On January 10, 2017 a
Motion-Secondary
was filed
involving a dispute between
Stacey Lynn Brown As Administratrix Of The Estate Of Steven L. Hall, Deceased,
and
Ace Hardware,
Ace Hardware Corporation,
Air & Liquid Systems Corporation, As Successor By Merger To Buffalo Pumps, Inc.,
Alfa Laval, Inc.,
Allegheny Teledyne Incorporated, Individually And As Successor To Allegheny Technologies Incorporated And Farris Valves And Or Sprague Pumps,
Amec Construction Management, Inc.,
American Biltrite, Inc., Individually And Successor To Amtico Floors,
Amtrol, Inc., Individually And As Successor To Thrush Products, Inc.,
A.O. Smith Water Products,
Armstrong International, Inc.,
Atwood & Morrill Co., Inc. D B A Weir Valves & Controls Usa Inc.,
Auburn Technology, Inc. F K A Alco Power, Inc.,
Aurora Pump Company,
Bechtel Corporation,
Blackmer Pump,
Borgwarner Morse Tec Llc,
Bw Ip International Co., Formerly Known As Borg Warner Industrial Products Inc., A Former Subsidiary Of And Successor To Borg Warner Corp. And Byron Jackson Pumps,
Carrier Corporation,
Cbs Corporation, A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Clark-Reliance Corporation, Individually And As Successor To Jerguson,
Cleaver-Brooks Company F K A Aqua-Chem, Inc.,
Courter & Company, Inc.,
Crane Co., Individually And As Successor To Cochrane,
Croll-Reynolds Engineering Company, Inc.,
Crosby Valve And Gage Company,
Crosby Valve, Inc.,
Cytec Engineered Materials, Inc. F K A Fiberite Corporation And A K A Ici Composites, Inc.,
Cytec Industries Inc., Individually And As Successor To American Cyanamid Company,
Dap, Inc. K N A La Mirada Products Co., Inc.,
Dean Pump Division,
Dezurik, Inc.,
Durez Corporation,
Duro Dyne Corporation,
E.I. Team, Inc. F K A J.L. Murphy, Inc.,
Electrolux Home Products, Inc., Individually And As Successor To Tappan And Copes-Vulcan,
Elliott Turbomachinery Co., Inc.,
Fairbanks Company,
Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation, Individually And As Successor To Northern Pump Company, Coffin And Peerless Pump Company,
Foster Wheeler, Llc,
Gardner Denver, Inc.,
General Electric Company,
Genuine Partscompany,
George A. Fuller Company,
Georgia-Pacific Corporation, Individually And As Successor To Bestwall Gypsum Company,
Gg Of Florida, Inc., F K A Higbee, Inc.,
Goodall Rubber Co.,
Goulds Pumps, Inc.,
Greene, Tweed & Co., Llp, Individually And As Successor To Palmetto Packings,
Grinnell Corporation,
Henry Technologies, Inc.,
Hexion Specialty Chemicals, Inc. F K A Borden Chemical, Inc.,
Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp.,
Howden Buffalo, Inc., Individually And As Successor-In-Interest To Fb Sturtevant, The Howden Buffalo Group And Buffalo Fan,
Imo Industries, Inc. F K A Delaval, Inc., Individually And As Successor To Turbine Equipment Company,
I.T.T. Industries, Inc., Individually And As Successor To Bell & Gossett,
I.T.T. Industries, Inc., Individually And As Successor To Hoffman Specialty, Bell & Gossett, And Foster Engineering,
Jenkins Bros.,
John Crane, Inc.,
Kaiser Gypsum Company, Inc.,
Koppers Company, Inc.,
Koppers Industries, Inc.,
Lighttolier Incorporated,
Maremont Corporation, Individually And As Successor To Grizzly,
Metropolitan Life Insurance Co.,
Morse Diesel, Inc.,
Morse Diesel International, Inc.,
Napa Auto Parts A K A National Automotive Parts Association,
Nash Engineering Company,
Northrop Grumman Corporation, Individually And As Successor To George A. Fuller Company,
Occidental Chemical Corporation, Individually And As Successor To Durez Corporation,
Owens-Illinois, Inc.,
Patterson Pump Company, A Subsidiary Of The Gorman-Rupp Company And Individually And As Successor To C.H. Wheeler Manufacturing And Griscom Russell,
Plastics Engineering Company, Individually And As Successor To Plenco,
Pneumo Abex Corporation,
Pneumo-Abex Llc, Individually And As Successor To Abex Corporation, A Delaware Corporation,
Progress Lighting, Inc.,
Research-Cottrell, Inc. N K A Awt Air Company, Inc.,
Riley Power, Inc. F K A Babcock Borsig Power, Inc. And F K A Riley Stoker Corporation D B A Db Riley, Inc.,
Rogers Corporation,
R.T Vanderbilt Company, Inc., Individually And As Successor To International Tale Co., International Pulp Co., And Governeur Tale Co., Inc.,
Sid Harvey Industries, Inc.,
Sid Harvey Supply, Inc.,
Spence Engineering Company, Inc.,
Spirax Sarco, Inc.,
Spx Cooling Technologies, Inc., Individually As Successor To Marley Cooling Technologies And Marley Cooling Towers,
Superior Lidgerwood Mundy Corp., A K A Lidgerwood Manufacturing Co., Individually And As Successor To M.T. Davidson Co.,
Thomas O'Connor & Company, Inc., Currently Known As O'Connor Constructors, Inc.,
Thrush Co., Inc.,
Treadwell Corporation,
Turner Construction Company,
Tuthill Corporation, Individually And As Successor To Kinney Vacuum Pump Company, Kinney Pump Company And Murray Turbine,
Tyco Flow Control, Inc., Individually And As Successor To Keystone And Grinnell Corporation,
Tyco International,
Union Carbide Corporation,
Union Pumps, As A Textron Company,
United Conveyor Corporation,
Velan Valve Corp.,
Warren Pumps, Llc, Individually And As Successor To The Quimby Pump Company,
William Powell Company,
Wolff & Munier, Inc.,
York International Corporation, Individually And As Successor To Frick Company,
Yuba Heat Transfer, A Division Of Connell Limited Partnership N K A Spx Heat Transfer Llc,
Zurn Industries, Inc. A K A And Successor-In-Interest To Erie City Iron Works,
for Torts - Asbestos
in the District Court of New York County.
Preview
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No.: 190012/2017, et al.
STACEY LYNN BROWN, as Administratrix of the . .
Estate of STEVEN L. HALL, deceased, et al.
Hon. Gerald Lebovits
Plaintiff, AFFIRMATION IN SUPPORT
PLAINTIFFS'
MOTION FOR
v. TRIALS
JOINT
A.O. SMITH WATER PRODUCTS, et al.,
Defendants.
Michael Macrides, an attorney duly admitted to practice before the Courts of the State of
New York, affirms the following statements to be true under the penalties of perjury:
1. I am an attorney with the law firm Belluck 4 Fox, LLP, attorneys for the ten (10)
Plaintiffs listed below whose actions have all been transferred by the Hon. Lucy Billings to this
Court for trial pursuant to the New York City Asbestos Litigation Amended Case Management
Order's in extremis cluster provisions (hereinafter CMO) (located at www.nycal.net):
1. JOSEPH M. BICOCCHI Index No.: 190351/2016
2. STEVEN L. HALL Index No.: 190012/2017
3. ANNA NOCELLI Index No.: 190365/2016
4. ANTHONY RICHICHI Index No.: 190021/2017
5. ALBERT R. TASKER Index No.: 190111/2017
6. ROBERT W. TURNER Index No.: 190006/2017
7. JOHN HERMANN Index No.: 190253/2016
8. MYRON W. MILLER Index No.: 190257/2016
9. PETER J. ANGLIM Index No.: 190347/2015
10. KATHRYN ASTON Index No.: 160588/2015
2. I am fully familiar with the facts of these ten cases, and I make this affirmation
Plaintiffs'
pursuant to CPLR § 602(a) in support of motion to join for trialthe three (3) asbestos
cases listed below:
1. STEVEN L. HALL Index No.: 190012/2017
2. ALBERT R. TASKER Index No.: 190111/2017
3. MYRON W. MILLER Index No.: 190257/2016
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followed forthwith by a joint trial of the two (2) asbestos cases listed below:
1. ANNA NOCELLI Index No.: 190365/2016
2. KATHRYN ASTON Index No.: 160588/2015
followed forthwith by a joint trial of the two (2) asbestos cases listed below:
1. ANTHONY RICHICHI Index No.: 190021/2017
2. ROBERT W. TURNER Index No.: 190006/2017
followed forthwith by a joint trial of the two (2) asbestos cases listed below:
1. JOHN HERMANN Index No.: 190253/2016
2. PETER J. ANGLIM Index No.: 190347/2015
Or, in the alternative, for a joint trialof the foregoing asbestos cases in a configuration deemed
appropriate by this Court.
3. At this time,..we are not to id 3 ill .
Joseph Bicocchi matter which
seeking
was also transferred by Judge Billings as part of Belluck 4 Fox's October 2017 in extremis
'
cluster.
4. In this regard, we anticipate that the defendants will categorically object to a joint
trialof composition - an approach that conflicts with the the and
any CPLR, CMO, controlling
appellate authority, and which would invariably result in an extraordinary injustice to the parties,
including defendants. S_ee CPLR 602; CMO at § XXV; Peraica v. A.O. Smith Water Prod. Co.,
143 AD3d 448, 451 43 Dept. 2016), appeal dismissed, 28 ..Ed
..
N.Y.3d 3367426177; In re 74 York
City Asbestos Litigation [Konstantin/Dummitt], 121 AD3d 230 (1st Dept 2014), aff'd 27 NY3d
1172 (2016).
5. Importantly, the newly implemented CMO restricts joint trials to only two or at
most three matters (provided the plaintiffs satisfy certain conditions. S_e_eCMO at § XXV. These
I Plaintiff thatthe Bicocchi matter be subsequent
does, however, request assigned a trialdate to theconclusion of the
suggested trialgroups outlined herein.
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implemented provisions limit what was routinely permitted under the caselaw. S_e_e
newly
Peraica, supra (joinder of eight asbestos matters for trialappropriate); Konstantin, supra (joinder
of seven asbestos matters for trial appropriate); Matter of New York City Asbestos Litigation
[Bernard), 99 AD3d 410, 411 (1st Dept 20123 ("IAS court providently exercised its discretion in
consolidating these actions for joint trial,as they involve common questions of law and fact.");
In re New York City Asbestos Litig.,
.,111 AD3d 574 (1st Dept, 2013) (joint trials involving
appropriate).2
different diseases are
6. Consequently, itis respectfully submitted that joinder under the CMO should be
liberally granted, particularly where the plaintiffs in these proposed groupings share numerous
commonalities of fact and law, and defendants will not suffer any prejudice to a substantial right.
See, ea, Altuchoff v A.O. Smith (annexed hereto as Exhibit "A") (seven cases joined for trial);
Assenzio v A.O. Smith (annexed in relevant pages as Exhibit "B").
7. The Plaintiffs stress that seriatim trials will severely prejudice the Plaintiffs, and
will result in unnecessary duplication of evidence, experts, and issues, as well as waste precious
judicial resources. See, ea, D'Esposito v Bird Incorporated, et al. (see Exhibit C annexed at 1)
the preference for joint trials in the "interest of judicial and ease of decision-
(noting economy
making"
as balanced against the respective rights of the parties).
8. It issubmitted that, here, a joint trialof the H_all,Tasker, and Miller actions is
warranted, followed by a joint trialof the Nocelli and Aston actions, followed by a joint trial of
the Richichi and Turner, followed by a joint trial of the Hermann and Anglim actions.
2 For Department in
example, the First Peraica sanctioned the nisiprius Court's decision to joinfor triala living
insulator(Ivo Peraica), a carpenter(Murray Blonder), a deceased printer(John Dellaratta),a fireproofing laborer
(Antonio Perez),a Naval fireman & boilertender (Roberto Roman), a plumber/mechanic (Frank Rugnetta), a
deceased carpenter (Raymond Sabo), and a transit
authority worker (George Santiago). See In re New York City .
Asbestos Liti ation, 2012 WL 3276720 (Sup, Ct.,NY Cty.,August 7,2012).
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FACTUAL BACKGROUND
9. To facilitate this Court's determination regarding joining these matters for trial, .
"D"
the Plaintiffs have created two charts. Annexed hereto as Exhibit is a chart detailing
"E"
general characteristics of each Plaintiff in this cluster. Annexed hereto as Exhibit is a chart
detailing the similarities in the products of exposure among the Plaintiffs in this cluster. The
pertinent facts of each case are as follows:
10. Steven L. Hall died at the age of 69 as a result of mesothelioma (see Exhibit F
annexed in relevant pages - deposition excerpts). Mr. Hall worked at & Smith
Discovery Binney
man,"
in the 1970s as a "pump and valve and he was exposed to the asbestos insulation, gasket,
and packing components of those products (see, ea, Exh F at 207, 229-34, 238, 242-43, 292,
297-98, 305-10). While working for Westinghouse at various powerhouses beginning in 1980,
Mr. Hall was further exposed to asbestos from repair work on pumps, valves, and turbines
performed in his vicinity (see, ea, Exh F at 361-62, 378-86, 393, 396-97, 409, 420). He was
additionally exposed to asbestos while performing brake and clutch jobs at a service station and
as side work (see, ea, Exh F at 106-09, 112-18, 123-26, 136-54, 160-61, 167-68, 173-76). Mr.
Hall also ran a small side construction business where he was exposed to asbestos from sanding
joint compound, scraping caulk, and cutting vinyl asbestos floor tiles during their installation in
870).3
the 1960s and 1970s (Exh F at 90-92, 95-98, 100-04, 870).
11. Albert R. Tasker is currently 69 years old and is living with mesothelioma (see
Exhibit G annexed in relevant pages - Videotaped de bene esse deposition excerpts). Mr. Tasker
was exposed to asbestos while working as a mechanic in three ways: first, while performing
3 Mr. Hall sufferedadditional asbestos exposure the course ofpersonal home renovation products while
during using
the same construction products - joint
i.e., compound, caulk,and vinylasbestos floortiles(Exh F at 49-52, 55-58,
99-l 00).
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automotive brake and clutch jobs for people in his neighborhood in the 1960s (Exh 6 at 33-39);
second, as a mechanic's assistant at a marina, which involved scraping asbestos gaskets off of
marine engines and cleaning up his workspaces (Exh 6 at 39-45); and third, while serving in the
United States Navy from 1967 through 1971 as an aircraft mechanic, during which he worked on
engines (Exh 6 at 50-52). Mr. Tasker was further exposed to asbestos during his Naval service
from insulation-covered pumps, valves, and turbines in the boiler and engine rooms of the USS
DeLong's (DE-684) (Exh 6 at 46-49).
12. Myron William Miller died at the age of 78 as a result of mesothelioma. Mr.
Miller died prior to being deposed, but his wife and coworker Deborah testified on his behalf
(see Exhibit H annexed in relevant pages - deposition excerpts). Mr. Miller started his
Discovery
- Corporation" - 51-
own business "Steel Master Material Handling in the late-1960s (Exh H at
52, 56-57). His business entailed going to factories, mills, foundries, and plants that were
liquidating their assets and purchasing equipment to refurbish and sell (Exh H at 63-65, 69, 72,
"main"
383). A part of his business was mechanical work related to refurbishing forklifts, and
Mr. Miller was exposed to asbestos from the company inception through the 1980s from brake
and clutch jobs on this equipment (Exh H at 63, 73-74, 76-84, 384-85). Steel Master Material
Handling Corporation also regularly purchased used pumps and valves, and Mr. Miller was
further exposed to asbestos during the same period when he replaced their packing and gaskets
before reselling them (Exh H at 84-92, 233, 355-56, 379-81).
13. Anna Nocelli is currently 66 years old and is living with mesothelioma (see
Exhibits I-K annexed in relevant pages). Mrs. Nocelli's husband was a union carpenter from
1974 through 2006 (Exh I at 66-69; Exh 9 at 25-28; Exh K at 28, 33), and he also performed side
construction work finishing residential basements (Exh J at 111-14). From around 1974 to 1980,
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her husband Guido would arrive home each night after work covered in dust from his
construction work (Exh I at 71-72; Exh K at 29-30). Mr. Nocelli's clothing was dusty from the
sanding of joint compound and cutting of fire doors (see, e_&, Exh J at 37, 39-41, 49, 51, 57, 70,
79, 118, 122, 142-45, 148-50, 220). Mrs. Nocelli was exposed to asbestos-laden dust from her
husband's contaminated work clothing when she shook itout and handled it while doing his
laundry (Exh I at 71-75, 78-80; Exh J at 139-42; Exh K at 33-36), as well as from hugging him
when he returned home from work (Exh K at 30-31).
14. Katheryn Aston is currently 77 years old and is living with mesothelioma (see
Exhibits L-M annexed in relevant pages). Mrs. Aston's husband John was a carpenter when she
met him in and he continued in this vocation until he retired - which included work both
1962,
work"
on union jobs and while performing "side to make extra money (Exh L at72-73; Exh M at
"dusty"
25, 83-85). Her husband regularly returned home from work with clothing (Exh L at 76,
162-64). Mr. Aston's clothing was covered with asbestos-laden dust from working with and in
the vicinity of others using joint compound, fire doors, roofing materials, ceiling tiles, and floor
tiles (see, e_&, Exh M at 33-34, 95-96, 99-103, 117-18, 123-24, 127, 130-31, 145-48, 157-59,
542-48). Mrs. Aston was exposed to asbestos several times each week from shaking out her
husband's contaminated work and them for (Exh L at 162-
clothing handling laundering 77-78,
64).4
15. Anthony Richichi is currently 73 years old and is living with mesothelioma (see
Exhibit N annexed in relevant pages - deposition excerpts). Mr. Richichi served in the
Discovery
United States Navy for four years from 1961 through 1965 aboard the USS Robert L. Wilson
(DD-847) and USS Waller (DD-466) (Exh N at 31, 33, 51). He was exposed to asbestos on the
4 Mrs. Aston was furtherexposed to jointcompound during a home renovation project when she swept up afterher .
husband's work (Exh M at 48-50).
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USS Waller when the forced air system blew contaminated dust from the machinery spaces into
his workstation (Exh N at 70-73, 145). His shipmate Richard Bright, who also testified on his
behalf, stated that the dust that wafted into Mr. Richichi's work area came from maintenance and
repair work on the ship's valves and pumps, which utilized asbestos-containing gaskets, packing,
and insulation (see Exhibit O annexed in relevant pages at 10-11, 16-18, 23, 28-29, 35-43, 61-64,
73-74 - Shipmate deposition excerpts). Mr. Richichi was further exposed to asbestos in
67-68,
shacks"
the "torpedo of his ships, which were covered with asbestos insulation (Exh N at 59-63,
69-71). The plaintiff was additionally exposed to asbestos from personal home renovation
projects and side construction work using joint compound (see, e_.ye,Exh N at 36-38, 125-28,
135-37).
16. Robert W. Turner died at the age of 80 as a result of mesothelioma (see Exhibit
P annexed in relevant pages - deposition excerpts). Mr. Turner served in the United
Discovery
States Navy for three years between 1954 and 1957, and he was stationed on the USS Wisconsin
(BB-64) during the majority of his Naval service (Exh P at38, 44). He served as a fireman,
machinist's mate, and petty officer in Boiler Room Number 1 on that ship (Exh P at 44-46, 49,
60). Therein, Mr. Turner was exposed to asbestos from performing maintenance and repair work
on the ship's pumps and valves, which involved changing their packing, gaskets, and insulation
(Exh P at 60-61, 65-86, 244-47). He was further exposed to asbestos when his shipmates .
performed similar work on pumps and valves in his presence (Exh P at 89-90). Mr. Turner
suffered additional asbestos exposure on the USS Wisconsin when the ship was overhauled
while in which involved repairs on the ships and boilers (Exh P at 149-
dry dock, pumps, valves,
53).
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17. John Hermann is currently 80 years old and is living with asbestos-related lung
cancer (see Exhibit annexed in relevant pages - Videotaped de bene esse deposition excerpts).
Q
Mr. Hermann served for four years in the United States Navy from 1956 through 1960 (Exh Q at
stationed aboard two aircraft carriers - the USS Antietam and USS
25-26). He was (CV-36)
Ranger - that period (Exh at 27-29). While as a fireman and
(CV-61) during Q working
ships'
electrician's mate in the machinery and auxiliary spaces, Mr. Hermann was exposed to
asbestos from pumps, valves, boilers, turbines, condensers, and evaporators when he and his
shipmates disturbed replaced and scraped off gaskets (Exh at 34-
insulation, packing, Q 29-30,
37, 39-106). Mr. Hermann suffered additional asbestos exposure from home renovation projects
involving joint compound (Exh Q at 116-26), as well as from his home boiler that was covered in
deteriorating insulation (Exh Q at 111-16).
18. Peter J. Anglim died at the age of 81 as a result of asbestos-related lung cancer
Exhibit R annexed in relevant pages - deposition excerpts). Mr. Anglim was a
Discovery
New York City firefighter for more than 30 years between 1963 and 1995 (Exh R at 142). In the
course of his duties as a firefighter, Mr. Anglim was exposed to asbestos from disturbing boiler
insulation while extinguishing fires and performing boiler inspections (Exh R 187-97, 210-17).
He was also exposed to asbestos from his home boiler that was covered in deteriorating
insulation (Exh R at 61, 69). Mr. Anglim suffered further asbestos exposure from home
renovation projects involving joint compound (Exh R at 81-83, 108-12). He also worked at his
brother's sewage construction business, and he was exposed to asbestos from the installation and
cutting of transite pipe (Exh R at 236, 241-42, 249, 255-S8),
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L JOINT TRIALS OF THE FOREGOING PLAINTIFFS IN THE SUGGESTED
CONFIGURATIONS ARE WARRANTED SINCE SUFFICIENT COMMON
QUESTIONS OF LAW AND FACT EXIST
. 19. In determining consolidation, New York courts have generally adopted the
suggested eight-part test set forth by the Second Circuit Court of Appeals in Malcolm v National
Gypsum Co. (995 F2d 346 (2d Cir 1993)). The factors to be liberally considered include (1)
common worksite, (2) similar occupation, (3) similar time of exposure, (4) type of disease, (5)
whether Plaintiffs are living or deceased, (6) status of discovery in each case, (7) whether all
Plaintiffs are represented by the same counsel, and (8) type of cancer alleged. Id. at 351-52.
20. While the CMO explicitly limited the number of NYCAL matters that may be
joined for trial,itpreserved the balancing test by which joinder is evaluated in asbestos:
Two cases may be joined for trial where plaintiff demonstrates that joinder is
warranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York
State cases interpreting Malcolm. Malcolm and itsprogeny list factors to measure
whether cases should be joined; itis not necessary under Malcom that all such
factors be present to warrant joinder.
Upon good cause shown, a Trial Judge in NYCAL may join a maximum of three
cases for trialwhere itdetermines that 1) joinder is warranted under three or more
of the factors described in Malcolm and New York State cases interpreting .
Malcolm, and 2) where the three plaintiffs share the same disease.
disease"
For purposes of this section "same shall mean that allthe plaintiffs in the .
three cases proposed to be joined for trial share one of the following four
categories of disease [including]... pleural mesothelioma...
(b).5
See CMO § XXV Consequently, prior New York decisions interpreting the scope and
import of the Malcolm factors are stillcontrolling. Se_e, ea, Matter of New York City Asbestos
Litigation[Bernard), 99 AD3d 410, 411 (1st 092013223 all of the factors need 9 present;
5
PlaintiffsanticipatethatDefendants willraisebaseless arguments based on purported constitutional violationsin
opposition to theinstant motion, or argue thatjoinder is never warranted in asbestos actions. Itis telling,
however,
that thesearguments were soundly rejected earlierthismonth by the FirstDepartment. See In re New York City
A~sbestos Litt ., AD3d, 2018 ttfL 1414125 (1stDept Msr. 22, 2018).
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consolidation is appropriate so long as 'individual issues do not predominate over the common
questions of law and fact'."); accord Konstantin supra at 242.
21. Indeed, the test has never been strictly limited to the eight Malcolm factors, since
"suggested"
they are not the sole considerations. The factors are simply and are merely a
guideline. See e_.g.,Altholz et al.v American Standard, Inc., 11 Mise 3d 1063(A) (Sup Ct NY
Co 2006) (Shulman, J.). And no one Malcolm factor is more important than another. The test is
a flexible one, which focuses on balancing rather than absolute satisfaction of any single
factor(s). See Malcolm, supra at 351. A rigid interpretation of any of these factors is contrary to
the CMO and the Malcolm Court.
A. The Hall, Tasker, and Miller Matters Should be Joined for Trial
22, It issubmitted that the Hall, Tasker, and Miller Plaintiffs should be joined for trial
cause"
as their matters share substantial commonality of fact and law, and there is "good for
joinder.
23. GOOD CAUSE: At the outset, in addition to substantial common factual and
legal issues that underpin these matters, including a common disease as discussed infra, itis
cause"
submitted that "good exists to warrant a joint trial of the three aforementioned cases. In
Mr. Tasker is a plaintiff from mesothelioma - an
particular, living suffering invariably
excruciating and ultimately fatal cancer that is characteristically terminal within a short period.
Seee, ea, Norfolk & W. Ry. . Co. v. Ayers, 538 U.S. 135, 168 (2003) dissent ("death is almost
certain within a short time from the onset of mesothelioma"). It isrespectfully submitted that Mr.
Tasker's prognosis alone establishes good cause, as a joint trialassists in maintaining the spiritof
the CMO and CPLR's accelerated trialprovisions, such that he may have a chance to live to see
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his day in Court. S_ee CMO at XV; CPLR §§ 3403 (a)(6) and 3407. Indeed, any delay in his trial
will virtually ensure that Mr. Tasker will die prior to trial.
24. In this same a joint trialof three matters - Plaintiffs who suffered
vein, involving
. .
"friction"
asbestos exposure from both equipment (i.e.,pumps, valves, and boilers) and products
(i.e.,brakes and clutches), in similar occupations, in similar environments, during overlapping
periods, which resulted in the respective plaintiffs developing pleural mesothelioma, would
result in increased efficiency and judicial economy. To be sure, three separate trialson the same
issues would result in a duplication of evidence, increased costs to all parties, and a massive
waste of judicial resources. See In re New York City Asbestos Litig.,
.,188 A.D.2d 214, 225 (Ist
("
Dept. 1993) ("The joint trialformat has the potential to reduce the cost of litigation, make more
economical use of the trial court's time, and speed the disposition of cases"); Konstantin, supra at
suggests"
242 ("statutory language joint trialsare favored for judicial economy and speedy
disposition of cases). Accordingly, Mr. Tasker's health status and judicial economy satisfy an
objective standard of good cause for a joint trial of the instant three matters. So too do the
Malcolm factors weigh in favor of joinder.
25. DISEASE TYPE: All three Plaintiffs have pleural mesothelioma in satisfaction of
the CMO and Malcolm factors 4 and 8. Therefore, not only are the cancer and disease the same,
defendants'
but the general causation testimony elicited from Plaintiffs and expert witnesses will
be similar; the presentation of this evidence once rather than three times will dramatically
increase efficiency and judicial economy. Accordingly, these factors weigh heavily in favor of
consolidation.
26. WORKSITES & OCCUPATIONS: Significantly, all three plaintiffs in this
proposed trial grouping suffered substantial occupational exposures to asbestos in two
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overlapping and comparable ways: first,they all worked with or in the vicinity of equipment
mechanics'
mechamcs'
when asbestos components were replaced; and second, they allperformed work on
vehicles. Consequently, there is substantial overlap in the types of products these three Plaintiffs
were exposed to. To wit, all three plaintiffs were exposed to asbestos from: 1) pumps, valves
and their attendant asbestos components, and 2) brakes and clutches while performing vehicle
repairs.
27. The Plaintiffs anticipate that individual defendants will erroneously argue that
"unique"
they will suffer prejudice because a joint trial would involve products other than those
they manufacture. For example, Mr. Hall suffered asbestos exposure during home renovation
projects. However, he also suffered asbestos exposure from pumps, valves, insulation, packing,
and gaskets, and these products overlap with the exposure suffered by Mr. Tasker and Mr.
"unique-product"
Miller. Thus, even if the Hal_1 case was tried individually, both allegedly and
"typical-product"
evidence will be elicited at trial. As such, there is simply no barrier to
consolidation. See Symphony Fabrics Corp. . v Bernson Silk Mills, Inc., 12 NY2d 409, 413
consolidation"
(1963) (no prejudice where issue will arise "[w]ith or without a consolidation"). Moreover, any
allegedly unique exposures can be placed in the same category as other traditional asbestos
products. The critical inquiry is whether the use of these products created respirable dust, not . .
"unique"
simply whether a plaintiff worked with a particular product. To this end, the
underlying question is one of manipulation and dust release. See Konstantin, supra at 244.
. .
28. In the same vein, when examining the occupation factor, itis axiomatic that title
is not elevated over the quality and type of asbestos exposures suffered by the plaintiffs.
Satisfaction of this factor merely requires a showing that the plaintiffs "were exposed to asbestos
in a similar manner, which was by being in the immediate presence of dust that was released at
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work."
the same time as they were performing their See Konstantin, supra at 244 (emphasis
added).
29. It is submitted that this threshold requirement is satisfied, particularly where there
is substantial commonality in the manner in which these three Plaintiffs were exposed. All three
men worked as, or in the immediate vicinity of, both equipment repairmen and vehicle
mechanics. Yet, while they technically held different job titles, any difference is one of
semantics since all three suffered asbestos exposure from pumps, valves, brakes, and clutches in
the course of their work (i.e.,by removing and replacing asbestos insulation, gaskets, and
packing, as well as from manipulating the friction components of brakes and clutches). See
exposure"
Bernard supra ("a common type of was the critical factor in determining whether a
joint trialis warranted) (emphasis added); Konstantin supra; Peraica supra. Thus, itis submitted
that there is commonality in the occupations and type of worksites of these three Plaintiffs, and .
these factors weighs in favor of consolidation.
Plaintiffs'
. 30. DATES OF EXPOSURE: The overlap of the times of exposure is
extensive. All three Plaintiffs suffered exposure in the 1960s and through at least the 1970s.
While Mr. Hall and Mr. Miller suffered asbestos exposure into the 1980s, that is only slightly
longer. S_e_eKonstantin, supra at 244 (emphasizing the last date of exposure is the crucial date in
determining the overlap in the state-of-the-art evidence). Accordingly, the state-of-the-art
evidence presented in each case will be substantially similar and will be presented by one expert
in one trialrather than the same expert repeating himself in three separate trials,consuming triple
the time.
31. Indeed, since there is substantial overlap between time periods of exposure, the
state-of-the-art testimony concerning the known and knowable hazards associated with asbestos
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in the medical, scientific, technical and mechanical communities considerably overlaps for these
three Plaintiffs. Any potential jury confusion as to time periods of exposure between Plaintiffs
can be mitigated by instructions regarding how the state-of-the-art testimony should be
evaluated, and by the use of jury instruments such as jury notebooks, preliminary instructions,
attorneys'
interim commentary (stage-based summations), juror questions, written copies of
special verdict sheets, and written copies of the Cour
Preview
FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 190012/2017, et al. STACEY LYNN BROWN, as Administratrix of the . . Estate of STEVEN L. HALL, deceased, et al. Hon. Gerald Lebovits Plaintiff, AFFIRMATION IN SUPPORT PLAINTIFFS' MOTION FOR v. TRIALS JOINT A.O. SMITH WATER PRODUCTS, et al., Defendants. Michael Macrides, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following statements to be true under the penalties of perjury: 1. I am an attorney with the law firm Belluck 4 Fox, LLP, attorneys for the ten (10) Plaintiffs listed below whose actions have all been transferred by the Hon. Lucy Billings to this Court for trial pursuant to the New York City Asbestos Litigation Amended Case Management Order's in extremis cluster provisions (hereinafter CMO) (located at www.nycal.net): 1. JOSEPH M. BICOCCHI Index No.: 190351/2016 2. STEVEN L. HALL Index No.: 190012/2017 3. ANNA NOCELLI Index No.: 190365/2016 4. ANTHONY RICHICHI Index No.: 190021/2017 5. ALBERT R. TASKER Index No.: 190111/2017 6. ROBERT W. TURNER Index No.: 190006/2017 7. JOHN HERMANN Index No.: 190253/2016 8. MYRON W. MILLER Index No.: 190257/2016 9. PETER J. ANGLIM Index No.: 190347/2015 10. KATHRYN ASTON Index No.: 160588/2015 2. I am fully familiar with the facts of these ten cases, and I make this affirmation Plaintiffs' pursuant to CPLR § 602(a) in support of motion to join for trialthe three (3) asbestos cases listed below: 1. STEVEN L. HALL Index No.: 190012/2017 2. ALBERT R. TASKER Index No.: 190111/2017 3. MYRON W. MILLER Index No.: 190257/2016 1 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 followed forthwith by a joint trial of the two (2) asbestos cases listed below: 1. ANNA NOCELLI Index No.: 190365/2016 2. KATHRYN ASTON Index No.: 160588/2015 followed forthwith by a joint trial of the two (2) asbestos cases listed below: 1. ANTHONY RICHICHI Index No.: 190021/2017 2. ROBERT W. TURNER Index No.: 190006/2017 followed forthwith by a joint trial of the two (2) asbestos cases listed below: 1. JOHN HERMANN Index No.: 190253/2016 2. PETER J. ANGLIM Index No.: 190347/2015 Or, in the alternative, for a joint trialof the foregoing asbestos cases in a configuration deemed appropriate by this Court. 3. At this time,..we are not to id 3 ill . Joseph Bicocchi matter which seeking was also transferred by Judge Billings as part of Belluck 4 Fox's October 2017 in extremis ' cluster. 4. In this regard, we anticipate that the defendants will categorically object to a joint trialof composition - an approach that conflicts with the the and any CPLR, CMO, controlling appellate authority, and which would invariably result in an extraordinary injustice to the parties, including defendants. S_ee CPLR 602; CMO at § XXV; Peraica v. A.O. Smith Water Prod. Co., 143 AD3d 448, 451 43 Dept. 2016), appeal dismissed, 28 ..Ed .. N.Y.3d 3367426177; In re 74 York City Asbestos Litigation [Konstantin/Dummitt], 121 AD3d 230 (1st Dept 2014), aff'd 27 NY3d 1172 (2016). 5. Importantly, the newly implemented CMO restricts joint trials to only two or at most three matters (provided the plaintiffs satisfy certain conditions. S_e_eCMO at § XXV. These I Plaintiff thatthe Bicocchi matter be subsequent does, however, request assigned a trialdate to theconclusion of the suggested trialgroups outlined herein. 2 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 implemented provisions limit what was routinely permitted under the caselaw. S_e_e newly Peraica, supra (joinder of eight asbestos matters for trialappropriate); Konstantin, supra (joinder of seven asbestos matters for trial appropriate); Matter of New York City Asbestos Litigation [Bernard), 99 AD3d 410, 411 (1st Dept 20123 ("IAS court providently exercised its discretion in consolidating these actions for joint trial,as they involve common questions of law and fact."); In re New York City Asbestos Litig., .,111 AD3d 574 (1st Dept, 2013) (joint trials involving appropriate).2 different diseases are 6. Consequently, itis respectfully submitted that joinder under the CMO should be liberally granted, particularly where the plaintiffs in these proposed groupings share numerous commonalities of fact and law, and defendants will not suffer any prejudice to a substantial right. See, ea, Altuchoff v A.O. Smith (annexed hereto as Exhibit "A") (seven cases joined for trial); Assenzio v A.O. Smith (annexed in relevant pages as Exhibit "B"). 7. The Plaintiffs stress that seriatim trials will severely prejudice the Plaintiffs, and will result in unnecessary duplication of evidence, experts, and issues, as well as waste precious judicial resources. See, ea, D'Esposito v Bird Incorporated, et al. (see Exhibit C annexed at 1) the preference for joint trials in the "interest of judicial and ease of decision- (noting economy making" as balanced against the respective rights of the parties). 8. It issubmitted that, here, a joint trialof the H_all,Tasker, and Miller actions is warranted, followed by a joint trialof the Nocelli and Aston actions, followed by a joint trial of the Richichi and Turner, followed by a joint trial of the Hermann and Anglim actions. 2 For Department in example, the First Peraica sanctioned the nisiprius Court's decision to joinfor triala living insulator(Ivo Peraica), a carpenter(Murray Blonder), a deceased printer(John Dellaratta),a fireproofing laborer (Antonio Perez),a Naval fireman & boilertender (Roberto Roman), a plumber/mechanic (Frank Rugnetta), a deceased carpenter (Raymond Sabo), and a transit authority worker (George Santiago). See In re New York City . Asbestos Liti ation, 2012 WL 3276720 (Sup, Ct.,NY Cty.,August 7,2012). 3 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 FACTUAL BACKGROUND 9. To facilitate this Court's determination regarding joining these matters for trial, . "D" the Plaintiffs have created two charts. Annexed hereto as Exhibit is a chart detailing "E" general characteristics of each Plaintiff in this cluster. Annexed hereto as Exhibit is a chart detailing the similarities in the products of exposure among the Plaintiffs in this cluster. The pertinent facts of each case are as follows: 10. Steven L. Hall died at the age of 69 as a result of mesothelioma (see Exhibit F annexed in relevant pages - deposition excerpts). Mr. Hall worked at & Smith Discovery Binney man," in the 1970s as a "pump and valve and he was exposed to the asbestos insulation, gasket, and packing components of those products (see, ea, Exh F at 207, 229-34, 238, 242-43, 292, 297-98, 305-10). While working for Westinghouse at various powerhouses beginning in 1980, Mr. Hall was further exposed to asbestos from repair work on pumps, valves, and turbines performed in his vicinity (see, ea, Exh F at 361-62, 378-86, 393, 396-97, 409, 420). He was additionally exposed to asbestos while performing brake and clutch jobs at a service station and as side work (see, ea, Exh F at 106-09, 112-18, 123-26, 136-54, 160-61, 167-68, 173-76). Mr. Hall also ran a small side construction business where he was exposed to asbestos from sanding joint compound, scraping caulk, and cutting vinyl asbestos floor tiles during their installation in 870).3 the 1960s and 1970s (Exh F at 90-92, 95-98, 100-04, 870). 11. Albert R. Tasker is currently 69 years old and is living with mesothelioma (see Exhibit G annexed in relevant pages - Videotaped de bene esse deposition excerpts). Mr. Tasker was exposed to asbestos while working as a mechanic in three ways: first, while performing 3 Mr. Hall sufferedadditional asbestos exposure the course ofpersonal home renovation products while during using the same construction products - joint i.e., compound, caulk,and vinylasbestos floortiles(Exh F at 49-52, 55-58, 99-l 00). 4 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 automotive brake and clutch jobs for people in his neighborhood in the 1960s (Exh 6 at 33-39); second, as a mechanic's assistant at a marina, which involved scraping asbestos gaskets off of marine engines and cleaning up his workspaces (Exh 6 at 39-45); and third, while serving in the United States Navy from 1967 through 1971 as an aircraft mechanic, during which he worked on engines (Exh 6 at 50-52). Mr. Tasker was further exposed to asbestos during his Naval service from insulation-covered pumps, valves, and turbines in the boiler and engine rooms of the USS DeLong's (DE-684) (Exh 6 at 46-49). 12. Myron William Miller died at the age of 78 as a result of mesothelioma. Mr. Miller died prior to being deposed, but his wife and coworker Deborah testified on his behalf (see Exhibit H annexed in relevant pages - deposition excerpts). Mr. Miller started his Discovery - Corporation" - 51- own business "Steel Master Material Handling in the late-1960s (Exh H at 52, 56-57). His business entailed going to factories, mills, foundries, and plants that were liquidating their assets and purchasing equipment to refurbish and sell (Exh H at 63-65, 69, 72, "main" 383). A part of his business was mechanical work related to refurbishing forklifts, and Mr. Miller was exposed to asbestos from the company inception through the 1980s from brake and clutch jobs on this equipment (Exh H at 63, 73-74, 76-84, 384-85). Steel Master Material Handling Corporation also regularly purchased used pumps and valves, and Mr. Miller was further exposed to asbestos during the same period when he replaced their packing and gaskets before reselling them (Exh H at 84-92, 233, 355-56, 379-81). 13. Anna Nocelli is currently 66 years old and is living with mesothelioma (see Exhibits I-K annexed in relevant pages). Mrs. Nocelli's husband was a union carpenter from 1974 through 2006 (Exh I at 66-69; Exh 9 at 25-28; Exh K at 28, 33), and he also performed side construction work finishing residential basements (Exh J at 111-14). From around 1974 to 1980, 5 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 her husband Guido would arrive home each night after work covered in dust from his construction work (Exh I at 71-72; Exh K at 29-30). Mr. Nocelli's clothing was dusty from the sanding of joint compound and cutting of fire doors (see, e_&, Exh J at 37, 39-41, 49, 51, 57, 70, 79, 118, 122, 142-45, 148-50, 220). Mrs. Nocelli was exposed to asbestos-laden dust from her husband's contaminated work clothing when she shook itout and handled it while doing his laundry (Exh I at 71-75, 78-80; Exh J at 139-42; Exh K at 33-36), as well as from hugging him when he returned home from work (Exh K at 30-31). 14. Katheryn Aston is currently 77 years old and is living with mesothelioma (see Exhibits L-M annexed in relevant pages). Mrs. Aston's husband John was a carpenter when she met him in and he continued in this vocation until he retired - which included work both 1962, work" on union jobs and while performing "side to make extra money (Exh L at72-73; Exh M at "dusty" 25, 83-85). Her husband regularly returned home from work with clothing (Exh L at 76, 162-64). Mr. Aston's clothing was covered with asbestos-laden dust from working with and in the vicinity of others using joint compound, fire doors, roofing materials, ceiling tiles, and floor tiles (see, e_&, Exh M at 33-34, 95-96, 99-103, 117-18, 123-24, 127, 130-31, 145-48, 157-59, 542-48). Mrs. Aston was exposed to asbestos several times each week from shaking out her husband's contaminated work and them for (Exh L at 162- clothing handling laundering 77-78, 64).4 15. Anthony Richichi is currently 73 years old and is living with mesothelioma (see Exhibit N annexed in relevant pages - deposition excerpts). Mr. Richichi served in the Discovery United States Navy for four years from 1961 through 1965 aboard the USS Robert L. Wilson (DD-847) and USS Waller (DD-466) (Exh N at 31, 33, 51). He was exposed to asbestos on the 4 Mrs. Aston was furtherexposed to jointcompound during a home renovation project when she swept up afterher . husband's work (Exh M at 48-50). 6 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 USS Waller when the forced air system blew contaminated dust from the machinery spaces into his workstation (Exh N at 70-73, 145). His shipmate Richard Bright, who also testified on his behalf, stated that the dust that wafted into Mr. Richichi's work area came from maintenance and repair work on the ship's valves and pumps, which utilized asbestos-containing gaskets, packing, and insulation (see Exhibit O annexed in relevant pages at 10-11, 16-18, 23, 28-29, 35-43, 61-64, 73-74 - Shipmate deposition excerpts). Mr. Richichi was further exposed to asbestos in 67-68, shacks" the "torpedo of his ships, which were covered with asbestos insulation (Exh N at 59-63, 69-71). The plaintiff was additionally exposed to asbestos from personal home renovation projects and side construction work using joint compound (see, e_.ye,Exh N at 36-38, 125-28, 135-37). 16. Robert W. Turner died at the age of 80 as a result of mesothelioma (see Exhibit P annexed in relevant pages - deposition excerpts). Mr. Turner served in the United Discovery States Navy for three years between 1954 and 1957, and he was stationed on the USS Wisconsin (BB-64) during the majority of his Naval service (Exh P at38, 44). He served as a fireman, machinist's mate, and petty officer in Boiler Room Number 1 on that ship (Exh P at 44-46, 49, 60). Therein, Mr. Turner was exposed to asbestos from performing maintenance and repair work on the ship's pumps and valves, which involved changing their packing, gaskets, and insulation (Exh P at 60-61, 65-86, 244-47). He was further exposed to asbestos when his shipmates . performed similar work on pumps and valves in his presence (Exh P at 89-90). Mr. Turner suffered additional asbestos exposure on the USS Wisconsin when the ship was overhauled while in which involved repairs on the ships and boilers (Exh P at 149- dry dock, pumps, valves, 53). 7 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 17. John Hermann is currently 80 years old and is living with asbestos-related lung cancer (see Exhibit annexed in relevant pages - Videotaped de bene esse deposition excerpts). Q Mr. Hermann served for four years in the United States Navy from 1956 through 1960 (Exh Q at stationed aboard two aircraft carriers - the USS Antietam and USS 25-26). He was (CV-36) Ranger - that period (Exh at 27-29). While as a fireman and (CV-61) during Q working ships' electrician's mate in the machinery and auxiliary spaces, Mr. Hermann was exposed to asbestos from pumps, valves, boilers, turbines, condensers, and evaporators when he and his shipmates disturbed replaced and scraped off gaskets (Exh at 34- insulation, packing, Q 29-30, 37, 39-106). Mr. Hermann suffered additional asbestos exposure from home renovation projects involving joint compound (Exh Q at 116-26), as well as from his home boiler that was covered in deteriorating insulation (Exh Q at 111-16). 18. Peter J. Anglim died at the age of 81 as a result of asbestos-related lung cancer Exhibit R annexed in relevant pages - deposition excerpts). Mr. Anglim was a Discovery New York City firefighter for more than 30 years between 1963 and 1995 (Exh R at 142). In the course of his duties as a firefighter, Mr. Anglim was exposed to asbestos from disturbing boiler insulation while extinguishing fires and performing boiler inspections (Exh R 187-97, 210-17). He was also exposed to asbestos from his home boiler that was covered in deteriorating insulation (Exh R at 61, 69). Mr. Anglim suffered further asbestos exposure from home renovation projects involving joint compound (Exh R at 81-83, 108-12). He also worked at his brother's sewage construction business, and he was exposed to asbestos from the installation and cutting of transite pipe (Exh R at 236, 241-42, 249, 255-S8), 8 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 L JOINT TRIALS OF THE FOREGOING PLAINTIFFS IN THE SUGGESTED CONFIGURATIONS ARE WARRANTED SINCE SUFFICIENT COMMON QUESTIONS OF LAW AND FACT EXIST . 19. In determining consolidation, New York courts have generally adopted the suggested eight-part test set forth by the Second Circuit Court of Appeals in Malcolm v National Gypsum Co. (995 F2d 346 (2d Cir 1993)). The factors to be liberally considered include (1) common worksite, (2) similar occupation, (3) similar time of exposure, (4) type of disease, (5) whether Plaintiffs are living or deceased, (6) status of discovery in each case, (7) whether all Plaintiffs are represented by the same counsel, and (8) type of cancer alleged. Id. at 351-52. 20. While the CMO explicitly limited the number of NYCAL matters that may be joined for trial,itpreserved the balancing test by which joinder is evaluated in asbestos: Two cases may be joined for trial where plaintiff demonstrates that joinder is warranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York State cases interpreting Malcolm. Malcolm and itsprogeny list factors to measure whether cases should be joined; itis not necessary under Malcom that all such factors be present to warrant joinder. Upon good cause shown, a Trial Judge in NYCAL may join a maximum of three cases for trialwhere itdetermines that 1) joinder is warranted under three or more of the factors described in Malcolm and New York State cases interpreting . Malcolm, and 2) where the three plaintiffs share the same disease. disease" For purposes of this section "same shall mean that allthe plaintiffs in the . three cases proposed to be joined for trial share one of the following four categories of disease [including]... pleural mesothelioma... (b).5 See CMO § XXV Consequently, prior New York decisions interpreting the scope and import of the Malcolm factors are stillcontrolling. Se_e, ea, Matter of New York City Asbestos Litigation[Bernard), 99 AD3d 410, 411 (1st 092013223 all of the factors need 9 present; 5 PlaintiffsanticipatethatDefendants willraisebaseless arguments based on purported constitutional violationsin opposition to theinstant motion, or argue thatjoinder is never warranted in asbestos actions. Itis telling, however, that thesearguments were soundly rejected earlierthismonth by the FirstDepartment. See In re New York City A~sbestos Litt ., AD3d, 2018 ttfL 1414125 (1stDept Msr. 22, 2018). 9 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 consolidation is appropriate so long as 'individual issues do not predominate over the common questions of law and fact'."); accord Konstantin supra at 242. 21. Indeed, the test has never been strictly limited to the eight Malcolm factors, since "suggested" they are not the sole considerations. The factors are simply and are merely a guideline. See e_.g.,Altholz et al.v American Standard, Inc., 11 Mise 3d 1063(A) (Sup Ct NY Co 2006) (Shulman, J.). And no one Malcolm factor is more important than another. The test is a flexible one, which focuses on balancing rather than absolute satisfaction of any single factor(s). See Malcolm, supra at 351. A rigid interpretation of any of these factors is contrary to the CMO and the Malcolm Court. A. The Hall, Tasker, and Miller Matters Should be Joined for Trial 22, It issubmitted that the Hall, Tasker, and Miller Plaintiffs should be joined for trial cause" as their matters share substantial commonality of fact and law, and there is "good for joinder. 23. GOOD CAUSE: At the outset, in addition to substantial common factual and legal issues that underpin these matters, including a common disease as discussed infra, itis cause" submitted that "good exists to warrant a joint trial of the three aforementioned cases. In Mr. Tasker is a plaintiff from mesothelioma - an particular, living suffering invariably excruciating and ultimately fatal cancer that is characteristically terminal within a short period. Seee, ea, Norfolk & W. Ry. . Co. v. Ayers, 538 U.S. 135, 168 (2003) dissent ("death is almost certain within a short time from the onset of mesothelioma"). It isrespectfully submitted that Mr. Tasker's prognosis alone establishes good cause, as a joint trialassists in maintaining the spiritof the CMO and CPLR's accelerated trialprovisions, such that he may have a chance to live to see 10 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 his day in Court. S_ee CMO at XV; CPLR §§ 3403 (a)(6) and 3407. Indeed, any delay in his trial will virtually ensure that Mr. Tasker will die prior to trial. 24. In this same a joint trialof three matters - Plaintiffs who suffered vein, involving . . "friction" asbestos exposure from both equipment (i.e.,pumps, valves, and boilers) and products (i.e.,brakes and clutches), in similar occupations, in similar environments, during overlapping periods, which resulted in the respective plaintiffs developing pleural mesothelioma, would result in increased efficiency and judicial economy. To be sure, three separate trialson the same issues would result in a duplication of evidence, increased costs to all parties, and a massive waste of judicial resources. See In re New York City Asbestos Litig., .,188 A.D.2d 214, 225 (Ist (" Dept. 1993) ("The joint trialformat has the potential to reduce the cost of litigation, make more economical use of the trial court's time, and speed the disposition of cases"); Konstantin, supra at suggests" 242 ("statutory language joint trialsare favored for judicial economy and speedy disposition of cases). Accordingly, Mr. Tasker's health status and judicial economy satisfy an objective standard of good cause for a joint trial of the instant three matters. So too do the Malcolm factors weigh in favor of joinder. 25. DISEASE TYPE: All three Plaintiffs have pleural mesothelioma in satisfaction of the CMO and Malcolm factors 4 and 8. Therefore, not only are the cancer and disease the same, defendants' but the general causation testimony elicited from Plaintiffs and expert witnesses will be similar; the presentation of this evidence once rather than three times will dramatically increase efficiency and judicial economy. Accordingly, these factors weigh heavily in favor of consolidation. 26. WORKSITES & OCCUPATIONS: Significantly, all three plaintiffs in this proposed trial grouping suffered substantial occupational exposures to asbestos in two 11 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 overlapping and comparable ways: first,they all worked with or in the vicinity of equipment mechanics' mechamcs' when asbestos components were replaced; and second, they allperformed work on vehicles. Consequently, there is substantial overlap in the types of products these three Plaintiffs were exposed to. To wit, all three plaintiffs were exposed to asbestos from: 1) pumps, valves and their attendant asbestos components, and 2) brakes and clutches while performing vehicle repairs. 27. The Plaintiffs anticipate that individual defendants will erroneously argue that "unique" they will suffer prejudice because a joint trial would involve products other than those they manufacture. For example, Mr. Hall suffered asbestos exposure during home renovation projects. However, he also suffered asbestos exposure from pumps, valves, insulation, packing, and gaskets, and these products overlap with the exposure suffered by Mr. Tasker and Mr. "unique-product" Miller. Thus, even if the Hal_1 case was tried individually, both allegedly and "typical-product" evidence will be elicited at trial. As such, there is simply no barrier to consolidation. See Symphony Fabrics Corp. . v Bernson Silk Mills, Inc., 12 NY2d 409, 413 consolidation" (1963) (no prejudice where issue will arise "[w]ith or without a consolidation"). Moreover, any allegedly unique exposures can be placed in the same category as other traditional asbestos products. The critical inquiry is whether the use of these products created respirable dust, not . . "unique" simply whether a plaintiff worked with a particular product. To this end, the underlying question is one of manipulation and dust release. See Konstantin, supra at 244. . . 28. In the same vein, when examining the occupation factor, itis axiomatic that title is not elevated over the quality and type of asbestos exposures suffered by the plaintiffs. Satisfaction of this factor merely requires a showing that the plaintiffs "were exposed to asbestos in a similar manner, which was by being in the immediate presence of dust that was released at 12 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 work." the same time as they were performing their See Konstantin, supra at 244 (emphasis added). 29. It is submitted that this threshold requirement is satisfied, particularly where there is substantial commonality in the manner in which these three Plaintiffs were exposed. All three men worked as, or in the immediate vicinity of, both equipment repairmen and vehicle mechanics. Yet, while they technically held different job titles, any difference is one of semantics since all three suffered asbestos exposure from pumps, valves, brakes, and clutches in the course of their work (i.e.,by removing and replacing asbestos insulation, gaskets, and packing, as well as from manipulating the friction components of brakes and clutches). See exposure" Bernard supra ("a common type of was the critical factor in determining whether a joint trialis warranted) (emphasis added); Konstantin supra; Peraica supra. Thus, itis submitted that there is commonality in the occupations and type of worksites of these three Plaintiffs, and . these factors weighs in favor of consolidation. Plaintiffs' . 30. DATES OF EXPOSURE: The overlap of the times of exposure is extensive. All three Plaintiffs suffered exposure in the 1960s and through at least the 1970s. While Mr. Hall and Mr. Miller suffered asbestos exposure into the 1980s, that is only slightly longer. S_e_eKonstantin, supra at 244 (emphasizing the last date of exposure is the crucial date in determining the overlap in the state-of-the-art evidence). Accordingly, the state-of-the-art evidence presented in each case will be substantially similar and will be presented by one expert in one trialrather than the same expert repeating himself in three separate trials,consuming triple the time. 31. Indeed, since there is substantial overlap between time periods of exposure, the state-of-the-art testimony concerning the known and knowable hazards associated with asbestos 13 of 24 FILED: NEW YORK COUNTY CLERK 04/02/2018 02:17 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 04/02/2018 in the medical, scientific, technical and mechanical communities considerably overlaps for these three Plaintiffs. Any potential jury confusion as to time periods of exposure between Plaintiffs can be mitigated by instructions regarding how the state-of-the-art testimony should be evaluated, and by the use of jury instruments such as jury notebooks, preliminary instructions, attorneys' interim commentary (stage-based summations), juror questions, written copies of special verdict sheets, and written copies of the Cour