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.
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FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X STACEY LYNN BROWN, as Administratrix of the Part 13 Estate of STEVEN L. HALL, deceased, et al., Plaintiff ' (Mendez, J.) v. A.O. SMITH WATER PRODUCTS, et al., Index No. 190012/2017, et Defendants. al. X MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION FOR A JOINT TRIAL I. Introduction Leader Berkon Colao & Silverstein LLP counsel for defendant Imo Industries, Inc., on behalf of all parties remaining a defendant in each case, hereby submits the instant plaintiffs' opposition to application for a joint trialmade by Order to Show Cause on April 2, groups.1 2018. Plaintiffs have divided 10 cases into 4 proposed groups. None of plaintiff's proposed groupings have sufficient commonality to indicate that joinder would promote any judicial economy. As will be demonstrated herein, plaintiffs failin their burden to demonstrate that the requested trial groups promote judicial economy within the bounds of due process for all parties. 1 Plaintiffs' decision seek consolidation of Anglim Plaintiffs to theHall, Nocelli,Richichi, Tasker, Turner, Hermann, Miller, and Aston cases representsa voluntary dismissal ofitspunitive damages claims in those actions pursuant toCase Management Order § XXV(c). 1 1 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 Facts2 H. Plaintiff's proposed groups are (i)Hall, Tasker, Miller; (ii)Nocelli, Aston; (iii) Richichi, Turner; and (iv) Hermann, Anglim. Steven Hall (Proposed Group 1) Mr. Hall passed away at age 69 in San Antonio, Texas from mesothelioma. He was exposed to asbestos working in Kansas for the majority of his career at a company that manufactured crayons & Smith - and did field service work for (Binney 1969-80), eventually Westinghouse (1980-2003) at power plants around the country (including three facilities in New York). He never resided in New York State, and itis not clear how much time he actually spent working in New York or when he performed that work after 1980. He was diagnosed with mesothelioma in Kansas. Albert Tasker (Proposed Group 1) Mr. Tasker is a 69-year-old former US Navy Aviation mechanic who testified to exposure from with jet engines at an Air Force Base in Maryland in the mid- working primarily late 1960's. He did spend two weeks as a Naval Reservist on the USS DeLong where he believes he saw someone repack a pump. He also alleged exposure to asbestos from gaskets associated with diesel marine engines in Island Park, New York. Tasker was diagnosed with mesothelioma in Florida, where he has resided since 1997. Myron Miller (Proposed Group 1) Mr. Miller passed away from mesothelioma in Florida in September of 2016 at the age of 78. His wife testified that he was exposed to asbestos in a warehouse he owned in 2 For Plaintiffs' purposes of brevity,Defendants adopt the Facts presented inthe Affirmation in Support of Motion ("Plaintiffs' forJoint Trial Aff."),pp 4-8, and provide only supplemental information herein. 2 2 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 Marietta, Georgia in the 1980's where he resold various things from liquidating companies. He was diagnosed with mesothelioma in Florida. Anna Nocelli (Proposed Group 2) Ms. Nocelli is a who was married to a union carpenter from 1974- 66-year-old, 2006 who has been diagnosed with mesothelioma. Her husband purportedly brought home dusty clothes to be laundered after working with firedoors and joint compound. Ms. Nocelli is a resident of Staten Island. Kathryn Aston (Proposed Group 2) Ms. Aston is a 77-year-old, who was married to a carpenter from the early 1960's, who has been diagnosed with mesothelioma. Her husband purportedly brought home dusty clothes to be laundered after working with construction materials. Ms. Aston is a lifelong resident of New Jersey and was diagnosed in New Jersey. Anthony Richichi (Proposed Group 3) Mr. Richichi is a 73-year-old former US Navy torpedo man suffering from mesothelioma. He served on two ships between 1961-65. From Mr. Richichi's testimony, itis unclear how he was exposed to asbestos beyond insulation. A co-worker (Mr. Bright) testified that he believed that air from the engineering spaces containing asbestos fibers somehow emanating from pumps and valves travelled throughout the ship and caused Mr. Richichi to be exposed to asbestos. Bright was a Machinist Mate on the USS Waller, not an industrial hygienist, meaning that his testimony is unfounded speculation about a scientific theory (fiber drift) that is unrecognized by the Courts of New York. Richichi is a resident of New Jersey, where he was diagnosed with mesothelioma. 3 3 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 Robert Turner (Proposed Group 3) Mr. Turner passed away from mesothelioma in Louisiana at the age of 80. He was a US Navy Fireman/Machinist Mate on the battleship USS Wisconsin between 1954-57. Turner was a lifelong resident of Lousiana, and was diagnosed with mesothelioma in Louisiana. John Hermann (Proposed Group 4) Mr. Hermann is an 80-year-old, former US Navy Fireman/Electrician who served aboard two air craft carriers between 1956-60. He is suffering from lung cancer. Plaintiff is a resident of New York, who was diagnosed with lung cancer in New York. Mr. Herman smoked cigarettes from 1953-90. Peter Anglim (Proposed Group 4) Mr. Anglim passed away from lung cancer in New York at the age of 81. Anglim worked as a Septic Engineer in the 1950's and 60's, and later as a Firefighter between 1963-95. Mr. Anglim smoked cigarettes from 1959-97. IIL Argument I. PLAINTIFFS HAVE FAILED TO CARRY THE BURDEN OF DEMONSTRATING THAT ANY OF THE PROPOSED GROUPS PROMOTE JUDICIAL ECONOMY3 In seeking to have cases joined for trial, plaintiffs have the initial burden in economy.4 demonstrating that the joinder would result in judicial economy. See Bischofsberger v AO 3 At it of given lack of a remaining listfrom this time is premature to argue choice law the defendants B&F regarding these cases, however, itshould be noted that none of the proposed groupings are solely New York residents alleging exposures to asbestos in New York. Many of these plaintiffs were lifelong residents of other jurisdictions, and were diagnosed in those jurisdictions. Per the decision in Tedrick "What is legally significant in the choice of law context when applying the third Neumeier rule is that Tedrick's place of injury was in Oregon where she was domiciled and where her disease process began ... " . See Tedrick v Colgate-Palmolive, 91 NYS 2d 466, 474. Given that consideration, Group 1 could have Kansas and Florida law, Group 2 New York and New Jersey law, Group 3 New Jersey and Lousiana law. 4 4 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 Smith Water Products, Decision and Order of Judge Gische, dated September 9, 2012, annexed to the Affirmation of David J. Goodearl, Esq., dated May 9, 2018 ("Goodearl Aff."), as Exh A. The Case Management Order § XXV(B) allows for the joinder of two cases for trial. Further, upon good cause shown by plaintiffs, a Judge may join three cases provided each plaintiff has the same disease, and three other of the Malcolm factors are satisfied. Plaintiffs' failure to demonstrate any concrete judicial economy requires that its motion must fail. Plaintiffs pay lip service to the notion of judicial economy, however offer nothing by way of specifies of overlapping witness testimony, overlapping trial exhibits, or overlapping transcript read-ins. To the extent the 10 cases in the instant group are, in fact, trial ready, Plaintiffs should be able to provide specific details as to how the cases will proceed and where efficiencies are located. Instead of proffering examples of specifies to show where efficiencies might be gained in any of the 4 suggested joinders, plaintiffs proceed to analyze each of itsproposed groupings under certain of the Malcolm factors in the most general terms. As demonstrated below, assuming arguendo that Plaintiffs do not have to actually demonstrate how judicial economy would be achieved through specific information, Plaintiffs have stillfailed to carry the burden of demonstrating any efficiency to be gained by the proposed joint trial groupings through an analysis of the Malcolm factors. 4 Inorder a balance between judicial to strike perceived economy and constitutionally mandated fairness to defendants, New York courts have developed an eight factor balancing test,as described in Malcolm v. National Gypsum, 955 F.2d 346 (2d Cir. 1993), to determine whether a particular group of cases have sufficient commonality that they may be consolidated for trialwithout upsetting that delicate balance. Those factors, in no particular order, are as follows: (i) common attorney representing plaintiffs; (ii)common alleged disease; (iii)status of discovery; (iv)common occupation of plaintiffs;(v) common exposure period of plaintiffs; (vi)common work site of plaintiffs;(vii)common defendants in each case; (viii)whether plaintiffsare living or deceased. See Malcolm, 995 F.2d at 350. 5 5 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 II. WEIGHING THE MALCOLMFACTORS MILITATES AGAINST JOINDER IN THE INSTANT CASES A considered reading of Malcolm, and a balancing of the factors adopted therein, compels a decision denying Plaintiffs motion. Malcolm is concerned with the intersection of judicial economy and prejudice to all parties when joining cases for trial. Looking back on Malcolm, itis a decision that to a large degree is concerned with a problem that no longer exists. In the 1990's, the impact of the 1986 tort reform reviving asbestos cases had started to create serious problems for New York state and federal courts. Malcolm was concerned with the 200,000 existing asbestos claims, as well as, the prospect of 250,000 more claims to be filed. See Malcolm 955 F.2d at 347. Given that the number of cases pending in NYCAL has dropped dramatically in the ensuing 30 years, the policy rationale behind efficiency is not as strong as it once was. a. Plaintiffs Lack any Common Exposure Sites Plaintiffs take the position that the category of jobsites under the Malcolm test takes into consideration the of the types of jobsites - commercial similarity i.e., buildings, powerhouses, ships, etc., without reference to a specific location. That position, however, is as odds with the actual language of the Malcolm decision, as well as the underlying spiritof the decision. The distinction between Malcolm and the Brooklyn Navy Yard cases is illuminating on this very issue: The Brooklyn Navy Yard was owned and operated for the entire relevant time period by one entity, the United States government. Because uniformity is a way of life with the military, the commonality of the 64 Phase I cases cannot be overstated. Presumably, asbestos-containing products were purchased by government contract from the same manufacturers and distributors. Determining the identities of those parties at a particular time was a relatively simple endeavor. Thus, the goal of efficiency was attained. Because the yard was used exclusively to build naval warships, and because such ships were regularly produced pursuant to uniform practices, the overlap in testimony relevant to the cases was obvious. 6 6 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 Malcolm, 995 F.2d at 353. None of the efficiencies related to a single work site consolidation, noted above by the Malcolm Court, is present in the groups of cases for which plaintiffs seek consolidation here. The plaintiffs in these actions were working at either different commercial locations for different contractors and general contractors, different powerhouses during different time periods, or in the Brooklyn Navy Yard itself. The testimony describing the different sites, and the practices on the different sites would not overlap by either subject or witness. There would be littleefficiency gained through putting these cases together as compared with the Brooklyn Navy Yard consolidation. Here, the proposed consolidations must fail for the same reason. None of the proposed groups contain even a single common worksite. Plaintiffs argue that the Group 1 proposed cases have common worksites because all three Plaintiffs were exposed near equipment. Of course, one was in a crayon factory in Kansas (Hall), another in a warehouse he owned in and the third at an air field (Tasker). The 2 Plaintiffs both allege take- Georgia, Group home exposures, however, there is no argument relating to similarity of the locations where Nocella and Aston were exposed. The Group 3 Plaintiffs were both on Navy ships, however, the types of ships were entirely different (destroyer v. battleship) and there is simply no creditable testimony that Richichi was exposed to any asbestos other than from insulation on piping, and they served in different portions of the ships. The Group 4 Plaintiffs purported worksite commonality is that both were exposed to dust. Plaintiffs have failed to give any particulars about how these purported commonalities create any common evidence. As such, the lack of commonality among the various worksites militates against joining the proposed groups. 7 7 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 b. Plaintiffs Lack A Common Occupation Plaintiffs' lack of commonality as to occupation implicates significant divergences in the proofs that would be necessary to defend each of these cases. As noted in occupation." Malcolm "a worker's exposure to asbestos must depend mainly on his Malcolm, Plaintiffs' 995 F.2d at 351. Plaintiffs occupations in the 4 proposed groups are insufficient to support joinder, and weigh against joining the proposed groups. plaintiffs' The lack of commonality among occupations demonstrates the differences among these plaintiffs as to exposure type (bystander or direct), and exposure to different products (including different fiber types). The developing knowledge regarding the hazards of asbestos over time as to different occupations and products would be confusing enough to follow for one case, but requiring a jury to follow state of the art evidence for different time periods, in different cases involving different worksites and different products is Defendants' fundamentally unfair. proof at trial requires jurors to make difficult and confusing distinctions when evaluating state of the art testimony. There will be serious prejudice to defendants as a result of the aggregation of dissimilar evidence and seemingly inconsistent themes introduced at trialthrough a state of the art presentation that is forced to deal with the studies relating to different occupations over different time periods. The various proposed groups contain the occupations - following Group 1 - Hall (Crayon factory worker), Tasker (Aviation Mechanic), Miller (salesman) 2 - Nocella Aston Group (Housewife), (Housewife) 3 - Richichi (Torpedo Turner Group Man), (Machinist) 4 - Hermann Anglim (sewer Group (Electrician), worker/firefighter) 8 8 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 The proposed groups have between Nocella and Aston because of the take- only overlap home exposure allegations. The rest of the plaintiffs and groupings have no overlap. Additionally, different occupations began to be studied to determine the potential occupational hazards vis-à -vis asbestos during different time periods. Given the decision in Juni (1st v Ford, 148 A.D.3d 233 Dept. 2017), the importance of epidemiology across occupations must be recognized. The lack of common occupations will cause irrelevant epidemiological information to be introduced should these cases be tried together. The lack of common occupations militates against joinder of these proposed groups. c. Plaintiffs Lack Commonality of Exposure Periods Different exposure periods implicate different state of the art,and standards of conduct for defendants. Further, disparate length of exposure periods can cause prejudice as noted by Malcolm. Group 1 - Hall (1969-2003), Tasker (1966-72), Miller (1980's) 2 - Nocella Aston Group (1974-80), (1962-1995) 3 - Richichi Turner Group (1961-65), (1954-57) 4 - Hermann Anglim Group (1956-60), (1950's-93) In Group 1, Tasker's exposures were over Miller's even started. Additionally, Hall's testimony post-1980 is confused and does not coherently state any claim of exposure. In Group 3, there is no overlap in the time periods. In Group 4, the time period overlap is de minimis, and the Anglim exposures continue along for another 30-plus years. Given the lack of commonality across the proposed groups, a balancing of the Malcolm factors weighs in favor of individual trials for these cases. 9 9 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 III. JOINT TRIALS FAIL TO DELIVER ON THE STATED PURPOSE OF JUDICIAL ECONOMY The Second Circuit has explicitly held that the moving party bears the burden to show a joint trial is warranted: the burden is on the party seeking aggregation to show common issues of law or fact; the burden is not on the party opposing aggregation to show divergences. This is so even in the case of the so-called mass tort, where a shifting of this burden is likely to prophecy." render the label mass tort into a self-fulfilling In re Repetitive Stress Injury Litig., 11 F.3d 368 (2d Cir. 1993). Plaintiffs also have the burden of that a joint trialwould not result in confusion. Dashnaw v. No. 1:05-CV- showing See, Usen, plaintiffs' 1592 (GLS/RFT), 2006 WL 1742174 (N.D.N.Y. June 21, 2006), at *2. Thus, it is delay." burden to show that joint trials"avoid unnecessary costs or See, CPLR 602(a). The objective of a joint trialis to "effect a saving in time, trouble and expense to public." the parties and the Pigott v Field, 10 A.D.2d 99, 101 (1st Dep't 1960). Appellate Division, First Department Associate Justice Paul G. Feinman noted that the principal considerations justifying joinder are efficiency and the conservation of judicial resources. See, Adler v. Air & Liquid Sys. Corp. (In re NYCAL), No. 190181/2011, at 13 (Sup. Ct. N.Y. County, Aug. 7, 2012) (See Goodearl Aff., Exh. B). As has been seen many times in New York County, the joint trial of multiple plaintiffs' asbestos cases leads to inefficient use of time, and to the extent that any judicial defendants' economy is realized itis insufficient to overcome the prejudice to rights to due process. Multiple plaintiff trials cause overlong jury selection processes, putting stress on the Court system rather than creating efficiency. As demonstrated in Figure 1, consolidated trials generally take significantly longer to try to verdict and result in absurd and unsustainable 10 10 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 verdicts.5 verdicts. The resulting verdicts require significant post-trial motion and appellate practice, further eroding any judicial economy gained by shoehorning various disparate cases together. C_ase Number Of Cases Length Of Trial Result Originally Consolidated Snowdale Two (2) Five (5) Weeks $2M McGlynn One (1) Four (4) Weeks $3.3M Evans One (1) Three (3) Weeks Defense Verdict Anisansel One (1) Four (4) Weeks $20M Battistoni One (1) Five (5) Weeks Defense Verdict Nemeth One (1) Six (6) Weeks $16.5 Million Robaey One (1) Six (6) Weeks $75 Million Castorina One (1) Eight (8) Weeks Defense Verdict Cooney Three (3) Seven (7) Weeks $12 Million Zammit One (1) Four (4) Weeks Defense Verdict Gondar Two (2) Eight (8) Weeks $22 Million Geritano Three (3) Seven (7) Weeks $6.2 Million Bartolone One (1) Five (5) Weeks Defense Verdict Robusto One (1) Five (5) Weeks $7 Million Miller One (1) Three (3) Weeks $25 Million Hillyer Two (2) Four (4) Weeks $20 Million North One (1) Three (3) Weeks $7 Million Hackshaw/Sweberg Four (4) Seven (7) Weeks $25 Million Total 5 Thanks to Steven Novakidis of Foley & Mansfield for the Charts used in these papers, as well as counsel for trialdefendants (Peter DiNunzio, Lawrence Lee, Erich Gleber) who provided additional information. 11 11 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 Juni Three (3) Eleven (11) Weeks $11 Million Carlucci Three (3) Eight (8) Weeks $7.3 Million Brown/McCloskey/Terry Three (3) Eighteen (18) Weeks $12.5 Million Total Derogatis One (1) case Three (3) Weeks Defense Verdict Thibodeau One (1) case Five (5) Weeks Defense Verdict Assenzio, et. al. Five (5) cases Eleven (11) Weeks $190 Million Total Vega One (1) case Two (2) Weeks Defense Verdict Peraica Nine (9) cases Thirteen (13) Weeks $35 Million McCormick One (1) case One (1) Week $3.8 Million Dummitt/Konstantin Seven (7) cases Eight (8) Weeks $51 Million Total Paolini/Michalski Six (6) cases Five (5) Weeks Defense Verdict Zaug One (1) case Two (2) Weeks Defense Verdict Dietz One (1) case Two (2) Weeks Defense Verdict McCarthy/Koczur Six (6) cases Five (5) Weeks $22.1 Million Total Curry One (1) case One (1) Week Defense Verdict Benton One (1) case One (1) Week $2.5 Million Figure 1 The verdicts in multiple plaintiff cases tend to be higher on a month-to-month pain and suffering basis. See Figure 2. Given the disparity in monthly pain and suffering there is a clear indication that the average juror in a multi-plaintiff case is willing to value these cases more highly than those in single plaintiff cases. Though the issue of joint trials is not determinative with respect to liability and higher value, the record is such that itis clear that joint trials are likelier to lead to findings of liability and higher verdict values. As such, a system that 12 12 of 13 FILED: NEW YORK COUNTY CLERK 05/09/2018 01:09 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 463 RECEIVED NYSCEF: 05/09/2018 tends to tilttowards plaintiffs is necessarily one that is not fairand deprives defendants of due process. Average Past P&S Average Future P&S Consolidated Trials $757K Per Month $2.49 Million Per Month (17.9 Month Average) (14 Month Average) Single PlaintiffTrials $424K Per Month $724K Per Month (25.6 Month Average) (10 Month Average) Figure 2 As the stated goal of achieving judicial economy is likely not met by consolidations, and to the extent judicial economy is achieved itis only at the expense of defendants' due process rights, the Court should exercise its discretion and order single trials in the 10 cases before it. IV. Conclusion Based on the foregoing, itis respectfully submitted that Plaintiffs have not carried the burden to demonstrate that any of the proposed trialgroups would promote the goal of defendants' judicial economy necessary to override due process concerns with joinder for trial of these cases. Disparate facts, and likely disparate laws, predominate these cases, necessitating that the cases be tried seriatim. Respectfully submitted, LEADER BERKON COLAO & SILVERSTEIN LLP by: /s/ David J. Goodearl DAVID J. GOODEARL 630 Third Avenue New York, New York 10017 (212) 486-2400 Attorneys for Defendant Imo Industries Inc. 13 13 of 13