Court: Supreme Court of the State of New York, New York County (NYCAL)

This asbestos matter involves a motion filed by plaintiff to consolidate two asbestos actions.

In New York, “when actions involving a common question of law or fact are pending before a court, the court, upon motion . . .  may order the actions consolidated.” CPLR §602(a) A joint trial should be denied, however, where individual issues predominate over common issues and where the party opposing the joint trial demonstrates substantial prejudice.

Joinder in New York City Asbestos matters, specifically, is governed by Malcolm v. National Gypsum Company, 995 F.2d 346 [2nd Cit. 1993], which held that courts should consider the following factors when determining whether joinder is appropriate for multiple asbestos factors: (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.

Here, plaintiff argued that consolidation of the two asbestos actions was proper because the plaintiffs in each action were allegedly exposed to asbestos while working with defendants Mario & DiBono Plastering Co Inc., Tishman Liquidating, and Tishman Realty and Construction. Plaintiff further argued that both plaintiffs were diagnosed with pleural mesothelioma, shared common worksites, and were exposed during the same period, and that each case was trial ready.

Ultimately, the court determined that plaintiff failed to demonstrate sufficiently that the plaintiffs shared commonalities would warrant a joint trial. First, the court noted that the plaintiffs had different occupations – one worked as a union sheet metal mechanic, while the other worked as a plumber.

The court also noted that there was minimal overlap, as one plaintiff worked from 1957 to 1974 and the other worked from 1962 to 1999; that the two plaintiffs shared, at most, two worksites, and that there were only three defendants common in both cases.

For these reasons, the court denied plaintiff’s motion, holding that a joint trial could create an undue burden on the defendants and could lead to juror confusion.

Read the full decision here.