Drago v. Celotex Corp.

125 F.R.D. 60, 1989 U.S. Dist. LEXIS 3380
CourtDistrict Court, E.D. New York
DecidedApril 5, 1989
DocketNos. 87 Civ. 4277 (TPG), 87 Civ. 4572 (RWS), 87 Civ. 4279 (RWS), 87 Civ. 4307 (LBS) and 87 Civ. 4457 (LLS)
StatusPublished
Cited by16 cases

This text of 125 F.R.D. 60 (Drago v. Celotex Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drago v. Celotex Corp., 125 F.R.D. 60, 1989 U.S. Dist. LEXIS 3380 (E.D.N.Y. 1989).

Opinion

SWEET, District Judge.

Defendant Celotex Corporation (“Celotex”) has moved under Rule 42(a), Fed.R. Civ.P., to sever four of the five cases naming it as a defendant that have been consolidated for trial. For the reasons set forth below, the motion is denied.

Prior Proceedings

These actions are so-called “asbestos cases” that have been the subject of multidistrict treatment for discovery purposes, a process supervised by the Honorable Charles P. Sifton of the Eastern District of New York. Judge Sifton grouped certain of the Southern District cases into “clusters” that share the same plaintiffs’ counsel. By letter dated October 5,1988, Judge Sifton asked me to coordinate the nine actions assigned to Cluster # 3.

After pretrial conferences and the setting of a trial date of March 28, 1989, the cases in Cluster #3 were settled against all the defendants, except Celotex.1 The following five cases remained open against Celotex: Drago, 87 Civ. 4277 (TPG), Kessler, 87 Civ. 4572 (RWS), Oefelein, 87 Civ. 4279 (RWS), Paskett, 87 Civ. 4307 (LBS), [62]*62and Perich, 87 Civ. 4457 (LLS). Throughout the period during which pretrial conferences were held, it was understood that the trial of one of the cases in the cluster might promote the resolution of the remaining cases.

When advised of the settlements and Celotex’s position on March 28, 1989, the five remaining cases were consolidated for trial over Celotex’s objection, and Celotex was granted leave to move to sever. Argument on Celotex’s motion was heard on March 31, 1989 and memoranda were received.

Pending Claims

In 1906, the Philip Carey Manufacturing Company (“Philip Carey”), an Ohio corporation, began manufacturing, selling, and distributing high temperature industrial insulation products containing asbestos. After a series of corporate mergers, Celotex emerged as Philip Carey’s successor in 1972 and continued to manufacture, sell, and distribute insulation containing asbestos. Numerous asbestos victims—including the five plaintiffs here—have sued Celotex, attributing their injuries to exposure to Celotex products.

Plaintiff Rudolph Perich (“Perich”), age seventy-seven, worked from 1929 until 1972 as an insulator installing asbestos products, including pipe covering, cement, and blocks. During his career, Perich worked in almost every powerhouse in the New York metropolitan area and at numerous major construction sites, working almost exclusively through Local 12. Perich alleges that he suffers from extensive pleural fibrosis and calcifications and from severe restrictive impairment of his breathing as measured by a pulmonary function test. From 1930 until 1974, Perich smoked an average of three cigars per day.

Plaintiff Gerald Drago (“Drago”), age fifty-eight, worked from 1948 until 1985 as a pipe coverer installing asbestos pipe covering, cement, and blocks. Working through Local 12, Drago served at numerous construction sites and hospitals in the New York metropolitan area. Drago, who claims to suffer from interstitial pulmonary fibrosis and pleural fibrosis, is a nonsmoker.

Plaintiff James Oefelein (“Oefelein”), who died in 1971 at age sixty-three, worked as a boilermaker from 1941 until 1945 at the Brooklyn Navy Yard where he insulated boilers using asbestos blocks, cement, and pipe covering. From 1946 until he died in 1971, Oefelein worked through Local 12 as a pipe coverer applying asbestos-containing blocks, cement, and pipe covering at numerous powerhouses and major construction sites in the New York metropolitan area. Oefelein died of malignant pleural mesothelioma, and his autopsy revealed extensive interstitial pulmonary fibrosis. From 1941 until 1971, Oefelein smoked an average of one pack of cigarettes per day.

Plaintiff Conrad Kessler (“Kessler”), who died in 1987 at age sixty, worked as a pipe coverer full-time from 1940 until 1960 and part-time from 1960 until 1966. Working through Local 12, Kessler applied asbestos pipe covering, cement, and blocks at several powerhouses and many major construction sites in the New York metropolitan area. Kessler died of lung cancer that allegedly resulted from asbestos exposure and had been diagnosed with interstitial pulmonary fibrosis prior to his death. He smoked an average of one pack of cigarettes per day from 1958 until 1984.

Plaintiff Harold Paskett (“Paskett”), age fifty-five, served as a metal latherer from 1952 until 1987. This involved installing metal during construction and renovation projects at major construction sites, hospitals, and powerhouses in the New York metropolitan area. Paskett alleges exposure to asbestos from asbestos workers working nearby, from the products they installed, and from removing asbestos insulation to perform his duties as a metal latherer. Paskett has been diagnosed as having larynx and lung cancer, as well as interstitial pulmonary fibrosis. He smokes an average of one pack of cigarettes per day.

Drago, Paskett, and Perich have sued Celotex for personal injury, seeking compensatory and punitive damages. Kessler and Oefelein have brought wrongful death actions against Celotex. Kessler seeks compensatory and punitive damages, and [63]*63Oefelein seeks compensatory damages only.

Consolidation for Trial

1. Standards Under Rule 42(a)
Rule 42(a) provides:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

This rule grants courts broad discretion to manage their dockets efficiently by expediting trials and eliminating unnecessary repetition and confusion. See Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir.1985); Dupont v. Southern Pacific Co., 366 F.2d 193, 195 (5th Cir.1966), cert. denied, 386 U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 106 (1967). In exercising its discretion, a court should weigh the time and cost savings to the parties, witnesses, and the court against the risks of prejudice and confusion resulting from consolidation. See Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir.1982), cert. denied, 460 U.S. 1102, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983) and 464 U.S. 1040,104 S.Ct. 703, 79 L.Ed.2d 168 (1984). A court also should consider the extent to which it can alleviate the risks of prejudice and confusion by giving cautionary instructions to the jury and by controlling the manner in which the claims and defenses are submitted to the jury for deliberation. See Hendrix v. RaybestosManhattan, Inc., 776 F.2d 1492,1495 (11th Cir.1985).

2.

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Bluebook (online)
125 F.R.D. 60, 1989 U.S. Dist. LEXIS 3380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drago-v-celotex-corp-nyed-1989.