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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`------------------------------------------------------------------X
`
`IN RE NEW YORK CITY ASBESTOS
`LITIGATION
`
`LENORE A. LOHMAN, a/k/a LENORE
`ASCIANE-LOHMAN, as executrix of the
`Estate of VINCENT ASCIONE, JR.,
`deceased, et al.
`
`
`NYCAL
`
`Index No.: 190293/2016, et al.
`
`Hon. Martin Shulman
`
`Belluck & Fox April 2017 in extremis trial
`group
`
`DEFENDANTS’ AFFIRMATION IN
`
`OPPOSITION TO PLAINTIFFS MOTION FOR
`Defendants.
`JOINT-TRIAL
`------------------------------------------------------------------X
`
`
`Plaintiffs,
`
`v.
`
`ALCOA INC., individually and as successor
`in interest to Tilo Roofing Co., et al.,
`
`GRAHAM M. GERING, an attorney duly admitted to practice before the Courts of the
`
`State of New York, under penalties of perjury, affirms the following pursuant to C.P.L.R. §
`
`2106:
`
`1.
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`I am an associate at the firm Barry McTiernan & Moore LLC, attorneys for
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`Defendants and, as such, am fully familiar with the facts and circumstances of these cases.
`
`2.
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`Barry McTiernan & Moore LLC (hereinafter “BMM”) respectfully submits this
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`affirmation in opposition to plaintiffs’ Order to Show Cause for Joint Trial Trials, which was filed
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`in the above-captioned matter on or before August 16, 2017, on behalf of all defendants in the
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`following cases.
`
`
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`RICHARD HUNDERTMARK Index No.: 190223/2016
`
`PETER LEPORE
`
`Index No.: 190263/2016
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`VESTON LORDE
`
`Index No.: 190300/2016
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`SHELDON SCHENKMAN
`
`Index No.: 190021/2016
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`VINCENT ASCIONE, JR.
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`Index No.: 190293/2016
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`MARCO LEONE
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`Index No.: 190324/2016
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`3.
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`Plaintiffs seek to join the above cases into the following two groups:
`
`Group 1:
`
`Group 2:
`
`1. HUNDERTMARK
`2. LEPORE
`3. LORDE
`4. SCHENKMAN
`
`1. ASCIONE
`2. LEONE
`
`
`ARGUMENT
`
`JOINT TRIALS FAIL TO DELIVER ON THE STATE PURPOSE OF JUDICIAL
`ECONOMY
`
`4.
`
`The objective of a joint trial is to promote judicial economy by saving the time,
`
`I.
`
`
`
`trouble and expense to the parties, the court, and the jurors. But the promise of expediting and
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`economizing the costs of litigation through joint trials or consolidation of numerous claims has
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`been proven by experience to be false. Recent joint trials of consolidated and individual asbestos
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`matters establish that joint trials do not promote judicial efficiency.
`
`5.
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`There are countless examples of consolidated trial groups that include weeks-long
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`jury selections, that are begun with over a dozen defendants, and that involve asking jurors to sit
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`for months on end. Every Court has dealt with long and drawn out trials, many of which end up in
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`absurdly high verdicts that judges then, almost universally, must spend their time on post-trial
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`motion practice and lengthy remittitur.
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`6.
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`When courts consolidate multiple cases for trial one of the first issues encountered
`
`is the potential length of the consolidated trial. The adverse effect on the potential jury pool that
`
`occurs when those potential jurors are advised that a trial may take up to three (3) months (as they
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`were told in Assenzio and Bryant), or eight (8) weeks (as they were told in Dummitt), versus one
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`(1) to two (2) weeks (as they were told in Curry, Dietz, Zaug and Benton), is clear, obvious and
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`devastating. Common sense, and firsthand experience, has proven that when a pool of potential
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`jurors is advised that a trial may take up to three months (as opposed to two weeks) there is a
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`thinning of that pool that is stark. A potential juror with a high degree of responsibility at work is
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`lost. A potential juror attending college or graduate school is lost. Even an unemployed juror will
`
`be lost due to their inability to conduct a job search.
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`7.
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`Even if a consolidated trial group ends up, through settlements or other resolution,
`
`with just a single plaintiff, the damage has already been done. The moment the first jury pool is
`
`advised that a trial might take eight/ten/fourteen weeks that pool is tainted and the hope of a fair
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`cross section of jurors is lost. A juror lost on day one of a two week selection process, because she
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`could not sit for three months, is lost for good. There is no bringing her back once the case is
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`whittled down to just one plaintiff.
`
`Case
`
`Cooney
`
`Zammit
`
`Gondar
`
`Geritano
`
`Bartolone
`
`Robusto
`
`Miller
`
`Hillyer
`
`North
`
`Hackshaw/Sweberg
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`Juni
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`Carlucci
`
`Figure 1
`
`
`# Cases Tried Jointly Length Of Trial
`
`Result
`
`Three (3)
`
`One (1)
`
`Two (2)
`
`Three (3)
`
`One (1)
`
`One (1)
`
`One (1)
`
`Two (2)
`
`One (1)
`
`Four (4)
`
`Three (3)
`
`Three (3)
`
`Seven (7) Weeks
`
`$12 Million
`
`Four (4) Weeks
`
`Defense Verdict
`
`Eight (8) Weeks
`
`$22 Million
`
`Seven (7) Weeks
`
`$6.2 Million
`
`Five (5) Weeks
`
`Defense Verdict
`
`Five (5) Weeks
`
`$7 Million
`
`Three (3) Weeks
`
`$25 Million
`
`Four (4) Weeks
`
`$20 Million
`
`Three (3) Weeks
`
`$7 Million
`
`Seven (7) Weeks
`
`$25 Million Total
`
`Eleven (11) Weeks
`
`$11 Million
`
`Eight (8) Weeks
`
`$7.3 Million
`
`Brown/McCloskey/Terry Three (3)
`
`Eighteen (18) Weeks $12.5 Million Total
`
`Derogatis
`
`Thibodeau
`
`Assenzio, et al.
`
`Vega
`
`Peraica
`
`McCormick
`
`One (1)
`
`One (1)
`
`Five (5)
`
`One (1)
`
`Nine (9)
`
`One (1)
`
`Three (3) Weeks
`
`Defense Verdict
`
`Five (5) Weeks
`
`Defense Verdict
`
`Eleven (11) Weeks
`
`$190 Million Total
`
`Two (2) Weeks
`
`Defense Verdict
`
`Thirteen (13) Weeks $35 Million
`
`One (1) Week
`
`$3.8 Million
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`Case
`
`# Cases Tried Jointly Length Of Trial
`
`Result
`
`Dummitt/Konstantin
`
`Seven (7)
`
`Eight (8) Weeks
`
`$51 Million Total
`
`Paolini/Michalski
`
`Zaug
`
`Dietz
`
`McCarthy/Koczur
`
`Curry
`
`Benton
`
`8.
`
`Six (6)
`
`One (1)
`
`One (1)
`
`Six (6)
`
`One (1)
`
`One (1)
`
`Five (5) Weeks
`
`Defense Verdict
`
`Two (2) Weeks
`
`Defense Verdict
`
`Two (2) Weeks
`
`Defense Verdict
`
`Five (5) Weeks
`
`$22.1 Million Total
`
`One (1) Week
`
`Defense Verdict
`
`One (1) Week
`
`$2.5 Million
`
`As set forth in Fig. 1, above, there have been twenty-six (26) asbestos verdicts1 in
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`New York City from 2011 to 2016. Of those 26 verdicts, thirteen (13) have taken place in single
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`plaintiff cases (as opposed to a consolidated trial) and in those thirteen single plaintiff trials, eight
`
`(8) (shaded in Figure 1) have resulted in defense verdicts. Only one of thirteen consolidated trials
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`ended in a total defense verdict.
`
`9.
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`In the five single plaintiff cases that did not result in defense verdicts, all but one
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`had total awards of $7 million dollars or less, with two of those being under $4 million dollars,
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`with set-offs reducing the amounts even further. Contrast that with the seven week
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`Hackshaw/Sweberg trial with verdicts totaling $25 million; the eight-week Dummitt/Konstantin
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`trial with verdicts totaling $51 million dollars; the Assenzio, et al., trial group with verdicts totaling
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`$190 million dollars; the eight week Gondar trial with a $22 million dollar verdict; or even the
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`Brown trial group which resulted in “only” $12.5 million in total verdicts. Since 2011, there have
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`been more than $450 million dollars awarded by juries in New York City asbestos trials.
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`10. While Plaintiff’s counsel, and the courts, often cite to “efficiency” as the main
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`driving force in consolidation of asbestos cases, it has become clear that “efficiency” is hardly
`
`what the NYCAL currently has. What has happened, time and again in consolidated cases, is a
`
`
`1 In the case of a consolidated group of cases, a single verdict is being counted. For example, the Dummitt case had
`a $32 Million dollar verdict and the Konstantin case had a $19 Million dollar verdict, for a total of $51 Million. But
`it was a single jury that came to both verdicts.
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`drawn out jury trial, ending in an unsustainably large verdict, followed by a drawn out process
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`whereby the judges determine what they believe to be a fair verdict. It is hard to see how either
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`party’s due process rights are being protected in this scenario. With large, unsustainable verdicts
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`being the norm in consolidated trials and with nearly all of them needing to be remitted
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`substantially, the disconnect between the jury’s findings and what is deemed “reasonable” by the
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`courts calls into question other aspects of the jury’s findings. The opportunity for prejudice is
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`clear and undeniable.
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`11.
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`In light of the above, it is clear that for the NYCAL to protect the rights of ALL of
`
`its litigants, a wholesale review of the process under which these cases are handled must take place.
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`The data is clear and cannot be ignored or brushed aside. NYCAL must evolve and follow the lead
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`of quite literally all of the largest asbestos dockets and re-examine consolidation in asbestos trials.
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`JOINT TRIALS ARE INHERENTLY AND INEVITABLY PREJUDICIAL
`
`II.
`
`
`12.
`
`The Fourteenth Amendment to the United States Constitution mandates that no
`
`person be deprived “of life, liberty, or property, without due process of law.” U.S. CONST. amend.
`
`XIV, § 1. The right to a fair trial is a fundamental liberty secured by the due process clause. Indeed,
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`“so basic to our jurisprudence is the right to a fair trial that it has been called ‘the most fundamental
`
`of all freedoms.’” Bailey v. Sys. Innovation, Inc., 852 F.2d 93, 98 (3d Cir. 1988) (citing Estes v.
`
`Texas, 381 U.S. 352, 540, 85 S.Ct. 1628, 1632, 14 L.ed.2d 543 (1965)). Article I, Section 6 of the
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`New York State Constitution mirrors the Fourteenth Amendment’s guarantee that a person shall
`
`not be deprived of life, liberty, or property without due process of law, which invariably includes
`
`the right to a fair trial. 12-16 Arden Assoc. v. Vasquez, 168 Misc. 2d 475, 638 N.Y.S.2d 535 (N.Y.
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`Civ. Ct. N.Y. County 1995) (stating that “it is black letter law that a litigant in a civil action or
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`proceeding is entitled to a fair trial”).
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`13.
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`Any claimed benefit of efficiency or expediency of a joint trial must yield to this
`
`essential right to a fair trial. See Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990).
`
`As the Second Circuit wrote: “[t]he systematic urge to aggregate litigation must not be allowed to
`
`trump our dedication to individual justice, and we must take care that each individual plaintiff’s –
`
`and defendant’s – cause not be lost in the shadow of a towering mass litigation.” In re Joint E. &
`
`S. Dist. Asbestos Litig., 971 F.2d 831, 853 (2d Cir. 1992); see also Johnson v. Celotex, 899 F.2d
`
`at 1284-85 (stating that “[c]onsiderations of convenience and economy must yield to a paramount
`
`concern for a fair and impartial trial”).
`
`14.
`
`In Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993), the Second
`
`Circuit addressed the important balancing act that courts must undertake in asbestos cases to
`
`safeguard a defendant’s right to a fair trial when considering consolidating cases for trial. While
`
`observing that consolidation serves an important role in promoting judicial economy, the court
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`emphasized that ultimately “[t]he benefits of efficiency can never be purchased at the costs of
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`fairness.” Id. at 350.
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`15.
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`Lumping together unrelated claims for trial will inevitably result in prejudice that
`
`would deprive defendants of their fundamental and Constitutional right to a fair and impartial trial.
`
`See Bender v. Underwood, 93 A.D.2d 747, 461 N.Y.S.2d 301 (1st Dep’t 1983) (holding that,
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`“under the circumstances of this case, the resulting and cumulative prejudice to appellant by
`
`permitting the jury, in one trial, to determine the multiple claims… at issue here, far outweighs the
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`benefit derived from the conduct of a joint trial.”); Doll v. Castiglione, 86 A.D.2d 711, 446
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`N.Y.S.2d 537 (3d Dep’t 1982) (denying consolidation, reasoning that “[t]he possibility of
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`confusion for the jury and prejudice…resulting from a joint trial of these actions is obvious.”);
`
`accord Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009); U.S. Const. amend. XIV §
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`1; N.Y. Const. art. 1 §6; Habenicht v. R.K.O. Theatres, Inc., 23 A.D.2d 378, 260 N.Y.S.2d 890
`
`(1st Dep’t 1965).
`
`16.
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`As explained below, prejudice is inevitable given the confusion reasonable jurors
`
`will experience when they encounter the mountain of evidence the different matters will present
`
`during a months-long trial involving unfamiliar factual, medical, and expert testimony;
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`unavoidable bolstering through the presentation of irrelevant evidence; and defendants’ lack of
`
`opportunity to cross-examine witnesses in joined but unrelated matters that will likely amplify
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`prejudice against them.
`
`A.
`
`Joint trials deprive each defendant of due process and the right to trial
`by jury
`
`
`
`17.
`
`As examined below, a joint-trial here would effectively deprive each defendant of
`
`a meaningful opportunity to present to a jury the unique facts and questions relating to the case in
`
`which it is a defendant. Each defendant’s right to a jury trial cannot be denied simply in the name
`
`of efficiency in disposing of cases. See Kaminsky v. Kahn, 20 N.Y.2d 573, 583, 285 N.Y.S.2d
`
`833, 839 (1967) (stating that “expediency alone does not warrant the denial of this fundamental
`
`right”); Mars Assoc., Inc. v. N.Y. City Educ. Const. Fund, 126 A.D.2d 178, 193 (1st Dep’t 1987)
`
`(recognizing that while there “are certain benefits to be gained by joint trials, those benefits are
`
`outweighed when a party would be unduly prejudiced by a joint trial.”).8
`
`18.
`
`In a joint trial, despite the fact that the evidence will all be heard by the same jury
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`and could affect the jury’s consideration of the case against each defendant, it is possible that a
`
`defendant may be barred from cross-examining witnesses who technically are called in a case
`
`against a different defendant. This is the case in joint and consolidated trials even though “[c]ross-
`
`examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact.”
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`Friedel v. Bd. of Regents of Univ. of N.Y., 296 N.Y. 347, 352 (1947) (citing Alford v. U.S., 282
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`U.S. 687, 691 (1931)); see also Graves v. Am. Express, 175 Misc.2d 285, 286, 669 N.Y.S.2d 463,
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`463 (2d Dep’t 1997) (noting that cross-examination is the principal means by which the credibility
`
`of a witness and the truth of testimony are tested).
`
`19.
`
`Here, Plaintiffs rest their hope on the Court’s desire for expediency and economic
`
`efficiency. “Considerations of convenience and economy[, however,] must yield to a paramount
`
`concern for a fair and impartial trial.” In re Repetitive Stress Injury Litigation, 11 F.3d 368 (2d
`
`Cir. 1993) (citing Johnson v. Celotex Corp., 899 F.2d at 1285. Indeed, the Second Circuit has
`
`explained “we are mindful of the dangers of a streamlined trial process in which testimony must
`
`be curtailed and jurors must assimilate vast amounts of information. 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 plaintiff’s - and defendant’s - cause not be lost in the shadow of a
`
`towering mass litigation.” In re: Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 853 (2d Cir.
`
`1992) (emphasis added).
`
`
`
` B.
`
`Joint trials cause jury confusion
`
`20.
`
`Plaintiffs’ request threatens Defendants’ right to a fair trial, by creating juror
`
`confusion, allowing evidence to be improperly bolstered and restricting Defendants’ right to cross-
`
`examine adverse witnesses. As a result, Plaintiffs’ request violates Defendants’ Due Process
`
`Rights and must be denied.
`
`21.
`
`One of the most basic fairness concerns is the potential for jury confusion when
`
`separate actions are tried as a consolidated or joint trial. See, e.g., Brown v. Brooklyn Union Gas
`
`Co., 137 A.D.2d 479, 480, 524 N.Y.S.2d 228, 229 (2d Dep’t 1988) (stating that “actions involving
`
`many dissimilar issues… may confuse the jury”); Bender, 93 A.D.2d 747 (noting the possibility
`
`of jury confusion relevant to reversal of consolidation order); In re Eighth Judicial Dist. Asbestos
`
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`Litig. (Angie; McKee), Nos. H-94286, H-93441, slip op. at 3-4 (Sup. Ct. Erie County, Sept. 15,
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`1989) (holding that the court not persuaded the jury would be able to sufficiently distinguish the
`
`cases). The risk of jury confusion is inversely proportional to the number of common questions
`
`presented by the consolidated actions or joint trial.
`
`22.
`
`In Malcolm, the Second Circuit remanded forty-eight separate cases that were
`
`consolidated for a new trial due to juror confusion. The Court explained that during the liability
`
`portion of the trial, “the jury was presented with a dizzying amount of evidence regarding each
`
`victim’s work history.” 995 F.2d at 349. Despite the precautionary measures taken by the trial
`
`court in its attempt to assure each case maintained its own identity, “the sheer breadth of the
`
`evidence made these precautions feckless in preventing jury confusion.” Id. at 352.
`
`23.
`
`Quite simply, juror confusion violates Defendants’ right to a fair trial (see Cain v.
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`Armstrong World Industries, 785 F. Supp. 1448 (S.D. Ala. 1992) (thirteen consolidated actions
`
`remanded for a new trial in each case due to juror confusion during the trial which lead to an unfair
`
`trial)), and therefore, Defendants’ right to due process of law under the Fourteenth Amendment.
`
`The burden rests with the party moving for joint trial to convince a court that a joint trial would
`
`not result in any confusion. Dashnaw v. Usen, 2006 WL 1742174, at *2 (N.D.N.Y. 2006).
`
`24.
`
`As explained below, the content of the testimony and evidence in each case is
`
`unique to the respective cases such that a joint trial will result in juror confusion and substantial
`
`prejudice to the defendants. The jurors would need to evaluate evidence regarding separate medical
`
`and work histories with almost no commonality between the claims: there is little commonality
`
`between the types of exposure sites; there is no overlap of actual worksite locations or employers;
`
`there is little commonality between plaintiffs’ occupations; and there is little commonality among
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`the products at issue in each case. Further, the laws of different jurisdictions may apply to different
`
`cases.
`
`C.
`
`Joint trials impermissibly bolster the individual claims
`
`25.
`
`Plaintiffs’ proposed joint trial also violates Defendants’ due process rights to a fair
`
`trial because the presentation of testimony from the separate plaintiffs and their witnesses would
`
`improperly bolster each individual Plaintiff’s claims. Where the consolidation and presentation of
`
`different cases to the same jury at the same time “tends to bolster each claim, to defendants’
`
`disadvantage,” it constitutes prejudice to a substantial right. Alter v. Oppenheimer & Co. Inc., 8
`
`Misc. 3d 1008(A), 2005 WL 1539251, at *4 (Sup. Ct. N.Y. County 2005), citing Bradford v.
`
`Coleman Catholic High School, 110 A.D.2d 965, 966, 488 N.Y.S.2d 105, 106 (3d Dept. 1985).
`
`Namely, it “prejudice[s] the defendants[’] right to a fair trial.” Id., at * 5 (citing Bradford, 110
`
`A.D.2d 965, 966, 488 N.Y.S.2d 105, 106) (emphasis added).
`
`26.
`
`As an example of the prejudice that can befall defendants in a joint trial, the trial
`
`court judge in Cain had to reverse the jury’s verdict because it found that as a consequence of
`
`joining thirteen cases for trial, despite jury instructions to consider each case separately, the jury
`
`had improperly inflated the damages awards for several of the plaintiffs. 785 F. Supp. at 1454.
`
`Specifically, the Cain jury awarded the same amount of damages in the non-cancer personal injury
`
`cases as it did in the cancer personal injury cases. Id. at 1455. The court noted that the verdict was
`
`not supported by the evidence introduced at trial with respect to each individual plaintiff,
`
`concluding that the “jury simply lumped the personal injury plaintiffs into two categories and gave
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`plaintiffs in each category the same amount of compensatory damages no matter what their
`
`injuries.” Id.
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`27.
`
`The court in Cain further explained that “new trials [were] warranted in each of the
`
`personal injury actions because the compensatory damages awarded in each case were so excessive
`
`as to indicate passion and prejudice on the part of the jury.” Id. at 1451. Namely, the jury had
`
`awarded future medical expenses to each living plaintiff, although only three of the ten living
`
`plaintiffs proved such amounts. Id. The court went on to explain: “[T]he compensatory damages
`
`in most cases were not only greatly disproportionate to the injury in each of the personal injury
`
`cases but also unsupported by the evidence in many cases.” Id. at 1454.
`
`28.
`
`In NYCAL, a comparison of verdicts in joint trials and single plaintiff trials
`
`demonstrates the prejudice and bolstering effects of joint trials. From 2011 to 2016, the average
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`Plaintiff’s jury verdict in a single plaintiff case is $9.1 Million. With more than half (8 of 13) of
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`single plaintiff verdicts ending in defense verdicts. The average consolidated trial verdict, for the
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`group, is $36.6 Million. Broken down further to take into account the average verdict per plaintiff
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`in a consolidated group, it is $20.1 Million. With only one of twelve such trials ending in a defense
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`verdict. So, to sum up, a plaintiff that has his case tried on its own, when he is victorious, receives
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`on average $9.1 Million dollars, though it is more likely than not that the trial will result in a
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`defense verdict. If that same plaintiff is lucky enough to have his case tried in a group, he can
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`expect, on average, a verdict more than double the size, coming in at $20.1 Million. Again, while
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`a one-plaintiff trial does not guarantee a defense verdict, nor should it, a consolidated trial all but
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`ensures an enormous, generally unsustainable, plaintiffs verdict.
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`D.
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`Precautionary measures do not avert confusion and prejudice.
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`29.
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`Joint trials result in jury confusion and, consequently, prejudice to defendants that
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`no precautionary measures can prevent. Jurors ordinarily are presumed to follow unambiguous
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`instructions issued by the court. United States v. Gilliam, 994 F.2d 97, 100 (2d Cir. 1993).
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`However, “[t]he presumption that a jury will adhere to a limiting instruction evaporates where
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`there is an overwhelming probability that the jury will be unable to follow the court’s instructions
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`and the evidence is devastating to the defense.” United States v. Jones, 16 F.3d 487, 493 (2d Cir.
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`1994) (citing Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)).
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`30.
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`In Malcolm, supra, the Second Circuit remanded forty-eight separate cases that
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`were consolidated for a new trial as a result of juror confusion. The Court explained that during
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`the liability portion of the trial “the jury was presented with a dizzying amount of evidence
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`regarding each victim’s work history.” 995 F.2d at 349. Despite the precautionary measures taken
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`by the court in its attempt to assure each case maintained its own identity, “the sheer breadth of
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`the evidence made these precautions feckless in preventing jury confusion.” Id. at 352.
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`31.
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`Similarly, in Cain, supra, thirteen separate cases were consolidated for trial over
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`defendants’ objection. At the close of trial, the Court remanded the consolidated action for a new
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`trial in each case. The Court stated it was “evident (unfortunately in hindsight) that despite all the
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`precautionary measures taken by the Court (e.g., juror notebooks, cautionary instructions before,
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`during and after the presentation of evidence, and special interrogatory forms) the joint trial of
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`such a large number of differing cases both confused and prejudiced the jury.” 785 F.Supp. at
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`1455. The Court concluded that the process used “left to the jury the impossible task of being able
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`to carefully sort out and distinguish the facts and law of thirteen plaintiffs’ cases that varied greatly
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`in so much critical aspects.” Id. at 1457.
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`III.
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`
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`JOINT TRIAL IS NOT PROPER BECAUSE THE CASES LACK SUFFICIENT
`COMMONALITIES TO OVERCOME THE INHERENT INEFFCIENCY AND
`PREJUDICE OF JOINT TRIAL.
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`32.
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`A joint trial is not proper where “the actions involve many dissimilar issues which
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`may confuse the jury.” Brown v. Brooklyn Union Gas Co., 137 A.D.2d 479, 480 (2d Dep’t 1988);
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`see also Simoni v. Costigan, 100 A.D.3d 531 (1st Dep’t 2012) (stating that “Although the personal
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`injury actions and the legal malpractice action involve ‘a common question of law or fact’
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`consolidation could engender jury confusion and prejudice the defendants in the malpractice
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`action.”).
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`33.
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`In deciding whether different asbestos cases have sufficient commonalities to
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`overcome the inherent risk of prejudice and jury confusion in joint trials, a court must consider the
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`following factors, as outlined in Malcolm: (a) common worksite; (b) similar occupation; (c) similar
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`time of exposure; (d) type of disease; (e) whether plaintiffs are living or deceased; (f) status of
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`discovery in each case; (g) whether all plaintiffs are represented by the same counsel; and (h) type
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`of cancer alleged. 995 F.2d 346. In applying the Malcolm evaluation, a New York court
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`supplemented additional factors that must be considered: (i) whether the defendants are the same
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`and represented by the same counsel; and (j) whether the type and manner of the alleged exposure
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`are similar. Ballard v. Armstrong World Indus., 191 Misc.2d 625, 744 N.Y.S.2d 304 (Sup. Ct.
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`Monroe County 2002); see also Ambruso v. A.O. Smith Water Prods. Co. (In re NYCAL), No.
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`116087/2005 (Sup. Ct. New York County, May 1, 2013) (Jaffe, J.) (attached hereto as Exhibit D)
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`(considering, in addition to the eight Malcolm factors, an additional factor that compares the
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`number of defendants in each case).
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`34.
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`The cases do not share common occupations, worksites, manner of exposure,
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`products, defendants, time of exposure, and whether plaintiffs are living or deceased. There are
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`numerous worksites, occupations, products and medical histories at issue in these cases. In any
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`joint trial, the jury would hear testimony on, and thus be required to keep track of, every single
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`work location where each plaintiff alleges asbestos exposure to different products. Were any of
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`these cases joined for trial, a single jury would need to hear and keep track of, among other things:
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`i. which plaintiff alleges exposure at each site,
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`ii. when a given plaintiff was at a given site,
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`iii.
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`for what period of time the plaintiff was at the site, where, often at huge
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`industrial complexes, a plaintiff worked at the site,
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`iv.
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`v.
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`vi.
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`the different ways in which plaintiff alleges exposure to asbestos at the site,
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`the different types of products or materials to which plaintiff was exposed,
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`the brand, trade or manufacturer name of those products or materials,
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`vii.
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`the asbestos content of each product, and
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`viii.
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`the chemical properties of each asbestos product. (e.g., wet, dry, bound in
`resin, etc.)
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`The jury, therefore, will need to consider a staggering number of sites where
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`35.
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`plaintiffs allege exposure to asbestos. Each of the plaintiffs involved in this motion have provided
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`testimony on their own behalf or produced witnesses that testified as to the underlying claimed
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`exposures. Each of these cases involves multiple work sites, multiple employers, multiple
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`products, multiple land owners, even multiple countries. The jury will need to keep separate each
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`site when considering expert testimony. It is simply unrealistic, however, to expect that a jury will
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`be able to keep track of who was exposed at which sites, and exactly when, for what duration, in
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`what manner, and to which products.
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`36. Moreover, because of the numerous differences in the cases and the many different
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`defendants in each, the individual defendant’s defenses will be lost in the confusion of a joint trial.
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`In Malcolm, the Second Circuit reversed, in part because one defendant had different defenses to
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`liability and a joint trial would be highly prejudicial:
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`At trial, Keene did not dispute that [plaintiff] Lewis was exposed to a wide
`array of asbestos-containing products; rather, Keene disputed exposure to
`its products…. We are concerned that the jury’s ability to focus on this
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`distinction may have been compromised in this case…. [T]he evidence
`regarding Lewis’ exposure to Keene’s products was vague, minimal, and
`heavily circumstantial compared to the extensive evidence regarding the
`products of defendant Owens-Coming Fiberglass.
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`995 F.2d at 352.
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`The same concern applies here, where the jury will have great difficulty sorting out
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`37.
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`the evidence — including the evidence offered to establish the plaintiffs’ alleged exposures to each
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`of the defendants’ asbestos-containing products — if the cases are tried together.
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`A.
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`38.
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`The Cases in Proposed Group 1 Lack Sufficient Commonality Under
`the Malcolm Factor Analysis
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`Below are the widely varying circumstances of each of the cases Plaintiffs propose
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`as Group 1, illustrating that the proposed group would be a motley one. These four unique cases
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`are summarized in the Proposed Group 1 Fact Chart, attached as Exhibit A.
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`(1)
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`Richard Hundertmark
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`39.
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`Richard Hundertmark (“Mr. Hundertmark”) passed away May 31, 2017 at age 73.
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`Mr. Hundertmark was diagnosed with mesothelioma during or around July of 2016. He has claims
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`remaining against approximately 69 defendants, as per the Preliminary Remaining Defendant List
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`submitted by Plaintiffs.
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`40. Mr. Hundertmark claimed that he was exposed to asbestos from taking technical
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`courses as a student at Aviation High School from 1958 to 1961. See Transcript of the Deposition
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`of Richard Hundertmark at 40-43 (attached herewith as Exhibit B.)2
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`41. Mr. Hundertmark claimed exposure to various asbestos-containing products from
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`his career working for and later operating a small HVAC service and repair business. Id. at 85-
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`2 Specifically, Mr. Hundertmark claimed asbestos exposure from cutting armored hoses, replacing exhaust gaskets
`on engines, exposure to exhaust fumes and from disassembling aircraft accessories including bank indicators, fuel
`gauges, temperatures gauges and bomb sights. Id. at 43-53.
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