145 F.R.D. 644 (S.D.N.Y. 1993), 88 Civ. 6403 (RWS), In re New York Asbestos Litigation

Docket Nº:88 Civ. 6403 (RWS), 88 Civ. 8133 (RWS), 92 Civ. 0763 (RWS), 92 Civ. 3900 (RWS), 92 Civ. 2402 (RWS), 91 Civ. 2992 (RWS), 92 Civ. 7333 (RWS), 91 Civ. 7414 (RWS), 92 Civ. 7283 (RWS), 92 Civ. 7332 (RWS), 92 Civ. 7284 (RWS), 92 Civ. 6377 (RWS) and 92 Civ. 1113 (RWS).
Citation:145 F.R.D. 644
Opinion Judge:SWEET, District Judge.
Party Name:In re NEW YORK ASBESTOS LITIGATION. In re John B. CLARKSON, John Consorti, Carmine Guerriero, Edward Klein, Alfred Luchnick, Harold Molloy, Zachariah Morgan, Bernard Plastrik, Peter Pulizzi, Walter Strafford, Vincent Tabolt, Michael Mullin and Richard Smolowitz, Plaintiffs.
Attorney:Levy Phillips & Konigsberg, New York City (Robert I. Komiter, of counsel), for plaintiffs. McCarter & English by Richard P. O'Leary, Newark, NJ, for defendants ACandS, Inc. and Keene Corp. Heidell, Pittoni, Murphy & Bach, P.C., New York City (Michael D. Shalhoub, of counsel), for defendant The An...
Case Date:February 17, 1993
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 644

145 F.R.D. 644 (S.D.N.Y. 1993)

In re NEW YORK ASBESTOS LITIGATION.

In re John B. CLARKSON, John Consorti, Carmine Guerriero, Edward Klein, Alfred Luchnick, Harold Molloy, Zachariah Morgan, Bernard Plastrik, Peter Pulizzi, Walter Strafford, Vincent Tabolt, Michael Mullin and Richard Smolowitz, Plaintiffs.

Nos. 88 Civ. 6403 (RWS), 88 Civ. 8133 (RWS), 92 Civ. 0763 (RWS), 92 Civ. 3900 (RWS), 92 Civ. 2402 (RWS), 91 Civ. 2992 (RWS), 92 Civ. 7333 (RWS), 91 Civ. 7414 (RWS), 92 Civ. 7283 (RWS), 92 Civ. 7332 (RWS), 92 Civ. 7284 (RWS), 92 Civ. 6377 (RWS) and 92 Civ. 1113 (RWS).

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

February 17, 1993

Plaintiffs in 13 separate asbestos tort actions against 88 defendants and third-party defendants moved to consolidate their actions. The District Court, Sweet, J., held that: (1) consolidation for trial of 12 of the cases was warranted, and (2) action brought by plaintiff who claimed that asbestos exposure resulted in gastric (stomach) carcinoma would not be consolidated with other 12 since asbestos exposure associated with this type of cancer was matter of considerable debate.

Motion granted in part and denied in part.

Page 645

Levy Phillips & Konigsberg, New York City (Robert I. Komiter, of counsel), for plaintiffs.

McCarter & English by Richard P. O'Leary, Newark, NJ, for defendants ACandS, Inc. and Keene Corp.

Heidell, Pittoni, Murphy & Bach, P.C., New York City (Michael D. Shalhoub, of counsel), for defendant The Anchor Packing Co.

Budd Larner Gross Rosenbaum Greenberg & Sade, Short Hills, NJ (William D. Sanders, of counsel), for defendant Childers Products Co., Inc.

Barry, McTiernan & Moore, New York City (Suzanne M. Halbardier, of counsel), for defendant John Crane, Inc.

Fogarty & Fogarty, P.C., Mineola, NY (Edward Fogarty, Jr., of counsel), for defendant J.P. Stevens Inc.

Carter, Ledyard & Milburn, New York City (Lawrence F. Carnevale and Jonathan F. Mack, of counsel), for defendant Foster Wheeler Energy Corp.

Flemming, Zulack & Williamson, New York City (James B. Lynch and Cynthia B. Rubin, of counsel), for defendants W.R. Grace & Co. and The Flintkote Co.

Gregg J. Borri, New York City, for defendant Georgia-Pacific Corp.

Stryker, Tams & Dill, Newark, NJ (William S. Tucker, Jr., of counsel), for defendant Uniroyal, Inc.

Marshall and Bellard, Garden City, NY (Joseph A. Brown, of counsel), for defendant Vimasco Corp.

OPINION

SWEET, District Judge.

Plaintiffs in thirteen separate asbestos tort actions before this court have moved against eighty-eight defendants and third party defendants pursuant to Rule 42(a), F.R.Civ.P., to consolidate their actions.1

Page 646

For the reasons set forth below, the motion is granted in part and denied in part.

Prior Proceedings

These actions are thirteen of the so-called " asbestos cases" that have been supervised by the Multi-District Litigation (MDL) Panel for discovery and pre-trial purposes. All of these actions were originally filed in the Southern District of New York. Eight of these cases were transferred by order of the MDL Panel to the Honorable Charles Weiner of the Eastern District of Pennsylvania, and have been transferred back to this court by his Amended Order dated December 16, 1992 on the basis of hardship to the plaintiffs (who allege malignancies and asbestosis) arising out of trial delay. All relevant pre-trial procedures have been completed. The other five have been filed in the Southern District of New York and transferred to this Court as related cases.

This motion was heard on January 21, 1993, and considered fully submitted on January 23, 1993.

Facts

These cases consist of thirteen actions: Clarkson, 92 Civ. 1113; Consorti, 92 Civ. 6377; Guerriero, 92 Civ. 7284; Klein, 92 Civ. 7332; Luchnick, 92 Civ. 7283; Molloy, 92 Civ. 7414; Morgan, 92 Civ. 7333; Plastrik, 91 Civ. 2992; Pulizzi, 92 Civ. 2402; Strafford, 92 Civ. 3900; Tabolt, 92 Civ. 0763; Mullin, 88 Civ. 8133; and Smolowitz, 88 Civ. 6403.

Seven of the Plaintiffs are deceased (Mullin, from lung cancer; Clarkson, Luchnick, Pulizzi, Tabolt, from mesothelioma; Klein and Morgan, from causes unspecified, through they allege their malignancies were due to exposure to asbestos) and the actions are being handled by their estates.

Harold Molloy, a smoker, claimed exposure from his work as a pipefitter's helper from 1943 to 1944 at Bethlehem Steel on Staten Island and at the Todd Shipyard in Brooklyn; he alleges that his exposure to asbestos is the cause of his gastric cancer.

Richard Smolowitz alleges injury from asbestosis, resulting from exposure to taping materials, pipe insulation, and asbestos-containing cement in the course of his work as a taper from 1954 to 1980. Smolowitz has alleged that he worked at Seaview Village in 1966, at the Chatham Towers in lower Manhattan, and the Mitchell Lama projects in Rockaway in the late 60's and 70's, at Flatlands Avenue, in Brooklyn and Roosevelt Raceway from 1970-72, and at the Woolworth Building, 55 Water Street, Sloan Kettering Hospital, the New York Coliseum, Lincoln Center, the Exxon Building, 666 Fifth Avenue, 90 Park, the Empire State Building and at the Port Authority's World Trade Center. He also alleges that he was exposed to these asbestos-laden materials during his work at private residences from 1973 to 1979 and at Brooklyn College from 1979-1980.

Alfred Luchnick, a nonsmoker, claimed exposure during his work as a welder at the Brooklyn Navy Yard, from 1940 to 1945; his estate claims that his lung cancer was due to his exposure to asbestos.

Seven of the Plaintiffs bring claims arising out of their contracting mesothelioma, a cancer alleged to be linked to asbestos. John Clarkson, a nonsmoker who worked as a shipfitter's helper and railroad trackman specialist, claims exposure from asbestos-containing wirecovering, pipecovering, gloves and mats from 1943 to 1945 while working at the Federal Shipyard in Kearney, New Jersey and from 1951 to 1973 in the course of his repair work for the New York City Transit Authority at its Westchester Square Yard. John Consorti, a smoker and 40% owner of Veteran Pipecovering, a family insulator business, claims exposure to twenty-five asbestos-containing products, including pipe-covering, felt, roofing paper, mastics, cloth, sewing twine, adhesive, and asbestos-containing cement. Consorti has sued the largest number of defendants, and forty-one defendants are named only in this case. Bernard Plastrik, a smoker, claims exposure to pipecovering, asbestos-containing cement and (evidently metal) sheets during his work as a tinsmith's helper at the Todd Shipyard in New Jersey and the Erie Basin in Brooklyn from 1946 to 1948. Peter Pulizzi, a smoker, claims exposure due to his employment as

Page 647

a shipfitter and exposure to pipecovering at the Brooklyn Navy Yard from 1942 to 1945. Walter Strafford, a smoker, claims exposure to asbestos in 1962 from packing materials and gaskets, during work dismantling and refurbishing valves in a sheetmetal shop. Vincent Tabolt, a pipesmoker, claims exposure between 1965 and 1972 due to loading and unloading bags of asbestos-containing cement and apparently other substances at the Lowville Farmer's Cooperative Incorporated, New York. Michael Mullin, a smoker, claimed exposure from work as a plumber and boiler installer from 1959 to 1986.

The Plaintiffs Carmine Guerriero, Edward Klein, and Zachariah Morgan have filed standardized complaints which do not describe their diseases, occupations or alleged exposure.

The Defendants oppose the motion to consolidate on the grounds that the individual issues predominate in these cases and that consolidation will make jury confusion inevitable and prejudice the defendants. Of the eighty-eight defendants, twenty-three have been named in nine or more of the actions. Consolidation should not work to their disadvantage, and might actually produce a savings of their time and energy. Aside from the 41 defendants who have been named only in Consorti, those defendants who have been named in four or fewer of the actions have not been named in the same actions. It is impossible to accommodate all these defendants by consolidating smaller groups of plaintiffs: to arrange it so that certain of these defendants will face only one trial invariably means other defendants will be split up among separate trials. Since the degree of overlap makes it impossible to consolidate any particular subgroup or subgroups of plaintiffs in a way which would accommodate the interests of all the defendants, the large number of defendants and their distribution among the actions lends itself to consolidation rather then to severance.

Discussion

1. Standards Under Rule 42(a)

Rule 42(a), Federal Rules of Civil Procedure, provides:

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 Rule grants broad discretion to the district courts 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). The court may order consolidation upon its own motion, and the consent of the parties is not required. 7 Wright & Miller's Federal Practice § 2383 at 262 & 259 (1971 & Supp.1992). Actions involving the same parties are likely candidates for consolidation, but a common question of law or fact is enough; if a common question exists, court have often consolidated actions despite differences in parties. Id., § 2384 at 263-64.

...

To continue reading

FREE SIGN UP
10 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
    • 21 January 1994
    ...familiarity with which is assumed. See In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y.1993); In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y.1993). These cases were consolidated for trial by order and opinion of this Court dated February 12, 1993. See In re New York Asbesto......
  • 667 A.2d 116 (Md. 1995), 23, ACandS, Inc. v. Godwin
    • United States
    • Maryland Court of Appeals of Maryland
    • 18 October 1995
    ...verdicts. An excellent review of the opinions addressing consolidation of asbestos cases is found in In re New York Asbestos Litigation, 145 F.R.D. 644 (S.D.N.Y.1993). There the court approved the consolidated trial of all issues in twelve actions against eighty-eight defendants and third-p......
  • 9 F.Supp.2d 307 (S.D.N.Y. 1998), 92 Civ. 6377, In re Joint Eastern and Southern Dist. Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • 15 June 1998
    ...Litig., 847 F.Supp. 1086 (S.D.N.Y.1994); In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y.1993); In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y.1993). The prior proceedings and facts relevant to the instant motion are set forth below. Consorti owned 40% of Veteran Pipe Cover......
  • 995 F.2d 346 (2nd Cir. 1993), 853, Malcolm v. National Gypsum Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • 25 May 1993
    ...factors, courts contemplating consolidation must also take into account the number of cases affected. In re New York Asbestos Litig., 145 F.R.D. 644, 653 (S.D.N.Y.1993) (consolidating twelve cases). Here, the maelstrom of facts, figures, and witnesses, with 48 plaintiffs, 25 direct defendan......
  • Free signup to view additional results
10 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
    • 21 January 1994
    ...familiarity with which is assumed. See In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y.1993); In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y.1993). These cases were consolidated for trial by order and opinion of this Court dated February 12, 1993. See In re New York Asbesto......
  • 667 A.2d 116 (Md. 1995), 23, ACandS, Inc. v. Godwin
    • United States
    • Maryland Court of Appeals of Maryland
    • 18 October 1995
    ...verdicts. An excellent review of the opinions addressing consolidation of asbestos cases is found in In re New York Asbestos Litigation, 145 F.R.D. 644 (S.D.N.Y.1993). There the court approved the consolidated trial of all issues in twelve actions against eighty-eight defendants and third-p......
  • 9 F.Supp.2d 307 (S.D.N.Y. 1998), 92 Civ. 6377, In re Joint Eastern and Southern Dist. Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • 15 June 1998
    ...Litig., 847 F.Supp. 1086 (S.D.N.Y.1994); In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y.1993); In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y.1993). The prior proceedings and facts relevant to the instant motion are set forth below. Consorti owned 40% of Veteran Pipe Cover......
  • 995 F.2d 346 (2nd Cir. 1993), 853, Malcolm v. National Gypsum Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • 25 May 1993
    ...factors, courts contemplating consolidation must also take into account the number of cases affected. In re New York Asbestos Litig., 145 F.R.D. 644, 653 (S.D.N.Y.1993) (consolidating twelve cases). Here, the maelstrom of facts, figures, and witnesses, with 48 plaintiffs, 25 direct defendan......
  • Free signup to view additional results