149 F.R.D. 490 (S.D.N.Y. 1993), 92 Civ. 6377 (RWS), In re New York Asbestos Litigation

Docket Nº:92 Civ. 6377 (RWS), 92 Civ. 7283 (RWS), 92 Civ. 2402 (RWS), 92 Civ. 3900 (RWS), 92 Civ. 0763 (RWS) and 88 Civ. 6403 (RWS).
Citation:149 F.R.D. 490
Opinion Judge:SWEET, District Judge.
Party Name:In re NEW YORK ASBESTOS LITIGATION. John Consorti, Alfred Luchnick, Peter Pulizzi, Walter Strafford, Vincent Tabolt and Richard Smolowitz, Plaintiffs.
Attorney:Levy Phillips & Konigsberg, New York City, for plaintiffs (Robert I. Komitor and Moishe Maimon, of counsel). McCarter & English, Newark, NJ by Richard P. O'Leary, for defendant Keene Corp. Heidell, Pittoni, Murphy & Bach, P.C., New York City, for defendant the Anchor Packing Co. and Garlock Inc. ...
Case Date:June 10, 1993
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 490

149 F.R.D. 490 (S.D.N.Y. 1993)

In re NEW YORK ASBESTOS LITIGATION.

John Consorti, Alfred Luchnick, Peter Pulizzi, Walter Strafford, Vincent Tabolt and Richard Smolowitz, Plaintiffs.

Nos. 92 Civ. 6377 (RWS), 92 Civ. 7283 (RWS), 92 Civ. 2402 (RWS), 92 Civ. 3900 (RWS), 92 Civ. 0763 (RWS) and 88 Civ. 6403 (RWS).

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

June 10, 1993

Twelve defendants in six consolidated tort actions based on asbestos exposure sought reconsideration of consolidation order. Additionally, one defendant sought stay of all asbestos-related litigation pending against it before court, and third-party defendant sought separate trial. The District Court, Sweet, J., held that: (1) consolidation was justified; (2) stay was inappropriate; and (3) circumstances did not justify separate trial for third-party defendant.

Ordered accordingly.

Page 491

Levy Phillips & Konigsberg, New York City, for plaintiffs (Robert I. Komitor and Moishe Maimon, of counsel).

McCarter & English, Newark, NJ by Richard P. O'Leary, for defendant Keene Corp.

Heidell, Pittoni, Murphy & Bach, P.C., New York City, for defendant the Anchor Packing Co. and Garlock Inc. (Lundell Wilson, of counsel).

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

Flemming, Zulack & Williamson, New York City, for defendant the Flintkote Co. (Cynthia B. Rubin, of counsel).

Hinckley & Silbert, P.C., New York City, for defendant Owens-Corning Fiberglas Corp. (Craig F. Wilson, of counsel).

Gladstein & Isaac, New York City, for defendant Veteran's Pipe Covering (Peter L. Herb, of counsel).

Lester Schwab Katz & Dwyer, New York City, for defendant Fibreboard Corp. (Cynthia Weiss Antonucci, of counsel).

OPINION

SWEET, District Judge.

Defendant corporations in six consolidated tort actions based on asbestos exposure have moved for separate trials pursuant to Rule 42(b), F.R.Civ.P. before this Court for an order reconsidering the prior consolidation of these cases pursuant to Rule 42(a), F.R.Civ.P., in light of the opinion by the Court of Appeals in the Second Circuit in Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir.1993) (" Malcolm" ) (also referred to as Kranz v. National Gypsum Co. ). Defendant Keene Corporation (" Keene" ) has moved for a stay of all asbestos-related litigation pending against Keene in this Court pending the determination of a limited fund settlement class in a separate action before the Honorable Jack B. Weinstein. One third-party defendant, Veteran Pipe Covering Co. Inc. (" Veteran" ) has moved pursuant also to Rule 14(a), F.R.Civ.P. as well for an order granting Veteran a separate trial.

For the reasons given below, all motions are denied.

Parties

The six cases remaining before this court are: Consorti, 92 Civ. 6377; Luchnick, 92 Civ. 7283; Pulizzi, 92 Civ. 2402; Strafford, 92 Civ. 3900; Tabolt, 92 Civ. 0763; and Smolowitz, 88 Civ. 6403. Of the eighty-eight original defendants, only twelve remain. Five of the direct defendants have not submitted papers in support of this motion.

Plaintiff John Consorti (" Consorti" ) alleges that he suffers from mesothelioma due to his exposure to certain of the defendants' products. Consorti, a smoker and 40% owner of Veteran, a family insulator business, claims exposure to approximately twenty-five asbestos-containing products, including pipe-covering, felt, roofing paper, mastics, cloth, sewing twine, adhesive, and asbestos-containing cement. Consorti originally sued the largest number of defendants, and the largest number of defendants are still left in his case. The defendants who have submitted papers are the Anchor Packing Company (" Anchor" ), alleged to have produced asbestos-containing gaskets and packing; the Flintkote Company (" Flintkote" ), alleged to have produced asbestos-containing tile and black Orangeburg pipe; Fibreboard Corporation (" Fibreboard" ), the Keene Corporation (" Keene" ), and Owens-Corning Fiberglas Company (" OCF" ), all alleged to have produced asbestos-containing insulation. OCF has interpleaded two additional third-party defendants, one of which is Veteran, Consorti's immediate employer.

Plaintiff Richard Smolowitz (" Smolowitz" ), a smoker, 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, at the Mitchell Lama projects in Rockaway in the late 60's and 70's, at the Roosevelt Raceway and the Brooklyn Navy Yard in Brooklyn from 1970-72, and at the Woolworth

Page 492

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 from 1971 to 1973. 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. Although asbestosis is not fatal, Smolowitz has alleged an increased fear of cancer requiring psychological care due to his exposure to the Defendant's products. The defendants who have submitted papers in Smolowitz are OCF and Flintkote.

The remaining four plaintiffs are deceased. The estate of plaintiff Peter Pulizzi (" Pulizzi" ), a smoker alleged to have died from mesothelioma, claims he was exposed due to his employment as a shipfitter to pipecovering at the Brooklyn Navy Yard from 1942 to 1945. The defendants who have submitted papers in Pulizzi are Fibreboard, Anchor, Keene, and Garlock, Inc. (" Garlock" ).

The estate of plaintiff Alfred Luchnick (" Luchnick" ), a nonsmoker alleged to have died from mesothelioma, claims he was exposed during his work as a welder at the Brooklyn Navy Yard, from 1940 to 1945. The defendants who have submitted papers in Luchnick are Fibreboard, Garlock, and Keene.

The estate of Walter Strafford (" Strafford" ), a smoker alleged to have died from mesothelioma or lung cancer,1 claims he was exposed to asbestos in 1962 from packing materials and gaskets, during work dismantling and refurbishing valves in a sheetmetal shop. The defendants who have submitted papers in Strafford are John Crane Inc. (" Crane" ) alleged to have produced asbestos-containing gaskets and packing material, and Anchor.

The estate of Vincent Tabolt (" Tabolt" ), a pipesmoker alleged to have died of mesothelioma, claims he was exposed 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. The sole Defendant who has submitted papers in Tabolt is Flintkote.

Prior Proceedings

Asbestos-related tort actions brought in the Southern and Eastern Districts of New York pursuant to New York's revival statute 2 were subdivided by the worksite at which the plaintiffs were exposed to asbestos. The three categories were cases involving exposure at the government-owned shipbuilding facility the Brooklyn Navy Yard, cases involving exposure during the construction or repair of powerhouses, and cases in which the plaintiffs' principle exposure was either at a shipyard other than the Brooklyn Navy Yard or a construction site not included in the Powerhouse consolidation. By Order dated May 1, 1991, the Honorable Charles L. Brieant, Chief Judge, directed plaintiffs' counsel to identify all personal injury and wrongful death cases filed in the Southern and Eastern Districts of New York which were not part of the Brooklyn Navy Yard or the Powerhouse consolidations for the purpose of transferring these cases for trial before this Court.

In 1977, 1980, 1985, 1986, and 1987 the Multi-District Litigation Panel (the " MDL Panel" ) considered the consolidation of asbestos litigation, and it declined to transfer the mass of pending asbestos litigation.3 On November 21, 1990, eight federal district

Page 493

judges responsible for the asbestos action in their respective districts urged further consideration. A Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation (1991) followed, advocating that asbestos litigation be viewed as a national problem requiring a comprehensive solution. In July 1991, the Panel concluded that " centralization in a single district of all pending federal personal injury and wrongful death asbestos actions is necessary," and ordered the pretrial consolidation of 26,639 cases in July 1991. Recognizing that " [t]he heyday of individual adjudication of asbestos mass tort lawsuits has long passed," (quoting In re Eastern & Southern Districts Asbestos Litigation ( In re Johns-Manville Corp., 129 B.R. 710 (E. & S.D.N.Y.1991) (Weinstein, J.)), the Panel consolidated the cases, In re Asbestos Products Liability Litig. (No. VI), 771 F.Supp. 415, 419 (J.P.M.L.1991).

The Panel thereafter transferred pending asbestos actions to the Eastern District of Pennsylvania for consolidation before the Honorable Charles P. Weiner, and reminded the parties and their counsel of their continuing responsibility to identify and transfer potential " tag-along" actions pursuant to Panel Rule 13(e).

The thirteen actions originally consolidated here were among these cases, and so became part of the universe of all federal asbestos cases when eight of the thirteen were referred to Judge Weiner. The other five are later-filed actions, transferred by order of the Clerk of the Southern District as " tag-along" actions. All were represented to be hardship cases involving malignancies or serious illness and requiring early trial.

All thirteen actions were remanded back to this Court by Judge Weiner by an Order dated December 4, 1992 on the basis of hardship to the plaintiffs arising out of trial delay. Subsequently it was...

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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
    ...for trial in this Court is fully recounted in prior opinions, 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 ......
  • 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
    ...twelve claims does not pose the same potential for confusion as a consolidation of forty-eight cases. See In re New York Asbestos Litig., 149 F.R.D. 490, 496 (S.D.N.Y.1993), aff'd sub nom. Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003 (2d Cir.1995), vacated on other grounds sub nom......
  • 667 A.2d 116 (Md. 1995), 23, ACandS, Inc. v. Godwin
    • United States
    • Maryland Court of Appeals of Maryland
    • October 18, 1995
    ...cases). This lead to a reconsideration by the Southern District of its prior consolidation order. In re New York Asbestos Litigation, 149 F.R.D. 490, 493-94 (S.D.N.Y.1993). In Malcolm, the Second Circuit's analysis applied factors set forth in 1983 by all of the judges of the United States ......
  • 173 F.R.D. 87 (S.D.N.Y. 1997), 90 Civ. 3473 (RWS), In re Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 16, 1997
    ...for relief. The parties have long known that Strafford's diagnosis would include lung cancer. In re New York Asbestos Litigation, 149 F.R.D. 490, 499 (S.D.N.Y.1993), aff'd sub nom., Consorti v. Armstrong, 72 F.3d 1003 (2d Cir.1995) (in consolidation opinion regarding an earlier cluster of p......
  • Free signup 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
    ...for trial in this Court is fully recounted in prior opinions, 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 ......
  • 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
    ...twelve claims does not pose the same potential for confusion as a consolidation of forty-eight cases. See In re New York Asbestos Litig., 149 F.R.D. 490, 496 (S.D.N.Y.1993), aff'd sub nom. Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003 (2d Cir.1995), vacated on other grounds sub nom......
  • 667 A.2d 116 (Md. 1995), 23, ACandS, Inc. v. Godwin
    • United States
    • Maryland Court of Appeals of Maryland
    • October 18, 1995
    ...cases). This lead to a reconsideration by the Southern District of its prior consolidation order. In re New York Asbestos Litigation, 149 F.R.D. 490, 493-94 (S.D.N.Y.1993). In Malcolm, the Second Circuit's analysis applied factors set forth in 1983 by all of the judges of the United States ......
  • 173 F.R.D. 87 (S.D.N.Y. 1997), 90 Civ. 3473 (RWS), In re Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 16, 1997
    ...for relief. The parties have long known that Strafford's diagnosis would include lung cancer. In re New York Asbestos Litigation, 149 F.R.D. 490, 499 (S.D.N.Y.1993), aff'd sub nom., Consorti v. Armstrong, 72 F.3d 1003 (2d Cir.1995) (in consolidation opinion regarding an earlier cluster of p......
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1 books & journal articles
  • Renewed look at the duty to warn and affirmative defenses.
    • United States
    • Defense Counsel Journal Vol. 61 Nbr. 2, April 1994
    • April 1, 1994
    ...458 (Pa. 1992). (27.) See Seefeld v. Crown Cork & Seal Co., 779 F.Supp. 461, 464 (D. Minn. 1991); In re New York Asbestos Litig., 149 F.R.D. 490, 497 (S.D. N.Y. 1993) (duty to warn not absolute; manufacturer must only warn of dangers about which it knew or should have known). (28.) Coff......