Summary
In Aikman, the First Department endorsed the factors set forth by the United States Court of Appeals for the Second Circuit in Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir.), cert. denied, 498 U.S. 920 (1990), and Malcolm v. National Gypsum Co., 995 F.2d 346, 350-51 (2d Cir. 1993); these factors were outlined originally by a court in Maryland when considering whether to consolidate certain asbestos cases.
Summary of this case from Caroline Feller Bauer v. A.O. Smith Water Prods. Co. (In re N.Y.C. Asbestos Litig.)Opinion
February 1, 1996
Appeal from the Supreme Court, New York County (Stephen Crane, J.).
We concur with the Second Circuit in In re Repetitive Stress Injury Litig. ( 11 F.3d 368, 373, reh granted in part 35 F.3d 637, reh denied 35 F.3d 640) that the factors listed in Johnson v. Celotex Corp. ( 899 F.2d 1281, 1285, cert denied 498 U.S. 920 [asbestos litigation]; see also, Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352) are an appropriate guideline in deciding whether repetitive stress injury claims should be joined together. We agree with the IAS Court that all of the factors — common worksite, similar occupation, similar time of exposure, similar injury, status of disclosure on each claim, and representation by the same attorney — are present here. Any possibility of jury confusion was mitigated by the IAS Court's decision to impanel four separate juries ( see, In re Joint E. S. Dist. Asbestos Litig., 125 FRD 60, 67). No other demonstrable prejudice is shown in the case which, as the IAS Court explained, "is limited to four plaintiffs * * * who allege injuries caused by one defendant's negligent and improper design, production, manufacture and sales of a limited number of keyboards to [plaintiffs' common employer] * * * and identical theories of liability under [a single jurisdiction's] laws" ( comparing In re Repetitive Stress Injury Litig., supra; cf., Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352, supra).
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Tom, JJ.