Rare Defense Victory Where NYCAL Court Denied Consolidation of Cases for Trial
In this decision, the NYCAL court address the consolidation of two cases where the plaintiffs both alleged Navy exposure. In the first case, plaintiff John Barry Best served as a shopkeeper in the Navy from 1966 to 1970 and was allegedly exposure to asbestos from returned parts, such as gaskets and packing. In the second, plaintiff Donald Nefsey served in the Navy as a firefighter, claiming exposure to asbestos from pumps, valves, and steam traps. Mr. Nefsey also worked as a firefighter, pipefitter, and laborer, where he claimed exposure to a variety of products including insulation. The NYCAL court applied the Malcolm factors governing consolidation of asbestos cases and rejected many of the defense arguments against consolidation.
However, the court ultimately denied the motion to consolidate, finding the following facts determinative: “…the only commonality between Best and Nefsey is their naval service, and the differences in their services predominate here. Moreover, their Navy exposure constituted only a part of their overall exposure, which also differs. Best was exposed, after 1970, to asbestos-containing brakes from work on vehicles. Nefsey was exposed from 1946 to 1979 while working as a fireman, laborer, and pipefitter to asbestos-containing boilers, heating coils, insulation, pumps, steam traps, and valves. Finally, four defendants remain in the Best case, whereas 20 defendants remain in the Nefsey matter, and there are only two defendants in common. Thus, consolidating these cases for trial would result in 22 defendants participating in a trial in which they are involved in one of the plaintiffs’ cases. Plaintiffs have thus failed to establish that Best and Nefsey shared a common occupation, worksite, or exposure, or that joining these cases for trial would result in judicial economy or greater efficiency. (See Curry v Am. Standard, 2010 WL 6501559 [SD NY 2010] [differences in degree and duration of plaintiffs’ asbestos exposure would likely require presentation of different complex state-of-art evidence in each case, further mitigating against potential efficiency of consolidation]).”
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