125 F.R.D. 60 (E. & S.D.N.Y. 1989), 87 Civ. 4277 (TPG), In re Joint Eastern and Southern Districts Asbestos Litigation

Docket Nº87 Civ. 4277 (TPG), 87 Civ. 4572 (RWS), 87 Civ. 4279 (RWS), 87 Civ. 4307 (LBS) and 87 Civ. 4457 (LLS).
Citation125 F.R.D. 60
Opinion JudgeSWEET, District Judge.
Party NameIn re JOINT EASTERN AND SOUTHERN DISTRICTS ASBESTOS LITIGATION. v. CELOTEX CORPORATION. DRAGO KESSLER v. CELOTEX CORPORATION. OEFELEIN v. CELOTEX CORPORATION. PASKETT v. CELOTEX CORPORATION. PERICH v. CELOTEX CORPORATION.
AttorneyMorris J. Eisen, P.C. and Perry Weitz, P.C., New York City (Donald I. Marlin, Perry Weitz, of counsel), for plaintiffs. Kalb, Friedman, Siegelbaum and Moran, New York City (Andrew Constantine, II, Joel Slawotsky, of counsel), for defendant.
Case DateApril 05, 1989
CourtUnited States District Courts, 2nd Circuit, Eastern District of New York

Page 60

125 F.R.D. 60 (E. & S.D.N.Y. 1989)

In re JOINT EASTERN AND SOUTHERN DISTRICTS ASBESTOS LITIGATION.

DRAGO

v.

CELOTEX CORPORATION.

KESSLER

v.

CELOTEX CORPORATION.

OEFELEIN

v.

CELOTEX CORPORATION.

PASKETT

v.

CELOTEX CORPORATION.

PERICH

v.

CELOTEX CORPORATION.

Nos. 87 Civ. 4277 (TPG), 87 Civ. 4572 (RWS), 87 Civ. 4279 (RWS), 87 Civ. 4307 (LBS) and 87 Civ. 4457 (LLS).

United States District Court, E.D. New York and S.D. New York.

April 5, 1989

Asbestos manufacturer moved to sever five asbestos exposure cases which had been consolidated for trial. The District Court, Sweet, J., held that: (1) cases would be consolidated for trial, and (2) order permitting interlocutory appeal by manufacturer would not be certified.

So ordered.

Page 61

Morris J. Eisen, P.C. and Perry Weitz, P.C., New York City (Donald I. Marlin, Perry Weitz, of counsel), for plaintiffs.

Kalb, Friedman, Siegelbaum and Moran, New York City (Andrew Constantine, II, Joel Slawotsky, of counsel), for defendant.

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 multi-district 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),

Page 62

and 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

Page 63

Oefelein seeks compensatory damages only.

Consolidation for Trial

1. Standards Under Rule 42(a)

Rule 42(a) provides:

When...

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15 practice notes
  • 847 F.Supp. 1086 (S.D.N.Y. 1994), 92 Civ. 6377, In re New York Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • January 21, 1994
    ...that the asbestos-related disease of the living plaintiff would not prove fatal, In re Joint E. & S. Dists. Asbestos Litig., 125 F.R.D. 60, 66 (E.D.N.Y.1989), no prejudice could result from trying the claims of a living plaintiff with those who had already died. Discovery Status There h......
  • 942 S.W.2d 712 (Tex.App. - Dallas 1997), 05-95-00059, Owens-Corning Fiberglas Corp. v. Martin
    • United States
    • Texas Court of Appeals of Texas
    • March 14, 1997
    ...of the fate that awaits those claimants who are still living." Id. at 351-52 (citing In re Joint E. & S. Dists. Asbestos Litig., 125 F.R.D. 60, 65-66 (E.D.N.Y.1989)). In this case, two of the plaintiffs were deceased by the time the trial court consolidated the causes for trial. On......
  • 211 B.R. 545 (Bkrtcy.E.D.Mich. 1997), 95-20512, In re Dow Corning Corp.
    • United States
    • Federal Cases United States Bankruptcy Courts Sixth Circuit
    • July 29, 1997
    ...[that would] result[ ] from consolidation." Drago v. Celotex Corp. (In re Joint Eastern & Southern Dists. Asbestos Litig.), 125 F.R.D. 60, 63 (E. & S.D.N.Y.1989). With respect to the latter, it is clear that the potential for confusion would increase to the extent that the evid......
  • 899 F.2d 1281 (2nd Cir. 1990), 341, Johnson v. Celotex Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • March 20, 1990
    ...in determining whether to consolidate asbestos exposure cases. See, e.g., In re Joint Eastern and Southern Districts Asbestos Litigation, 125 F.R.D. 60, 64 (E.D.N.Y./S.D.N.Y.1989); In re Joint Eastern and Southern Districts Asbestos Litigation, slip op. at 7, 1990 WL 4772 (E.D.N.Y./S.D.N.Y.......
  • Request a trial to view additional results
14 cases
  • 847 F.Supp. 1086 (S.D.N.Y. 1994), 92 Civ. 6377, In re New York Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • January 21, 1994
    ...that the asbestos-related disease of the living plaintiff would not prove fatal, In re Joint E. & S. Dists. Asbestos Litig., 125 F.R.D. 60, 66 (E.D.N.Y.1989), no prejudice could result from trying the claims of a living plaintiff with those who had already died. Discovery Status There h......
  • 942 S.W.2d 712 (Tex.App. - Dallas 1997), 05-95-00059, Owens-Corning Fiberglas Corp. v. Martin
    • United States
    • Texas Court of Appeals of Texas
    • March 14, 1997
    ...of the fate that awaits those claimants who are still living." Id. at 351-52 (citing In re Joint E. & S. Dists. Asbestos Litig., 125 F.R.D. 60, 65-66 (E.D.N.Y.1989)). In this case, two of the plaintiffs were deceased by the time the trial court consolidated the causes for trial. On......
  • 211 B.R. 545 (Bkrtcy.E.D.Mich. 1997), 95-20512, In re Dow Corning Corp.
    • United States
    • Federal Cases United States Bankruptcy Courts Sixth Circuit
    • July 29, 1997
    ...[that would] result[ ] from consolidation." Drago v. Celotex Corp. (In re Joint Eastern & Southern Dists. Asbestos Litig.), 125 F.R.D. 60, 63 (E. & S.D.N.Y.1989). With respect to the latter, it is clear that the potential for confusion would increase to the extent that the evid......
  • 899 F.2d 1281 (2nd Cir. 1990), 341, Johnson v. Celotex Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • March 20, 1990
    ...in determining whether to consolidate asbestos exposure cases. See, e.g., In re Joint Eastern and Southern Districts Asbestos Litigation, 125 F.R.D. 60, 64 (E.D.N.Y./S.D.N.Y.1989); In re Joint Eastern and Southern Districts Asbestos Litigation, slip op. at 7, 1990 WL 4772 (E.D.N.Y./S.D.N.Y.......
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1 books & journal articles
  • RSI defendants fight for due process: "mass torts" needn't always be massive.
    • United States
    • Defense Counsel Journal Vol. 63 Nbr. 1, January 1996
    • January 1, 1996
    ...1102 (1983) (consolidating four wrongful death actions arising from one airplane crash); in re Joint E. and S. Dists. Asbestos Litig., 125 F.R.D. 60 (E.D. N.Y. 1989) (consolidating five asbestos cases). (7.) 106 F.R.D. 459 (E.D. Mich. 1985). (8.) Id. at 461, quoting In re N. Dist. of Cal. D......