Death of Plaintiff Prompts Judge to Reverse Decision Consolidating Asbestos Cases
Case Study

Death of Plaintiff Prompts Judge to Reverse Decision Consolidating Asbestos Cases

May 2, 2019

When Goldberg Segalla partner Oded Burger persuaded a judge in February 2019 to separate a client’s mesothelioma claim from two other such cases not long after consolidating all three, the experienced toxic torts attorney did more than change a judge’s mind. He also helped cement an emerging procedural rule that lawsuits involving living plaintiffs can’t be lumped together with those whose plaintiffs are dead.

Oded’s successful argument that his client’s case was too different from the others to consolidate with them had its roots in what happened November 1, 2018: the death of one of the plaintiffs suing the lift-truck manufacturer – a 74-year-old Flushing, New York, native who had filed the claim with his wife in 2017.

The lift-truck manufacturer was one of dozens of companies the couple sued because he had mesothelioma, a form of lung cancer caused by exposure to asbestos. The man’s cancer was the result of his spending most of his life living or working where laborers, certain conditions, or he himself were unwittingly releasing asbestos into the air, the couple alleged – starting with his childhood home and the installation there of new floor tiles containing encapsulated chrysotile asbestos.

The list of places where the man alleges he was exposed to asbestos also includes a print shop where he used asbestos from a bag to line a double-boiler pot; the U.S.S. Wasp, while he was in the Navy; houses and buildings he inspected for insurance companies; an Exxon service station where he helped mechanics work on brakes, mufflers, and clutches; and the home where he and his wife lived, on Long Island.

The man died late last year while the judge in his claim against the lift-truck manufacturer was considering a motion to combine that lawsuit with two other asbestos claims. Unaware of the man’s death, the judge granted the consolidation request and set a trial date for the three cases together of March 26, 2019. But before long there came another motion: Oded’s, informing the judge that the plaintiff in the lift truck-manufacturer claim had died and asking him to reconsider his decision to lump that case together with the others.

Oded’s motion to re-argue the earlier motion that had prompted the judge to combine the cases was the only such filing in the dispute over consolidation, though many co-defendants in other cases followed with “me too” briefs. The judge granted the motion, agreed with the defense team’s argument against consolidation, and separated the lift truck-manufacturer case, once again, from the others. With some exceptions, combining a case involving a dead plaintiff with one whose plaintiff is alive would be prejudicial, possibly biasing the jury against one of the parties, the judge ruled.

The decision marks another successful client defense for Oded, a member of Goldberg Segalla’s Toxic Tort practice group, a team of over 50 exceptional attorneys that includes veteran toxic tort litigators, nationally recognized rising stars, and thought leaders with deep backgrounds in emerging toxic tort trends. Oded has nearly a decade of experience handling high-value toxic tort litigation involving a wide range of complex scientific issues. He also dedicates a significant portion of his practice to advising clients on managing and monetizing intellectual property and protecting it in state and federal courts and before the U.S. Patent and Trademark Office.