Jurisdiction: Supreme Court of New York, New York County
In this asbestos action, plaintiffs seek to join the Munna and LaMonica cases for joint trial. First, the court noted that the NYCAL CMO provides that two cases may be joined for joint trial if the plaintiffs can meet the Malcolm factors. However, the plaintiffs do not need to meet all of the factors for the court to join the cases for trial. The Malcolm factors include:
(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.
Ultimately, the court found that six of the eight Malcolm factors applied to the cases at hand. Here, both plaintiffs worked as auto mechanics and alleged exposure from similar types of equipment. They are also living plaintiffs who developed lung cancer. Finally, discovery is complete and the plaintiffs are represented by the same counsel. The court further stated that not sharing common worksites does not preclude joinder. Instead, “[a]dequate safeguards can be put in place during the trial to avoid juror confusion.”
Thus, the court granted plaintiffs’ motion and joined the cases for trial.
Read the full decision here.