Within a recent decision, Judge George Silver of Supreme Court, New York County, held that since not all asbestos plaintiffs are created equal, the joint trial of several, bundled asbestos lawsuits is not axiomatic — as the plaintiffs’ bar would have it — but rather needs to be established in each individual case. In doing so, the judge struck a balance between the policy in favor or judicial economy and the defendant’s right to a fair and impartial trial.
In re NYC Asbestos Litigation, 2013 N.Y. Misc. LEXIS 4732, 2013 NY Slip Op 32548(U) (2013) involved a motion by seven plaintiffs to jointly try their cases together. In support of the motion, the plaintiffs alleged common modes and historical timing of asbestos exposure; similar expert witnesses; identical injury for six of them; same plaintiff’s counsel, etc. The plaintiffs also claimed judicial economy would be served by trying the seven cases together. In opposition, the defendants argued joinder of the cases would not promote judicial efficiency, but rather would lead to juror confusion and an unfair trial for the following reasons: 1) The plaintiffs’ worksites and occupations were dissimilar; 2) the products at issue were diverse; 3) the mode of exposure differed; 4) different time periods were in question; and 5) the diseases were not the same. Defendants further maintained that whereas an individual case takes five to twelve days to try, a joint trial such as the one at bar could take upwards of ninety days given the volume of evidence attendant to a trial of this magnitude.
Judge Silver, within his analysis, first pointed to the general policy underlying CPLR § 602(a), which permits a court to join actions involving common questions of law or fact “where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which would result from divergent decisions based on the same facts.” That consideration, while “significant,” must be balanced against that of “basic fairness.” He reasoned that “joint trial should be denied where (1) individual issues predominate over common issues in the cases sought to be joined, or (2) the party opposing the joint trial demonstrates substantial prejudice.” Judge Silver relied upon the Second Circuit’s asbestos decision in Malcolm v National Gypsum Co., 995 F2d 346 (2d Cir 1993), which promulgated a list of factors to be considered, including common worksite; similar occupation; similar period of exposure; disease type; if the plaintiffs were living or deceased; status of discovery within each case; identity of plaintiff’s counsel; and the type of cancer alleged. The moving party bears the burden of establishing common issues and the burden then shifts to the opposition to demonstrate “prejudice and potential jury confusion.”
Ultimately, Judge Silver held four of the seven plaintiffs would have separate trials; three of the seven would be tried jointly. Of the four cases to be tried separately, one plaintiff — a dentist — claimed exposure via asbestos-containing dental tape. Another, a LIRR worker, did not claim direct exposure, but rather from contact with co-workers. The third was the only plaintiff in the group who smoked and had been diagnosed with lung cancer, not mesothelioma, which clearly provided the defendants in that case with distinct causation and damages issues not available in the other cases. Finally, the fourth claimed exposure while in the Navy, which raised federal legal issues not present in the other suits.
Judge Silver’s decision provides defense counsel with a clear roadmap by which to analyze and oppose, if warranted, a motion for a joint trial. Contrary to the position oft taken by the plaintiff, all asbestos plaintiffs and defendants are not created equal, nor are they similarly situated. While judicial efficiency is certainly an important policy consideration, it must not outweigh the right of the defense to a fair and impartial trial.