navy, and the only one who was exposed on ships
`and at shipyards. His Navy exposure may raise issues that are not relevant in the non-Navy cases. (See In re New York
`
`City Asbestos Lilig. [Carlin-Ci], 2013 WL 5761459, 2013 NY Slip Op 32548[U] [Sup Ct. New York County] [consolidating
`
`for trial plaintiffs that had common worksite on Navy Ships]; In re New York City Asbestos Lirig. [Horn], 2010 WL
`3613150. 2010 N Y Slip Op 32462[U] [Sup Ct, New York County] [same]; In re New York City Asbestos Lirig. [ Capozio],
`22 Misc 3d 1 190[A], 2009 NY Slip Op 50072 [Sup Ct. New York County 2009] [separating plaintiff from others based on
`
`Navy employment as federal law may be implicated]; In re New York City Asbestos Lirig. [Bauer], 2008 WL 3996269,
`2008 NY Slip Op 32349[U] [Sup Ct, New York County 2008] [same]; In re New York City Asbestos Ling. [Alt/zolz],
`11 Misc 3d 1063[A], 2006 NY Slip Op 50375 [Sup Ct. New York County 2006] [if federal maritime law at issue, may
`confuse jury to sort of varying elements of liability and damage under negligence and products liability standards and
`
`those under federal maritime law]; In the Muller o/‘AS'evc-m/i Jud. Dist. Asbeszos Lizig. [Ballard], 191 Misc 2d 625 [Sup
`Ct, Monroe County] [separating from joint trial two plaintiffs who were exposed to asbestos while in Navy] ).
`
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`

`FI ED: NEW YORK COUNTY CLERIEW052017 03:16 P
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
`
`‘
`
`INDEX NOV 190147/2015 7
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`1
`
`Borman v. A.0. Smith Water Products 00., 2015 WL 7188355 (2015)
`
`*8 His employment as a superintendent is unique, and he was also the only one exposed to asbestos—containing
`evaporators, jackets, and lagging.
`
`2. Miller
`
`Miller worked at only one location, Bethlehem Steel, for his entire career as a pipefitter, and is the only plaintiff in this
`group that is still alive. He was uniquely exposed to asbestos through work on steam lines, and by exposure through
`others working with or near brick ladles, coke ovens, open hearths, and blast furnaces. Of the remaining eight defendants
`in his action, three are in no other actions in this group.
`
`3. McCormick
`
`McCormick also only worked for one employer and at one location, Alcoa Reynolds Metal, for his entire career. He
`worked in various capacities for Alcoa, including as helper, furnace worker, melter, and truck driver, and was the only
`one exposed to aprons, spats, and cloth plugs and by virtue of cleaning or sweeping up material containing asbestos.
`
`4. Miceli and Ward
`
`Miceli and Ward are the only two plaintiffs who developed mesothelioma in this group. (See In re New York City
`Asbestos Litig. [Adler], 2012 WL 326720, 2012 NY Slip Op 32097[U] [Sup Ct, New York County] [separating for trial
`plaintiffs with lung cancer from those with mesothelioma as pathology of lung cancer different than mesothelioma]; In re
`New York City Asbestos Litig. [Batista], 2010 WL 9583637 [Sup Ct, New York County 2010] [declining to consolidate
`mesothelioma and lung cancer actions as pathology of two diseases may be substantively different and will require distinct
`testimony] ). There is also no indication that either of them smoked cigarettes.
`
`Miceli and Ward were exposed during the same time period, the 19503 to the 19803, and both worked at powerhouses.
`Given these similarities, any state of the art evidence they offer will overlap. (See eg In re New York City Asbestos
`Litigation [Capozio], 22 Misc 3d 1109[A], 2009 NY Slip Op 50072[U] [Sup C t. New York County 2009] [almost all
`plaintiffs performed similar tasks in construction trades which exposed them to asbestos during overlapping periods
`between 19403 and 19903; state of art and other expert testimony also would be substantially common] ).
`
`Of the 10 asbestos—containing items to which they were allegedly exposed, they have six in common, and are the only
`two plaintiffs in this group that were exposed to pipe—covering. And, of the three remaining defendants in Ward's action,
`two of the three are also defendants in Miceli's action.
`
`5. Carey, Falkenmeyer, and Frick
`
`These three plaintiffs were