throbber
FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`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.
`
`I am an associate at the firm Barry McTiernan & Moore LLC, attorneys for
`
`Defendants and, as such, am fully familiar with the facts and circumstances of these cases.
`
`2.
`
`Barry McTiernan & Moore LLC (hereinafter “BMM”) respectfully submits this
`
`affirmation in opposition to plaintiffs’ Order to Show Cause for Joint Trial Trials, which was filed
`
`in the above-captioned matter on or before August 16, 2017, on behalf of all defendants in the
`
`following cases.
`
`
`
`RICHARD HUNDERTMARK Index No.: 190223/2016
`
`PETER LEPORE
`
`Index No.: 190263/2016
`
`VESTON LORDE
`
`Index No.: 190300/2016
`
`SHELDON SCHENKMAN
`
`Index No.: 190021/2016
`
`VINCENT ASCIONE, JR.
`
`Index No.: 190293/2016
`
`MARCO LEONE
`
`Index No.: 190324/2016
`
`1 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`3.
`
`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
`
`economizing the costs of litigation through joint trials or consolidation of numerous claims has
`
`been proven by experience to be false. Recent joint trials of consolidated and individual asbestos
`
`matters establish that joint trials do not promote judicial efficiency.
`
`5.
`
`There are countless examples of consolidated trial groups that include weeks-long
`
`jury selections, that are begun with over a dozen defendants, and that involve asking jurors to sit
`
`for months on end. Every Court has dealt with long and drawn out trials, many of which end up in
`
`absurdly high verdicts that judges then, almost universally, must spend their time on post-trial
`
`motion practice and lengthy remittitur.
`
`6.
`
`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
`
`were told in Assenzio and Bryant), or eight (8) weeks (as they were told in Dummitt), versus one
`
`(1) to two (2) weeks (as they were told in Curry, Dietz, Zaug and Benton), is clear, obvious and
`
`devastating. Common sense, and firsthand experience, has proven that when a pool of potential
`
`2
`
`2 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`jurors is advised that a trial may take up to three months (as opposed to two weeks) there is a
`
`thinning of that pool that is stark. A potential juror with a high degree of responsibility at work is
`
`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.
`
`7.
`
`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
`
`cross section of jurors is lost. A juror lost on day one of a two week selection process, because she
`
`could not sit for three months, is lost for good. There is no bringing her back once the case is
`
`whittled down to just one plaintiff.
`
`Case
`
`Cooney
`
`Zammit
`
`Gondar
`
`Geritano
`
`Bartolone
`
`Robusto
`
`Miller
`
`Hillyer
`
`North
`
`Hackshaw/Sweberg
`
`Juni
`
`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
`
`3
`
`3 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`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
`
`New York City from 2011 to 2016. Of those 26 verdicts, thirteen (13) have taken place in single
`
`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
`
`ended in a total defense verdict.
`
`9.
`
`In the five single plaintiff cases that did not result in defense verdicts, all but one
`
`had total awards of $7 million dollars or less, with two of those being under $4 million dollars,
`
`with set-offs reducing the amounts even further. Contrast that with the seven week
`
`Hackshaw/Sweberg trial with verdicts totaling $25 million; the eight-week Dummitt/Konstantin
`
`trial with verdicts totaling $51 million dollars; the Assenzio, et al., trial group with verdicts totaling
`
`$190 million dollars; the eight week Gondar trial with a $22 million dollar verdict; or even the
`
`Brown trial group which resulted in “only” $12.5 million in total verdicts. Since 2011, there have
`
`been more than $450 million dollars awarded by juries in New York City asbestos trials.
`
`10. While Plaintiff’s counsel, and the courts, often cite to “efficiency” as the main
`
`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.
`
`4
`
`4 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`drawn out jury trial, ending in an unsustainably large verdict, followed by a drawn out process
`
`whereby the judges determine what they believe to be a fair verdict. It is hard to see how either
`
`party’s due process rights are being protected in this scenario. With large, unsustainable verdicts
`
`being the norm in consolidated trials and with nearly all of them needing to be remitted
`
`substantially, the disconnect between the jury’s findings and what is deemed “reasonable” by the
`
`courts calls into question other aspects of the jury’s findings. The opportunity for prejudice is
`
`clear and undeniable.
`
`11.
`
`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.
`
`The data is clear and cannot be ignored or brushed aside. NYCAL must evolve and follow the lead
`
`of quite literally all of the largest asbestos dockets and re-examine consolidation in asbestos trials.
`
`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,
`
`“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
`
`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.
`
`Civ. Ct. N.Y. County 1995) (stating that “it is black letter law that a litigant in a civil action or
`
`proceeding is entitled to a fair trial”).
`
`5
`
`5 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`13.
`
`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
`
`emphasized that ultimately “[t]he benefits of efficiency can never be purchased at the costs of
`
`fairness.” Id. at 350.
`
`15.
`
`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,
`
`“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
`
`benefit derived from the conduct of a joint trial.”); Doll v. Castiglione, 86 A.D.2d 711, 446
`
`N.Y.S.2d 537 (3d Dep’t 1982) (denying consolidation, reasoning that “[t]he possibility of
`
`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 §
`
`6
`
`6 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`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.
`
`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;
`
`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
`
`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
`
`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.”
`
`Friedel v. Bd. of Regents of Univ. of N.Y., 296 N.Y. 347, 352 (1947) (citing Alford v. U.S., 282
`
`7
`
`7 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`U.S. 687, 691 (1931)); see also Graves v. Am. Express, 175 Misc.2d 285, 286, 669 N.Y.S.2d 463,
`
`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
`
`8
`
`8 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`Litig. (Angie; McKee), Nos. H-94286, H-93441, slip op. at 3-4 (Sup. Ct. Erie County, Sept. 15,
`
`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.
`
`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
`
`9
`
`9 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`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
`
`plaintiffs in each category the same amount of compensatory damages no matter what their
`
`injuries.” Id.
`
`10
`
`10 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`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
`
`Plaintiff’s jury verdict in a single plaintiff case is $9.1 Million. With more than half (8 of 13) of
`
`single plaintiff verdicts ending in defense verdicts. The average consolidated trial verdict, for the
`
`group, is $36.6 Million. Broken down further to take into account the average verdict per plaintiff
`
`in a consolidated group, it is $20.1 Million. With only one of twelve such trials ending in a defense
`
`verdict. So, to sum up, a plaintiff that has his case tried on its own, when he is victorious, receives
`
`on average $9.1 Million dollars, though it is more likely than not that the trial will result in a
`
`defense verdict. If that same plaintiff is lucky enough to have his case tried in a group, he can
`
`expect, on average, a verdict more than double the size, coming in at $20.1 Million. Again, while
`
`a one-plaintiff trial does not guarantee a defense verdict, nor should it, a consolidated trial all but
`
`ensures an enormous, generally unsustainable, plaintiffs verdict.
`
`D.
`
`Precautionary measures do not avert confusion and prejudice.
`
`29.
`
`Joint trials result in jury confusion and, consequently, prejudice to defendants that
`
`no precautionary measures can prevent. Jurors ordinarily are presumed to follow unambiguous
`
`instructions issued by the court. United States v. Gilliam, 994 F.2d 97, 100 (2d Cir. 1993).
`
`11
`
`11 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`However, “[t]he presumption that a jury will adhere to a limiting instruction evaporates where
`
`there is an overwhelming probability that the jury will be unable to follow the court’s instructions
`
`and the evidence is devastating to the defense.” United States v. Jones, 16 F.3d 487, 493 (2d Cir.
`
`1994) (citing Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)).
`
`30.
`
`In Malcolm, supra, the Second Circuit remanded forty-eight separate cases that
`
`were consolidated for a new trial as a result of 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 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.
`
`31.
`
`Similarly, in Cain, supra, thirteen separate cases were consolidated for trial over
`
`defendants’ objection. At the close of trial, the Court remanded the consolidated action for a new
`
`trial in each case. The Court stated it was “evident (unfortunately in hindsight) that despite all the
`
`precautionary measures taken by the Court (e.g., juror notebooks, cautionary instructions before,
`
`during and after the presentation of evidence, and special interrogatory forms) the joint trial of
`
`such a large number of differing cases both confused and prejudiced the jury.” 785 F.Supp. at
`
`1455. The Court concluded that the process used “left to the jury the impossible task of being able
`
`to carefully sort out and distinguish the facts and law of thirteen plaintiffs’ cases that varied greatly
`
`in so much critical aspects.” Id. at 1457.
`
`III.
`
`
`
`JOINT TRIAL IS NOT PROPER BECAUSE THE CASES LACK SUFFICIENT
`COMMONALITIES TO OVERCOME THE INHERENT INEFFCIENCY AND
`PREJUDICE OF JOINT TRIAL.
`
`32.
`
`A joint trial is not proper where “the actions involve many dissimilar issues which
`
`may confuse the jury.” Brown v. Brooklyn Union Gas Co., 137 A.D.2d 479, 480 (2d Dep’t 1988);
`
`12
`
`12 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`see also Simoni v. Costigan, 100 A.D.3d 531 (1st Dep’t 2012) (stating that “Although the personal
`
`injury actions and the legal malpractice action involve ‘a common question of law or fact’
`
`consolidation could engender jury confusion and prejudice the defendants in the malpractice
`
`action.”).
`
`33.
`
`In deciding whether different asbestos cases have sufficient commonalities to
`
`overcome the inherent risk of prejudice and jury confusion in joint trials, a court must consider the
`
`following factors, as outlined in Malcolm: (a) common worksite; (b) similar occupation; (c) similar
`
`time of exposure; (d) type of disease; (e) whether plaintiffs are living or deceased; (f) status of
`
`discovery in each case; (g) whether all plaintiffs are represented by the same counsel; and (h) type
`
`of cancer alleged. 995 F.2d 346. In applying the Malcolm evaluation, a New York court
`
`supplemented additional factors that must be considered: (i) whether the defendants are the same
`
`and represented by the same counsel; and (j) whether the type and manner of the alleged exposure
`
`are similar. Ballard v. Armstrong World Indus., 191 Misc.2d 625, 744 N.Y.S.2d 304 (Sup. Ct.
`
`Monroe County 2002); see also Ambruso v. A.O. Smith Water Prods. Co. (In re NYCAL), No.
`
`116087/2005 (Sup. Ct. New York County, May 1, 2013) (Jaffe, J.) (attached hereto as Exhibit D)
`
`(considering, in addition to the eight Malcolm factors, an additional factor that compares the
`
`number of defendants in each case).
`
`34.
`
`The cases do not share common occupations, worksites, manner of exposure,
`
`products, defendants, time of exposure, and whether plaintiffs are living or deceased. There are
`
`numerous worksites, occupations, products and medical histories at issue in these cases. In any
`
`joint trial, the jury would hear testimony on, and thus be required to keep track of, every single
`
`work location where each plaintiff alleges asbestos exposure to different products. Were any of
`
`these cases joined for trial, a single jury would need to hear and keep track of, among other things:
`
`13
`
`13 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`i. which plaintiff alleges exposure at each site,
`
`ii. when a given plaintiff was at a given site,
`
`iii.
`
`for what period of time the plaintiff was at the site, where, often at huge
`
`industrial complexes, a plaintiff worked at the site,
`
`iv.
`
`v.
`
`vi.
`
`the different ways in which plaintiff alleges exposure to asbestos at the site,
`
`the different types of products or materials to which plaintiff was exposed,
`
`the brand, trade or manufacturer name of those products or materials,
`
`vii.
`
`the asbestos content of each product, and
`
`viii.
`
`the chemical properties of each asbestos product. (e.g., wet, dry, bound in
`resin, etc.)
`
`The jury, therefore, will need to consider a staggering number of sites where
`
`35.
`
`plaintiffs allege exposure to asbestos. Each of the plaintiffs involved in this motion have provided
`
`testimony on their own behalf or produced witnesses that testified as to the underlying claimed
`
`exposures. Each of these cases involves multiple work sites, multiple employers, multiple
`
`products, multiple land owners, even multiple countries. The jury will need to keep separate each
`
`site when considering expert testimony. It is simply unrealistic, however, to expect that a jury will
`
`be able to keep track of who was exposed at which sites, and exactly when, for what duration, in
`
`what manner, and to which products.
`
`36. Moreover, because of the numerous differences in the cases and the many different
`
`defendants in each, the individual defendant’s defenses will be lost in the confusion of a joint trial.
`
`In Malcolm, the Second Circuit reversed, in part because one defendant had different defenses to
`
`liability and a joint trial would be highly prejudicial:
`
`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
`
`14
`
`14 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF: 09/01/2017
`
`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.
`
`995 F.2d at 352.
`
`The same concern applies here, where the jury will have great difficulty sorting out
`
`
`
`
`37.
`
`the evidence — including the evidence offered to establish the plaintiffs’ alleged exposures to each
`
`of the defendants’ asbestos-containing products — if the cases are tried together.
`
`A.
`
`
`38.
`
`The Cases in Proposed Group 1 Lack Sufficient Commonality Under
`the Malcolm Factor Analysis
`
`Below are the widely varying circumstances of each of the cases Plaintiffs propose
`
`as Group 1, illustrating that the proposed group would be a motley one. These four unique cases
`
`are summarized in the Proposed Group 1 Fact Chart, attached as Exhibit A.
`
`(1)
`
`Richard Hundertmark
`
`39.
`
`Richard Hundertmark (“Mr. Hundertmark”) passed away May 31, 2017 at age 73.
`
`Mr. Hundertmark was diagnosed with mesothelioma during or around July of 2016. He has claims
`
`remaining against approximately 69 defendants, as per the Preliminary Remaining Defendant List
`
`submitted by Plaintiffs.
`
`40. Mr. Hundertmark claimed that he was exposed to asbestos from taking technical
`
`courses as a student at Aviation High School from 1958 to 1961. See Transcript of the Deposition
`
`of Richard Hundertmark at 40-43 (attached herewith as Exhibit B.)2
`
`41. Mr. Hundertmark claimed exposure to various asbestos-containing products from
`
`his career working for and later operating a small HVAC service and repair business. Id. at 85-
`
`
`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.
`
`15
`
`15 of 27
`
`

`

`FILED: NEW YORK COUNTY CLERK 09/01/2017 12:31 PM
`NYSCEF DOC. NO. 273
`
`INDEX NO. 190293/2016
`
`RECEIVED NYSCEF:

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Try refreshing this document from the court, or go back to the docket to see other documents.

We are unable to display this document.

Go back to the docket to see more.