throbber
FILED: NEW YORK eoUNTY CLERK 0572619503750176P7755"
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 145
`NYSCEF DOC. NO. 145
`
`INDEX NO- 19‘0147/2015:
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`EXHIBIT E
`
`

`

`ILED: NEW YORK COUNTY CLERK” 05721017 03:16 p
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 145
`NYSCEF DOC. NO. 145
`
`INDEX No.
`lama/261’s”:
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`New York City Asbestos Litigation, 2015 WL 4501189 (2015)
`
`2015 WL 4501189 (N.Y.Sup.), 2015 NY. Slip Op. 31358(U) (Trial Order)
`Supreme Court, New York.
`New York County
`
`In Re: NEW YORK CITY ASBESTOS LITIGATION.
`
`Miehail Andreadis, Plaintiff,
`V.
`
`ABB, Inc., et a1., Defendants.
`
`No. 190411/13.
`July 24, 2015.
`
`Decision and Order
`
`For plaintiff: Derell D. Wilson, Esq., The Early Law Firm, 360 Lexington Ave, 20th fl., New York, NY 10017,
`212-986-2233.
`
`For William Powell Co.: Matthew H. Mueller, Esq, Clemente Mueller, P.A., 5 Penn Plaza, 23rd fl, New York, NY
`10001, 212-425—5005.
`
`For Mario & DiBono: Austin D. O'Malley, Esq., Cullen and Dykman LLP, 44 Wall St., New York, NY 100005-2407,
`212-732-2000.
`
`For joint defendants: Stephen Novakidis, Esq., Malaby & Bradley, LLC, 150 Broadway, 6th f1, New York, NY 10038,
`212—791-0285.
`
`For Milwaukee/Oakfabco: Mark K. Hsu, Esq., Joanna Drozd, Hawkins Parnell et al., 600 Lexington Ave., 8th f1., New
`York, NY 10022, 212-897-9655.
`
`For Fairbanks: Lee D. Schneider, Esq, McGivney & Kluger, RC, 80 Broad St., 23rd fl., New York, NY 10004,
`212—509—3456.
`
`For Goulds: Austin D. O‘Malley, Esq., Cullen and Dykman LLP, 44 Wall St., New York, NY 100005-2407,
`212—732-2000.
`
`For Andal: Samantha J. Geoghan, Esq., Wilson, Elser, et al., 150 E. 42nd St., New York, NY 10017, 212—915-5542.
`
`Barbara Jaffe, J.
`
`*1 By order to show cause, plaintiffs move pursuant to CPLR 602 for an order consolidating the following “in extremis”
`cases for a joint trial: (1) Michail Andreadis, Index No. 190411/13; (2) Joseph Barry Best, Index No. 190109/14; (3)
`David William Fahy, Index No. 190259/13; (4) Donald Nefsey, Index No. 190051/ 14; (5) Donald Rocovich, Index No.
`190042/14; and (6) William Weil, Index No. 1900434/11. Plaintiff seeks to try the cases in four groups as follows: Group
`one — Andreadis; Group two - Fahy; Group three - Best and Nefsey; and Group four - Rocovich and Weil.
`
`Defendants jointly oppose; opposing in the Nefsey matter are defendants The William Powell Company (Powell),
`Milwaukee Valve Company, Inc., Oakfabco, Goulds Pumps, Inc., and The Fairbanks Company (Fairbanks); opposing
`in the Rocovich matter are defendants Oakfabco and Goulds; opposing in the Best matter is defendant Goulds; and
`opposing in the Weil matter are defendants Andal, Goulds, and Mario & DiBono,
`
`
`
`<3?) at“): f
`
`'l {transom Renters. Ne iizleaim to original 1,1,8. {Sm/ernrnent Works,
`
`1
`
`

`

`
`
`——1FILESEHHNE6¢“WYOREEOUNTYCLERK 0 Lay—M703:16 P
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 145
`NYSCEF DOC. NO. 145
`
`7
`
`IVNDEVX'N59751W
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`New York City Asbestos Litigation, 2015 WL 4501189 (2015)
`
`
`
`I. APPLICABLE LA W
`
`Pursuant to CPLR 602(3), a motion for a joint trial rests in the discretion of the trial court. (See Matter of New York City
`Asbestos Litigation [Dammit], 121 AD3d 230 [lst Dept 2014]; JP Foods‘ervic'e Distrib, Inc. v Price]water/museCoopers
`LLP, 291 AD2d 323 [lst Dept 2002]; Rodgers v Worry/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/11p Corp. ofMom'ovia, 26 NY2d 157 [1970]; Geneva Ten'zps, Inc. v New World
`
`Communizim. Inc, 24 AD3d 332 [lst 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 Litigation [Bernard], 99 AD3d 410 [1 st Dept
`2012]), and allegations of prejudice must be specific and non-conclusory (Dummiti, 121 AD3d at 245). However, a joint
`trial should not be granted if individual issues predominate over common ones. (Id. ).
`
`In determining whether to consolidate the individual plaintiffs' cases for a joint trial where exposure to asbestos is alleged,
`courts consider the factors set forth in Malcolm v NI]. Gypsum Ca, 995 F‘2d 346 (2d Cir 1993), which follow, in pertinent
`part:
`
`(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
`
`*2 (6) number of defendants named in each case.
`
`(Malta/m, 995 FZd 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. (Dummirt, 121 AD3cl at 245).
`
`II. PLAINTIFFS' INFORMA TION
`
`As there is no opposition to proposed groups one and two (Andreadis and Fahy), I address only groups three (Best and
`Nefsey) and four (Rocovich and Weil).
`
`A. John Barry Best
`
`
`
` ‘I 1}"
`
`thornsozi Reuters}, No dawn to eligiz'iai US, CEovet‘nrmot Works,
`
`2
`
`

`

`W F LED: NEW YO COUNTY CLERK 052617576737:16 P 1
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 145
`NYSCEF DOC. NO. 145
`
`INDEX Nb- 190147/2015
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`New York City Asbestos Litigation, 2015 WL 4501189 (2015)
`
`Best recently passed away at the age of 68 from mesothelioma. From 1966 to 1970, he served as a shopkeeper for the
`United States Navy, and was allegedly exposed to asbestos while taking damaged returned parts, such as asbestos-
`containing gaskets and packing, to the shop from ship engineers while they were doing repair work. He also assisted
`with, and worked near others performing, work on boilers, engine, pumps, valves, steam traps, and turbines, and general
`cleanup. After he left the Navy, Best performed brake jobs on vehicles using asbestos-containing brakes. (NYSCEF 95).
`
`Defendants remaining in his action are Carrier Corporation, Goulds, ITT Corporation, and Warren Pumps, LLC.
`
`B. Donald Nefsey
`
`Nefsey is 81 years old and suffers from mesothelioma. From 1951 to 1955, he served in the Navy as a fireman aboard
`the USS Charles P. Cecil, DDR 835, and was allegedly exposed to asbestos from asbestos-containing pumps, steam
`traps, and valves. From 1946 to 1979, Nefsey also worked as a fireman, laborer, and pipefitter, during which time he
`was exposed to asbestos contained in and used with boilers, heating coils, insulation, pumps, steam traps, and valves.
`(NYSCEF 95).
`
`Defendants remaining in his action are Armstrong International, Inc. f/k/a Armstrong Machine Works, Aurora, Bell
`& Gossett Company, Bryan Steam Corporation, Burnham Corporation, Burnham LLC, Crown Boiler Co., FMC
`Corporation on behalf of Peerless Pumps, Fort Kent Holdings, Inc. f/k/a Dunharn—Bush, Inc., Goulds, Jenkins Bros.,
`
`Milwaukee Valve, Oakfabco, Perma-Pipe (a subsidiary of MFRI, Inc.), Riley Power, Inc., Sterling Fluid Systems (USA),
`LLC (formerly known as Peerless Pump Company), Taco, Inc., Fairbanks, Powell, and Warren Pumps, LLC.
`
`C. Donald Rocovich
`
`Rocovich recently passed away at the age of 84 from lung cancer. From 1949 to 1974 he worked as an insulator at various
`
`residential, commercial, and industrial sites, and was allegedly exposed to asbestos from asbestos-containing insulation,
`piping and fittings, valves, elbows, steam traps, pumps, turbines, and other related equipment. Defendants remaining in
`his action are Goulds and Oakfabco, (NYSCEF 95).
`
`D. William Weil
`
`Weil is a 76-year—old suffering from lung cancer. From 1957 to 1979, he worked as a sheet metal worker, and was
`
`allegedly exposed to asbestos from asbestos-containing joint compound, insulation, and fireproofing while working on
`construction of the World Trade Center. He also performed home renovations in the 19503 and 1960s, and was allegedly
`exposed to asbestos-containing floor tiles and joint compound. Defendants remaining in his action are Andal, Kaiser
`
`Gypsum Company, Mario & DiBono, Port Authority of New York and New Jersey, Tishman Realty & Construction
`C0,, Inc., and Tishman Realty Corporation.
`
`111. ANA L YSIS
`
`A. Judicial economy
`
`*3 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. (NYSCEF 95).
`
`Defendants assert that the more plaintiffs in a trial group, the more defendants, and the correspondingly longer process
`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
`
`
`sum {term-arc, No claim to migmal 1.1.53. Cove:simerit Works.
`
`8
`
`

`

`FILED: NEW YORK COUNTYWCLE519612117 @6167”
`INDEX NO. 190147/2015
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 145
`RECEIVED NYSCEF: 05/05/2017
`NYSCEF DOC. NO. 145
`RECEIVED NYSCEF: 05/05/2017
`
`New York City Asbestos Litigation, 2015 WL 4501189 (2015)
`
`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. (NYSCEF 102).
`
`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. (Id). 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.
`
`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
`ADch 214 [lst Dept 1993], affd 82 NY2d 821 [joint trials may potentially reduce cost of litigation, promote judicial
`
`economy, speed disposition of cases, and encourage settlements]; Matter ofNew York City AsbestosLitigation [Dammit],
`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] ), elsewhere the trend is 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 § 60-49020[j];
`GA Code Ann § 51—14—10; 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 Ce/otex Corp, 899 F2d 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 to
`Brooklyn Navy Yard Asbestos Litig, 971 F2d 831 [2d Cir 1992]; see also Malcolm, .995 F2d at 350 [“benefits of efficiency
`can never be purchased at the cost of fairness”) ). However, consolidating cases that are somewhat diverse does not
`
`“suggest the prejudice of defendant's right to a fair trial.” (In the Matter ofNew York City Asbestos Litigation [Baruch],
`111 AD3d 574 [1st Dept 2013]).
`
`*4 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 6501 559 [SD NY 2010] [differences in degree and duration
`of plaintiffs' asbestos 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 plaintiffs medical history. Thus, the length of the trial often depends on the
`plaintiffs' occupations and medical histories.
`
`Accordingly, in exercising my discretion in deciding whether to consolidate these cases, I duly consider judicial economy
`and efficiency.
`
`Powell, a defendant only in the Nefsey case, maintains that While it was also sued in the Best matter, it was granted
`summary dismissal, and it would thus be unfair to require it to participate in a trial from which it has been dismissed.
`
`B. Best and Nefsey
`
`
`\SlilGi‘S. No (fizlairrl to original 0.53.
`
`t’.§3<n\n§=,-i'ni’tit:nt V‘iorks.
`
`11
`
`

`

`FILfiB’E' NEW YORK COUNTY c ‘ERK 05217 03:16 P ‘
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 145
`NYSCEF DOC. NO. 145
`
`NEWEX NO- 190147/2015
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`New York City Asbestos Litigation, 2015 WL 4501189 (2015)
`
`i
`
`It also argues that it would be prejudicial for it to try a case with a living plaintiff and a deceased one; that plaintiffs’
`
`economic losses are dissimilar as Best died at 68 years old while he was still working and Nefsey is 81 years old and
`retired; that as both plaintiffs served in the Navy during different decades, the state of the art does not overlap; and that
`
`as Nefsey was mostly exposed to asbestos in Michigan, Michigan law may apply and confuse the jury as only New York
`law applies in Best's case. (NYSCEF 100).
`
`Milwaukee Valve and Oakfabco also oppose the consolidation of living and deceased plaintiffs, and observe that Best
`and Nefsey did not share a common occupation, worksite, or time of exposure. (NYSCEF 101). Goulds and Fairbanks
`advance the same arguments. (NYSCEF 120, 121).
`
`Consolidating cases involving living and deceased plaintiffs is not inherently prejudicial. (See In re Joint Eastern and
`
`Sour/zero Dist. Aslwszos Litig. [Schultz], 1990 WL 4772 [SD NY 1990] [coexistence of personal injury and wrongful
`death claims warrants use of cautionary instructions but is not so inherently prejudicial as to preclude consolidation]; In
`to New York City Asbestos Litigation v A. 0. Smith Water Prods. [Co/[Lira], 9 Misch 1109[A], 2005 NY Slip Op 51465
`[Sup Ct, New York County 2005]).
`
`Moreover, that a different state's law may apply to one of the plaintiff‘s cases does not require separate trials. (See In
`re New York City Asbestos Litigation [Bernard] , 99 AD3d 410 [lst Dept 2012] [as defendant had not yet asked court to
`determine whether different state‘s law applied to action, it would be premature to deny consolidation on that ground,
`and defendant did not demonstrate why alleged differences in states' laws cannot be cured with jury instructions] ).
`
`However, the only commonality between Best and Nefsey is their naval service, and the differences in their services
`predominate here. Moreover, their Navy exposure constituted only a part of their overall exposure, which also differs.
`
`Best was exposed, after 1970, to asbestos-containing brakes from work on vehicles. Nefsey was exposed from 1946 to
`1979 while working as a fireman, laborer, and pipefitter to asbestos-containing boilers, heating coils, insulation, pumps,
`steam traps, and valves.
`
`Finally, four defendants remain in the Best case, whereas 20 defendants remain in the Nefsey matter, and there are only
`two defendants in common. Thus, consolidating these cases for trial would result in 22 defendants participating in a trial
`in which they are involved in one of the plaintiffs' cases.
`
`
`
`*5 Plaintiffs have thus failed to establish that Best and Nefsey shared a common occupation, worksite, or exposure,
`or that joining these cases for trial would result in judicial economy or greater efficiency. (See Curry v Am. Standard,
`2010 WL 6501559 [SD NY 2010] [differences in degree and duration of plaintiffs' asbestos exposure would likely require
`presentation of different complex state—of—art evidence in each case, further mitigating against potential efficiency of
`consolidation] ).
`
`C. Rocovich and Weil
`
`Milwaukee Valve and Oakfabco oppose the consolidation of living and deceased plaintiffs, and observe that Rocovich
`and Weil did not share a common occupation or worksite. (NYSCEF 101). Andal, a defendant in the Weil action only,
`advances the same arguments, and observes that Weil's lung cancer has been in remission since 2011. (NYSCEF 117).
`
`Rocovich worked as an insulator from 1949 to 1974 at numerous residential, commercial, and industrial sites, while Weil's
`primary exposure came from his work as a sheet metal worker at the World Trade Center from 1957 to 1979. Weil also
`
`performed home renovation from the 19503 to the 1960s. They were exposed to only one common product, insulation.
`Two defendants remain in the Rocovich matter, while six remain in the Weil matter, and there are no defendants in
`common.
`
`
`.
`
`'% ticmsxm {steamers}. No claim to original 11.53. Govemrmant Works.
`
`5
`
`

`

`FILED:
`W YORK COUNTY CLERK 0520177 03:
`6 P
`FILED: NEW YORK COUNTY CLERK 05/05/2017 03:16 PM
`NYSCEF DOC. NO. 145
`NYSCEF DOC. NO. 145
`
`lINDEX NO- 190147l2015'
`INDEX NO. 190147/2015
`RECEIVED NYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`New York City Asbestos Litigation, 2015 WL 4501189 (2015)
`
`Absent the commonality of their occupations, worksites, or exposures, plaintiffs have not demonstrated that these two
`cases should be consolidated for trial.
`
`Accordingly, it is hereby
`
`IV. CONCL USION
`
`ORDERED, that plaintiffs' motion for an order consolidating certain cases for trial is denied in its entirety; and it is
`further
`
`ORDERED, that the parties are directed to appear for a final pretrial conference on August 19, 2015 at 2:30 pm at 80
`Centre Street, Room 279, New York, New York.
`
`DATED: July 24, 2015
`
`New York, New York
`
`ENTER:
`
`<<signature>>
`
`Barbara Jaffe, JSC
`
`
`End of Document
`1?; 2017 Thomson Reuters, No claim to original US, Government Works.
`
`
`
` No daim to originaé US. Government Works. 6
`
`

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