In re Asbestos Litigation

173 F.R.D. 81, 1997 WL 150125
CourtDistrict Court, S.D. New York
DecidedMarch 28, 1997
DocketNos. 87 Civ. 8085 (RWS), 88 Civ. 4212 (RWS), 90 Civ. 3473 (RWS), 92 Civ. 3900 (RWS), 92 Civ. 3901 (RWS), 93 Civ. 7177 (RWS)
StatusPublished
Cited by2 cases

This text of 173 F.R.D. 81 (In re Asbestos Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Asbestos Litigation, 173 F.R.D. 81, 1997 WL 150125 (S.D.N.Y. 1997).

Opinion

OPINION

SWEET, District Judge.

Plaintiffs in six separate asbestos tort actions before this Court have moved to consolidate claims for trial pursuant to Rule 42(a), Fed.R.Civ.P.

For the reasons set forth below, the motion will be granted.

Prior Proceedings

These actions are six of the so-called “asbestos cases” that have been supervised by the Multi-District Litigation Panel for discovery and pretrial purposes. Each of these actions was originally filed in the Southern District of New York and subsequently transferred by order of the Multi-District Litigation Panel to the Honorable Charles Weiner of the Eastern District of Pennsylvania. They have been transferred back to this Court for trial purposes on the basis of hardship arising out of trial delay.

The instant motion to consolidate was filed on January 15, 1997. Argument was heard on January 17, 1997, at which time the motion was considered fully submitted.

After the filing of the instant motions, the parties agreed to a separate trial in Conway, 93 Civ. 7177. Accordingly, this opinion addresses the appropriateness of consolidation of the remaining five plaintiffs’ actions.

Facts

These cases consist of five actions: Greff, 87 Civ. 8085; Moore, 88 Civ. 4214; McPad-den, 90 Civ. 3473; Strafford, 92 Civ. 3900; and Ciletti, 92 Civ. 3901.

Walter Strafford (“Strafford”), a smoker, claims exposure to asbestos in 1962 from packing materials and gaskets while working in a sheet metal shop dismantling and refurbishing valves allegedly containing asbestos packing. Strafford’s claim arises out of his contracting mesothelioma, a cancer caused by exposure to asbestos, and lung cancer.

Richard Moore’s (“Moore”) claim arises out of his contracting lung cancer allegedly as a result of exposure to asbestos during his work as a mason tenderer and laborer at numerous construction sites in New York City between 1959 and 1986.

The remaining three plaintiffs bring claims arising from their contracting mesothelioma. Alfred Ciletti (“Ciletti”) worked as a sheetmetal worker at various shipyards between 1940 and 1973. Joseph Greff (“Greff’) worked as a welder at a shipyard between 1941 and 1984. Martin McPadden (“McPad-den”) worked as a mechanic and steamfitter between 1957 and 1973 on several naval ships and in several power-generating stations.

[83]*83 Discussion

I. Consolidation, Toxic Torts, and Asbestos

Mass toxic tort cases, including asbestos cases, may be consolidated by a court if they meet the requirements of rule 42(a), Fed.R.Civ.P.:

When actions involving a common question of law or facts 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.

The consolidations of mass toxic tort cases has created its own body of law, but such consolidations are still governed by the concerns of Rule 42(a):

Consolidation of tort actions sharing common questions of law and fact is commonplace. This is true of asbestos-related personal injury cases as well.
The trial court has broad discretion to determine whether consolidation is appropriate. In the exercise of discretion, courts have taken the view that considerations of judicial economy favor consolidation. However, the discretion to consolidate is not unfettered. Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial.

Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir.1990) (citations omitted).

In Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir.1993), the Court of Appeals reversed an order of consolidation, holding that “it is possible to go too far in the interest of expediency and to sacrifice basic fairness in the process.” Id. at 354. Prior to Malcolm, the Court of Appeals had observed:

[W]e 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 plaintiffs — and defendant’s — cause not be lost in the shadow of a towering mass litigation.

In re Joint Eastern & Southern Dist. Asbestos Litig., 971 F.2d 831, 853 (2d Cir.1992).

The facts in Malcolm are significantly different from the underlying facts in the case at bar. In that trial, the Honorable Charles P. Sifton consolidated over 600 cases in which each plaintiff has been exposed to asbestos in one or more of over 40 power-generating stations, or “powerhouses,” in New York State. See In re Joint Eastern & Southern Districts Asbestos Lit., 798 F.Supp. 925 & 798 F.Supp. 940 (E. & S.D.N.Y.1992). The trial procedure in Malcolm resulted as follows:

Forty-eight were selected from the 600 cases for trial on a reverse-bifurcated basis, i.e. damages to be tried first and then liability.... Each of the 48 plaintiffs had named as defendants between 14 and 42 manufacturers or distributors of asbestos-containing products. Of these, 25 appeared at trial as direct defendants ... During the four-month damages trial, evidence of the debilitating diseases and/or deaths of all 48 plaintiffs was presented to the jury ... [D]etailed testimony for each victim was necessary....

Malcolm, at 348. In addition, there were a number of impleaded third-party defendants:

Several of the defendants impleaded third-party defendants. For example, on March 18, 1991, 13 days before the trial began, Judge Sifton allowed defendant Owens-Corning Fiberglas Corporation to implead over 200 companies. Some of the third-party defendants, in turn, impleaded fourth-party defendants.

Id.

Here, there are but five plaintiffs and six defendants, only two of which (Raymark and Owens Corning) have filed papers to date in opposition to a consolidated trial.

In Malcolm, the Court of Appeals found that the welter of information so overwhelmed the jury that, once the jury found the defendant liable, its particular defenses were lost in the sheer mass of information: “We conclude that under the unique circumstances of this ease, there is an unacceptably [84]*84strong chance that the equal apportionment of liability amounted to the jury throwing up its hand in the face of a torrent of evidence.” Id.

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Related

In re Asbestos Litigation
173 F.R.D. 87 (S.D. New York, 1997)

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Bluebook (online)
173 F.R.D. 81, 1997 WL 150125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-asbestos-litigation-nysd-1997.