The eight captioned asbestos cases involving the following plaintiffs: John Capozio ("Capozio"), Eugene Dalton ("Dalton"), Craig Kimball ("Kimball"), Ronald Kister ("Kister")Michael McDonald ("McDonald"), Nunzio Prato ("Prato"), Angelo Romano ("Romano") and Raymond Walsh ("Walsh")(collectively, "Plaintiffs") have been transferred to this court pursuant to NYCAL Amended Case Management Order for trial. Only one of Plaintiffs is deceased.

Pursuant to CPLR §602(a), Plaintiffs' counsel moves by order to show cause ("OSC") to consolidate these seven personal injury actions and one wrongful death action for joint trial claiming the existence of common questions of law and fact.

Co-defendants, Goulds Pumps ("Goulds"), Burnham, LLC ("Burnham"), Trane U.S. Inc., f/k/a American Standard, Inc. ("American Standard"), Crane Co. ("Crane"), [*2]Kentile, Inc. ("Kentile"), General Electric Company ("GE"), Peerless Industries ("Peerless"), Foster Wheeler ("F-W"), Weil-McLain ("W-M"), Cleaver Brooks ("C-B")^[FN1] and Robert A. Keasbey Co. ("Keasbey")(collectively, "Defendants" ^[FN2]) oppose the OSC, each contending that these cases' dissimilarities outweigh their commonalities.

In support of Plaintiffs' consolidation OSC, counsel's supporting affirmation advances what appear to be obvious commonalities, i.e., Weitz and Luxenberg jointly represent Plaintiffs and Plaintiffs, including decedent Walsh, were/are alleged to have been afflicted with asbestos-induced lung cancer. Among other common issues/factors which Plaintiffs claim predominate over individual ones are (Comerford Aff. in Support of OSC at ¶¶ 5 and 20-27): Plaintiffs, while admittedly not exposed at one common work site, were exposed to the same type of asbestos containing insulation or other materials or products ^[FN3] ("ACM") at comparable commercial work sites ^[FN4] and residential work sites; Plaintiffs were engaged in similar occupations in the construction trades ^[FN5] and were exposed to ACM as end-users/bystanders; all eight Plaintiffs were exposed to ACM during the 1970s, four of Plaintiffs had ACM exposures in the 1940s-50s, six of Plaintiffs had such exposures during the 1960s which allow for their respective exposure histories to temporally overlap and, in turn, will result in the same state-of-the-art, medical and expert evidentiary overlap at a joint trial; there are numerous common defendants in these eight cases, viz., three defendants are [*3]common to four or more actions, and five defendants are common to two or three of these actions; at trial, every defendant will seek to prove liability of one or more of their co-defendants, any settling tortfeasor and one or more absentee bankrupt tortfeasors to mitigate their own liability under CPLR Article 16 and this proof via documentary and testimonial evidence will provide for considerable overlap; consolidating Walsh with the remaining living plaintiffs' cases for trial will not be prejudicial since Plaintiffs were all diagnosed with lung cancer and the average juror is aware that "lung cancer in most instances will lead to death . . ." (Comerford Aff. in Support of OSC at ¶ 23); and finally, these cases are ready for trial and any remaining deposition testimony required to be taken in the Romano action can be done without any undue delay.

In opposition,^[FN6] Defendants uniformly highlighted certain differences they claim predominate over the common factors: (1) Plaintiffs did not uniformly share common work sites which ranged from commercial and residential sites to shipyards and powerhouses; (2) Plaintiffs did not uniformly share common occupations but were in fact rather diverse (i.e., carpenter, electrician, roofer, welder, laborer, plumber and steamfitter, etc.); (3) Plaintiffs did not uniformly experience common exposures; namely, some of Plaintiffs were exposed as end users of ACM whereas others were exposed as bystanders; (4) as gleaned from Plaintiffs' respective interrogatories (see illustratively, Angiolillo Opp. Aff. at ¶¶6-12), none of them share the same time period of exposure (viz., Capozio: 1941-1997, Dalton: 1940's and 1980, Kimball: 1974-1979, Kister: 1960 -1980s, McDonald: 1970-1981, Prato: late 1950s or early 1960s and 1984, Romano: unknown at this time and Walsh: 1970-1990s);(5) Defendants in cases involving the personal injury claims of the seven living plaintiffs will be prejudiced by the wrongful death claim of decedent Walsh; and (6) none of Defendants is common to all eight cases.

GE and FW jointly advance additional factors which these defendants believe warrant separating the Capozio, Romano and Walsh matters from this cluster. Capozio's exposure history includes a time period when he was a federal employee at the U.S. Naval Gun factory in Washington, D.C., Romano claims he was exposed to ACM while working in shipyards in New Jersey, Virginia and inexplicably after his retirement in New York ^[FN7] and decedent Walsh claimed exposure to ACM while serving [*4]as a U.S. Navy firefighter aboard naval vessels. These co-defendants contend that "these cases may implicate federal interests, preemption and immunity defenses which are not at issue in the other cases . . ." (GE's and F-W's Memorandum of Law in Opposition to Plaintiffs' Motion for a Joint Trial at p. 12).

Keasbey further argues that this court's rationale for consolidating cases involving living and deceased plaintiffs when the former are terminally ill and non-prejudicial is inapplicable here, because the seven living plaintiffs appear to be long-term lung cancer survivors who are not in extremis. Keasbey also claims decedent Walsh is the only plaintiff to have been exposed to ACM as a powerhouse worker, a unique work site markedly different from the remaining Plaintiffs' commercial sites which will require Keasbey to produce voluminous evidence having no overlap with the proof of ACM exposure to be produced in the other cases.

Another disparate factor militating against consolidation directly raised by Keasbey, and indirectly by GE and F-W (Walsh's type of cancer is being questioned [see Novakidis Opp. Aff. at ¶29 and Exhibit J thereto]), is the fact that seven of the Plaintiffs have significant smoking histories including decedent Walsh and in five of these cases including Walsh, there is purportedly no evidence of asbestosis ^[FN8] (see Exhibit L to Fenton Opp. Aff.). Only Dalton is a non-smoker. Thus, these co-defendants argue that they inter alia expect to prove that smoking and not ACM exposure was the competent producing cause of lung cancer in the seven relevant cases. Consolidating Dalton (which obviously lacks an alternative causation defense) to these cases will be prejudicial.

Discussion

CPLR §602(a) permits a court to consolidate two or more actions for joint trials if they involve common questions of law and fact. "Consolidation is appropriate 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. . ." Chinatown Apartments, Inc. v. New York City Transit Authority, 100 AD2d 824, 474 NYS2d 673 (1st Dept., 1984). Joint trials will also foster judicial economy, quicken the disposition of cases (Matter of City of Rochester v. Levin, 57 AD2d 700, 395 NYS2d 773 [4th Dept., 1977]) and potentially encourage settlements (Matter of New York City Asbestos Litigation [Brooklyn Naval Shipyard Cases]), 188 AD2d 214, 225, 593 NYS2d 43, 50 [1st Dept., 1993]). Fairness compels the court to consider joint trials [*5]ill-advised, "where individual issues predominate, concerning particular circumstances applicable to each plaintiff. . ." (Bender v. Underwood, 93 AD2d 747, 748, 461 NYS2d 301, 302 [1st Dept., 1983]) and one or more of the defendants.

In exercising discretion to consolidate these eight actions, the court should consider certain suggested factors in determining whether joint trials here are appropriate, to wit: "(1) common work site; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs are living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs are represented by the same counsel; and (8) type of cancer alleged." Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352 (2nd Cir., 1993).

Notwithstanding Defendants' contrary view and consistent with this court's earlier decisions (i.e., In re New York City Asbestos Litigation [Altholz, et seq.], 11 Misc 3d 1063(A), 816 NYS2d 698 [Sup. Ct., NY Co., 2006])(Exhibit C to Comerford Aff. in Support of OSC), this Court finds that certain commonalities do exist and certain issues Defendants collectively claim predominate over the commonalities will not defeat Plaintiffs' application for joint trials generally. First, Plaintiffs are represented by the same law firm. Second, Plaintiffs share a common disease, lung cancer. Third, this court will make every reasonable effort to resolve any party's outstanding discovery concerns which, in and of itself, does not warrant denying the OSC entirely. Fourth, this court has previously held that except under unique circumstances, the Malcolm factors generally do not compel Plaintiffs to share a common (i.e., identical) work site, occupation or time period of exposure. Thus, this Court finds there are similarities in the manner in which almost all of Plaintiffs performed their respective tasks in the construction trades which exposed them to ACM during overlapping periods of time from the 1940's to the 1990's. Finally, against this backdrop, the state of the art testimony and other expert testimony in a general way will be substantially common to Plaintiffs.

However, the Walsh case must be tried separately from the other Plaintiffs because certain individual factors attributable to this case clearly predominate over the foregoing commonalities: (1) consistent with this court's Bench Decision and Order in O'Reilly v. A.C. & S., Inc., n.o.r., Index No. 1035502/02 (Sup. Ct., NY Co., April 14, 2003)(see Exhibit N to Fenton Opp. Aff.), decedent Walsh's exposure to ACM as a steamfitter in the powerhouses was unique from other Plaintiffs' exposures at their respective work sites (commercial or residential) necessitating a separate trial because of the anticipated introduction of voluminous evidence that will be wholly irrelevant to the other cases and cause jury confusion; (2) because of Walsh's stint as a U.S. Navy firefighter on vessels at sea, federal law may be implicated and it could "prove to be confusing for the jury to sort out the varying elements of liability and damages governed by New York's negligence and product liability laws and those under federal maritime

law. . ." (see Altholz, supra , 11 Misc 3d 1063(A), 816 NYS2d 698 [*4] [Sup. Ct., NY Co., 2006]) if Walsh was consolidated with the other cases; and (3) regardless of the fact that decedent Walsh shares a smoking lung cancer factor common to five other living plaintiffs, consolidating Walsh with any of the living plaintiffs' cases will prejudice [*6]Defendants in the latter cases inter alia because of the possibility that a jury will attribute the fate of the deceased to the living plaintiffs at this juncture especially where it appears that the living plaintiffs are long-term cancer survivors who are not at risk of immediately dying of their cancer.

Walsh's second individual factor, supra , is equally applicable to both Capozio and Romano as their respective trials could invite defenses and arguments exclusively involving federal law. Moreover, the Romano action is further complicated by the possible factor that New York law will not apply. Accordingly, these actions will be tried separately as well.

Further, fundamental fairness, logic and common sense compel this court to direct that the Dalton matter, the only non-smoking lung cancer case in this cluster, be tried separately. To otherwise link Dalton with the other smoking lung cancer cases will prejudice the former because Defendants in the latter will most assuredly present proof in support of their alternative causation defense (i.e., smoking, not ACM exposure, is the proximate cause of their lung cancer) and this proof of cigarette smoking being "blown" with Dalton in the courtroom could adversely affect his right to a fair trial.

Accordingly, the OSC is granted, in part, to consolidate the Kimball, Kister, McDonald and Prato actions for a joint trial. The remaining actions will be tried thereafter in due course.

The parties in all eight cases are directed to appear at a pre-trial conference in Part 1, Room 1127B at 111 Centre Street, New York, New York, 10013 on January 12, 2009 at 9:30 a.m. to coordinate the calendaring of these trials and resolve any other outstanding issues of concern.

This constitutes this court's Decision and Order. Courtesy copies of same have been furnished to counsel for the parties.

DATED: New York, New York

January 9, 2009

___________________________

Hon. Martin Shulman, J.S.C. (see Exhibit L to Fenton Opp. Aff.). Only Dalton is a non-smoker. Thus, these co-defendants argue that they inter alia expect to prove that smoking and not ACM exposure was the competent producing cause of lung cancer in the seven relevant cases. Consolidating Dalton (which obviously lacks an alternative causation defense) to these cases will be prejudicial.

Discussion

CPLR §602(a) permits a court to consolidate two or more actions for joint trials if they involve common questions of law and fact. "Consolidation is appropriate 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. . ." Chinatown Apartments, Inc. v. New York City Transit Authority, 100 AD2d 824, 474 NYS2d 673 (1st Dept., 1984). Joint trials will also foster judicial economy, quicken the disposition of cases (Matter of City of Rochester v. Levin, 57 AD2d 700, 395 NYS2d 773 [4th Dept., 1977]) and potentially encourage settlements (Matter of New York City Asbestos Litigation [Brooklyn Naval Shipyard Cases]), 188 AD2d 214, 225, 593 NYS2d 43, 50 [1st Dept., 1993]). Fairness compels the court to consider joint trials [*7]ill-advised, "where individual issues predominate, concerning particular circumstances applicable to each plaintiff. . ." (Bender v. Underwood, 93 AD2d 747, 748, 461 NYS2d 301, 302 [1st Dept., 1983]) and one or more of the defendants.

In exercising discretion to consolidate these eight actions, the court should consider certain suggested factors in determining whether joint trials here are appropriate, to wit: "(1) common work site; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs are living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs are represented by the same counsel; and (8) type of cancer alleged." Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352 (2nd Cir., 1993).

Notwithstanding Defendants' contrary view and consistent with this court's earlier decisions (i.e., In re New York City Asbestos Litigation [Altholz, et seq.], 11 Misc 3d 1063(A), 816 NYS2d 698 [Sup. Ct., NY Co., 2006])(Exhibit C to Comerford Aff. in Support of OSC), this Court finds that certain commonalities do exist and certain issues Defendants collectively claim predominate over the commonalities will not defeat Plaintiffs' application for joint trials generally. First, Plaintiffs are represented by the same law firm. Second, Plaintiffs share a common disease, lung cancer. Third, this court will make every reasonable effort to resolve any party's outstanding discovery concerns which, in and of itself, does not warrant denying the OSC entirely. Fourth, this court has previously held that except under unique circumstances, the Malcolm factors generally do not compel Plaintiffs to share a common (i.e., identical) work site, occupation or time period of exposure. Thus, this Court finds there are similarities in the manner in which almost all of Plaintiffs performed their respective tasks in the construction trades which exposed them to ACM during overlapping periods of time from the 1940's to the 1990's. Finally, against this backdrop, the state of the art testimony and other expert testimony in a general way will be substantially common to Plaintiffs.

However, the Walsh case must be tried separately from the other Plaintiffs because certain individual factors attributable to this case clearly predominate over the foregoing commonalities: (1) consistent with this court's Bench Decision and Order in O'Reilly v. A.C. & S., Inc., n.o.r., Index No. 1035502/02 (Sup. Ct., NY Co., April 14, 2003)(see Exhibit N to Fenton Opp. Aff.), decedent Walsh's exposure to ACM as a steamfitter in the powerhouses was unique from other Plaintiffs' exposures at their respective work sites (commercial or residential) necessitating a separate trial because of the anticipated introduction of voluminous evidence that will be wholly irrelevant to the other cases and cause jury confusion; (2) because of Walsh's stint as a U.S. Navy firefighter on vessels at sea, federal law may be implicated and it could "prove to be confusing for the jury to sort out the varying elements of liability and damages governed by New York's negligence and product liability laws and those under federal maritime

law. . ." (see Altholz, supra , 11 Misc 3d 1063(A), 816 NYS2d 698 [*4] [Sup. Ct., NY Co., 2006]) if Walsh was consolidated with the other cases; and (3) regardless of the fact that decedent Walsh shares a smoking lung cancer factor common to five other living plaintiffs, consolidating Walsh with any of the living plaintiffs' cases will prejudice [*8]Defendants in the latter cases inter alia because of the possibility that a jury will attribute the fate of the deceased to the living plaintiffs at this juncture especially where it appears that the living plaintiffs are long-term cancer survivors who are not at risk of immediately dying of their cancer.

Walsh's second individual factor, supra , is equally applicable to both Capozio and Romano as their respective trials could invite defenses and arguments exclusively involving federal law. Moreover, the Romano action is further complicated by the possible factor that New York law will not apply. Accordingly, these actions will be tried separately as well.

Further, fundamental fairness, logic and common sense compel this court to direct that the Dalton matter, the only non-smoking lung cancer case in this cluster, be tried separately. To otherwise link Dalton with the other smoking lung cancer cases will prejudice the former because Defendants in the latter will most assuredly present proof in support of their alternative causation defense (i.e., smoking, not ACM exposure, is the proximate cause of their lung cancer) and this proof of cigarette smoking being "blown" with Dalton in the courtroom could adversely affect his right to a fair trial.

Accordingly, the OSC is granted, in part, to consolidate the Kimball, Kister, McDonald and Prato actions for a joint trial. The remaining actions will be tried thereafter in due course.

The parties in all eight cases are directed to appear at a pre-trial conference in Part 1, Room 1127B at 111 Centre Street, New York, New York, 10013 on January 12, 2009 at 9:30 a.m. to coordinate the calendaring of these trials and resolve any other outstanding issues of concern.

This constitutes this court's Decision and Order. Courtesy copies of same have been furnished to counsel for the parties.

DATED: New York, New York

January 9, 2009

___________________________

Hon. Martin Shulman, J.S.C.