Court: Supreme Court of New York, New York County

In this asbestos action, plaintiff’s counsel filed an order to show cause to join three cases for one joint trial: Cinfo, Morie, and Toscani. Defendants opposed the order to show cause. In NYCAL, the controlling case to determine whether cases should be joined for trial is Malcolm v. National Gypsum. Under Malcolm, the following factors are used to determine whether joinder is appropriate, including:

(1) common worksites;

(2) similar occupation;

(3) similar time of exposure;

(4) type of disease;

(5) whether plaintiffs were living or deceased;

(6) status of discovery in each case;

(7) whether all plaintiffs were represented by the same counsel; and

(8) type of cancer alleged. 

Under Malcolm, all of the factors do not need to be met. Instead, the NYCAL CMO provides that up to three cases where plaintiffs share the same disease may be joined if three or more Malcolm factors are met.

Here, plaintiffs argue that joinder is appropriate as they: worked on similar machinery and equipment (boilers, pumps, valves, and pipes), all passed away from pleural mesothelioma, discovery is complete, and are represented by the same counsel. Defendants advanced several arguments, contending that joinder would violate due process, be contrary to judicial economy, and that the plaintiffs do not share similar timeframes, occupations, or worksites.

Ultimately, the trial court set forth that joinder of these cases for trial purposes is appropriate for the reasons plaintiffs advanced. Further, some of the defendants who opposed are sued in two or more of the three cases. As such, the court found that six of the eight Malcolm factors were met.

Thus, the court granted the plaintiffs’ motion seeking a joint trial.

Read the full decision here.