NYCAL Court Consolidates Nine Cases Into Three Groups Based on Malcolm Factors and Common Questions of Law and Fact
In this NYCAL case, the plaintiff brought a motion to consolidate nine asbestos actions for joint trial, claiming that there are common questions of law and fact. The court relied on the factors set forth in Malcolm v. National Gypsum Co., 995 F.2d 346, 350-351 (2d Cir. 1993): common worksite; similar occupation; similar time of exposure; type of disease; whether plaintiffs were living or deceased; status of discovery in each case; whether all plaintiffs were represented by the same counsel; and type of cancer alleged. The court granted the plaintiff’s application and divided the cases into three separate groups. As the court held: “[T]his court finds that the trials in each of the groups involve common questions of law and fact and that consolidation of these cases into the three groups will not prejudice a substantial right of defendants. As to the three groups, all of the plaintiffs are represented by the same law firm and are in the same phase of discovery as they have all been assigned to this part for trial. Moreover, in all of the groups, the plaintiffs allege the same type of cancer. All of the plaintiffs in each of these cases have mesothelioma except for group 3 in which all of the plaintiffs have lung cancer. Although all of the groups have living and deceased plaintiffs, the death of some of these plaintiffs will not prejudice the jury against the ‘defendants, vis-a-vis, the living Plaintiffs’ because they are suffering from the same terminal illness and will suffer the same fate.”
The court highlighted the fact that the Malcolm factors do not compel the plaintiff to share a common occupation or time of exposure. While the plaintiffs in group one did have similar occupations and exposure as a pizza oven operator and server, the other two groups were made up of plaintiffs with different occupations who worked at different jobsites. However, the court found that those plaintiffs “had exposure to similar types of asbestos-containing products as well as exposures that have occurred in the same manner- by working directly with asbestos-containing products and by means of bystander exposure. Moreover, they have all had overlapping periods of exposure.”
The court was not swayed by the defendants’ argument in opposition that the consolidation violated their right to due process and equal protection. As the court stated: “The First Department has just recently held that the trial courts have the authority to consolidate asbestos cases pursuant to CPLR 602 (a) where they involve common questions of law and fact. See Matter of New York City Asbestos Litig. (Dummitt), 121 A.D.3d 230, 990 N.Y.S.2d 174 (1st Dept 2014).” In its consolidation, the court also found there to be nothing improper with consolidating two cases where the plaintiffs had different types of mesothelioma, and consolidating cases where a plaintiff was in the Navy with cases where plaintiffs did not serve in the Navy.
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