Summary
affirming a trial court decision consolidating three asbestos cases for joint trial where plaintiffs were exposed to asbestos during an overlapping period of 40 years, even though there were differences among plaintiffs, including that one plaintiff had mesothelioma while two other plaintiffs had lung cancer
Summary of this case from Cunningham v. Aerco Int'l (In re N.Y.C. Asbestos Litig.)Opinion
2013-11-26
In re NEW YORK CITY ASBESTOS LITIGATION, Ester Baruch, et al., Plaintiffs, v. Baxter Healthcare Corporation, et al., Defendants, Karl Fersch, et al., Plaintiffs–Respondents, v. Amchem Products Inc., et al., Defendants, Volkswagen Group of America, Inc., Defendant–Appellant.
Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Alani Golanski of counsel), for respondents.
Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Alani Golanski of counsel), for respondents.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 22, 2013, which, to the extent appealed from, granted plaintiffs' motion pursuant to CPLR 602 to consolidate to the extent of consolidating the cases of Juni, Fersch and Middleton for trial, unanimously affirmed, without costs.
Given that all three plaintiffs were exposed to asbestos products for vehicles in their work as mechanics over a substantially overlapping period of 40 years, and each is represented by the same counsel, and each case is trial ready, it cannot be said that the IAS court abused its discretion in ordering the three cases consolidated for trial ( see Malcolm v. National Gypsum Co., 995 F.2d 346, 350–352 [2d Cir.1993] ). While there are some differences, including that one plaintiff has mesothelioma while the other two have lung cancer, and other differences pointed out by defendant, this does not outweigh the substantial overlap of factual and legal issues, or suggest the prejudice of defendant's right to a fair trial ( see Matter of New York City Asbestos Litig., 2011 N.Y. Slip Op. 31210[U], *5–7, 2011 WL 1826854 [Sup.Ct., N.Y. County 2011] ). MAZZARELLI, J.P., ACOSTA, MOSKOWITZ, MANZANET–DANIELS, GISCHE, JJ., concur.