On September 01, 2015 a Motion-Secondary was filed involving a dispute between Shirley Godfrey, Shirley Jo Godfrey As Executrix Of The Estate Of Robert C. Godfrey, and Algoma Hardwoods, Inc., American Biltrite, Inc., Individually And As Successor To Amtico Floors, A.O. Smith Water Products, Basic, Inc., Bird Incorporated F K A Bird & Son, Inc., Borg Warner Corporation, By Its Successor In Interest, Borg Warner Morse Tec Inc., Burnham Corporation, 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, Cleaver Brooks Company F K A Aqua Chem, Inc., Conwed Corporation F K A Wood Conversion Company, Crane Co., Crown Boiler Co., Dap, Inc., K N A La Mirada Products Co., Inc., Domco Products Texas, Inc., D B A Tarkett Inc., Individually And As Successor To Azrock Industries, Inc., Ecr International, Inc., Individually And As Successor To Dunkirk, Dunkirk Boilers, And Utica Boilers, General Electric Company, Georgia-Pacific Corporation, Individually And As Successor To Bestwall Gypsum Company, Homasote Company, Inc., Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor In Interest To The Bendix Corp., International Paper Company, F K A Hammermill Paper Co. And Individually And As Successor To Us Plywood, Kaiser Gypsum Company, Inc., Lehrer Mcgovern Lehrer Llc, Mannington Mills, Inc., Metropolitan Life Insurance Company, New Yorker Boiler Company, Inc., Peerless Industries, Inc., Pfizer, Inc., Rheem Manufacturing Corp., Strober Organization, Inc., Turner Construction Company, Union Carbide Corporation, Weil Mclain, A Division Of Marley Wylain Company, Weyerhauser Corporation, Whiting Turner, York International Corporation, Individually And As Successor To Frick Company, for Asbestos in the District Court of New York County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
FILED: NEW YORK COUNTY CLERK 10/24/2016 03:46 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 10/24/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X FRANCIS J. LoRUSSO and BARBARA LoRUSSO, AFFIRMATION ON BEHALF OF CROWN EQUIPMENT Plaintiffs, CORPORATION’S IN OPPOSITION TO -against- PLAINTIFFS’ MOTION FOR A JOINT TRIAL A.O. SMITH WATER PRODUCTS, et al., Hon. Cynthia S. Kern INCLUDING ZY-TECH GLOBAL INDUSTRIES, INC. Index No.: 190323/2015. Et al. Defendants. Lead Case: 190280/2015 Belluck & Fox, LLP -------------------------------------------------------------------X April 2016 In-Extremis DIANE H. MILLER, ESQ. an attorney duly admitted to practice law before the Courts of the State of New York affirms the following pursuant to CPLR §2106: 1. I am a Partner of the law firm LITTLETON JOYCE UGHETTA PARK & KELLY LLP, attorneys for defendant, CROWN EQUIPMENT CORPORATION (hereinafter “CROWN EQUIPMENT”). 2. Defendant, CROWN EQUIPMENT, respectfully joins in the main opposition to Plaintiffs’ joint trial submitted by lead counsel and CROWN EQUIPMENT fully adopts any similar opposition submitted by co-defendants to the extent that such opposition does not conflict with the position set forth in this affirmation. 3. CROWN EQUIPMENT also submits the following papers to highlight why these cases do not meet the standard for consolidation under CPLR § 602 and do not satisfy the factors for consolidation highlighted in Malcom v. National Gypsum Co., 955 F.2d 346 (2d Cir. 1993). The distinct factual differences between these matters alone are sufficient not to warrant joinder as such a trial would severally prejudice CROWN EQUIPMENT’S fundamental right to a fair and impartial jury. 4821-9335-9668 1 of 3 4. Pursuant to plaintiffs’ affirmation in support of a motion for joint trial, plaintiffs’ counsel submits a request to separate seven (7) cases from its April 2016 In-Extremis cluster into three (3) groups. Specifically, in the proposed “Group 1” CROWN EQUIPMENT is a remaining defendant in the LoRusso matter only; one case out of the four cases for this proposed group. For CROWN EQUIPMENT, to be part of a group where the majority of the testimony and evidence presented has nothing to do with itwill do nothing but serve as a severe prejudice and impact CROWN EQUIPMENT’S fundamental right to a fair and impartial jury. Moreover, CROWN EQUIPMENT would be highly prejudiced based upon testimony from other witnesses who CROWN EQUIPMENT will not be permitted to cross examine in the remaining three matters, Reinke, Shortt, or Snowdale matters. As CROWN EQUIPMENT never a party in these matters. 5. Significantly, the consolidation of the four (4) matters in Group 1 will not “tend to avoid unnecessary costs or delay,” which are factors the Court should consider under CPLR § 602 in deciding consolidation motions. Should the Court grant a joint trial of the four Group 1 cases, both costs and delays to CROWN EQUIPMENT will be substantially increased as the evidence put forward in the other matters will have nothing to do with the defense of CROWN EQUIPMENT’S respective claim in the LoRusso matter. It is clearly unfair to have CROWN EQUIPMENT sit through and incur the costs associated with potentially months of evidence in a consolidated trial that has nothing to do with the allegations against CROWN EQUIPMENT in this single matter. 6. The proposed Group 1 does not contain claimants with a commonality of worksites. The purported commonality of the worksites of these four (4) plaintiff’s lies entirely in their service in either the United States Navy or United States Merchant Marine Academy, and the alleged common issues of fact or law pertaining to those defendants are linked by their Naval service. 2 2 of 3 Consolidation of these four matters with separate and distinct occupations that clearly do not have a “significant overlap” and would cause CROWN EQUIPMENT to be subject to the majority of evidence that has no probative value or relevance to the LoRusso matter, the only matter where CROWN EQUIPMENT is a party. 7. There are distinct differences in the type of work performed by the occupations of the four Group 1 plaintiffs and the lack of commonality would severely prejudice CROWN EQUIPMENT as the evidence and expert testimony presented in each case would not apply to the other cases at hand. Plaintiffs’ only allegation as to CROWN EQUIPMENT Mr. LoRusso was exposed to asbestos-containing dust from his work on or around fork lifts. Plaintiffs’ allege that LoRusso, Reinke, Shortt, and Snowdale both had extensive exposure to valves, pumps, and insulation. However, none of those products were manufactured by CROWN EQUIPMENT, and any and all expert testimony regarding those wholly separate products would only serve to create jury confusion and hinder CROWN EQUIPMENT’S right to a fair and impartial jury. WHEREFORE, for the foregoing reasons, as well as those discussed in the joint brief submitted on behalf of all defendants, it is respectfully requested that the Court deny plaintiffs’ motions for a joint trial and the LoRusso matter is tried separately so there is no confusion of the issues and there is no prejudice to CROWN EQUIPMENT. Dated: Purchase, New York October 24, 2016 BY: Diane H. Miller, Esq. 3 3 of 3