Servedio v. A.O. Smith Water Prods. Co.

Servedio v A.O. Smith Water Prods. Co. 2023 NY Slip Op 34538(U) December 27, 2023 Supreme Court, New York County Docket Number: Index No. 190144/2018 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 190144/2018 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 12/27/2023

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice ------------------- - - - - - - - - X INDEX NO. 190144/2018 CHARLES SERVEDIO, MOTION DATE 06/30/2023 Plaintiff, MOTION SEQ. NO. _ _ _0_0_2_ _ - V- A.O. SMITH WATER PRODUCTS CO, AMCHEM PRODUCTS, INC.,BORGWARNER MORSE TEC LLC., BURNHAM, LLC,CARRIER CORPORATION, CERTAINTEED CORPORATION, CRANE CO, CYCLOTHERM OF WATERTOWN, INC, DANA COMPANIES, LLC,ECR INTERNATIONAL, CORP., H.B.

FULLER COMPANY, HONEYWELL INTERNATIONAL, INC.,ITT LLC., J.H. FRANCE REFRACTORIES COMPANY, KOHLER CO, OWENS-ILLINOIS, INC, PEERLESS DECISION + ORDER ON INDUSTRIES, INC, PFIZER, INC. (PFIZER), REYNOLDS MOTION METALS COMPANY, RHEEM MANUFACTURING COMPANY, SCHNEIDER ELECTRIC USA, INC. FORMERLY KNOWN AS, SLANT/FIN CORPORATION, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY-WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF, LEVITON MANUFACTURING CO., INC., Defendant.

-----------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 196, 197, 198, 199, 200,201,203,204,205 were read on this motion to/for MISCELLANEOUS

Upon the foregoing documents, it is ordered that plaintiffs order to show cause for joint trials is granted for the reasons set forth below.

Here, plaintiff moves for a joint trial of fifteen actions, to be consolidated into six groups.

Plaintiff seeks to consolidate these fifteen actions as follows:

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Group 1 - plaintiff seeks to consolidate Servedio v AO Smith Water Products Co., 190144/2018, with Funicello v Amchem Products, Inc., et. al., 190247/2019. Defendants oppose and plaintiff replies.

Group 2 - plaintiff seeks to consolidate Frankini v Aerco Int 'l, Inc., et. al., 190165/2020, with Bomzer v A.F Rockland Plumbing, et. al., 190019/2020. Defendants oppose and plaintiff replies.

Group 3 - plaintiff seeks to consolidate McCabe v ABB, Inc., 190036/2019, with Moore v AO Smith Water Products Co., 190054/2017, and Surace v Amchem Products, Inc., 190017/2014. Defendants oppose and plaintiff replies.

Group 4 - plaintiff seeks to consolidate Salinari, Sr. v Air & Liquid Systems, · 190151/2019, with Sanese v AO Smith Water Products Co., 190190/2013, and Goldstein v Amchem Products, Inc., 190159/2020. Defendants oppose and plaintiff replies.

Group 5 - plaintiff seeks to consolidate Ober v Amchem Products, Inc., 190465/2018, with Burns v AO Smith Water Products Co., 190016/2019, and Sudano v AO Smith Water Products Co., 190175/2017. Defendants oppose and plaintiff replies.

Group 6 - plaintiff seeks to consolidate Mooney v Amchem Products, Inc., 190249/2019, with Cloonan v Aerco Int'!, Inc., 190014/2019. Defendants oppose and plaintiff replies.

The Case Management Order dated June 20, 2017 (hereinafter referred to as the "CMO") states that "[t]wo cases may be joined for trial where plaintiff demonstrates that joinder is warranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York State cases interpreting Malcolm. Malcolm and its progeny list factors to measure whether cases should be joined; it is not necessary under Malcolm that all such factors be present to warrantjoinder."

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· CMO, §XXV. B. The factors to be considered under Malcolm are "(1) common worksites; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged". Malcolm, 955 F2d at )50-351.

The United States Court of Appeals, 2nd Circuit, further noted that "[c]onsolidation of tort actions sharing common questions of law and fact is commonplace. This is true of asbestos-related personal injury cases as well." Malcolm, id at 350 (internal quotations and citations omitted). As to consolidation of three cases, the CMO states that "[u]pon good cause shown, a Trial Judge in NYCAL may join a maximum of three c~ses for trial where it determines that 1) joinder is warranted under three or more of the factors described in Malcolm and New York State cases interpreting Malcolm, and 2) where the three plaintiffs share the same disease. For purposes of this section 'same disease' shall mean that all the plaintiffs in the three cases proposed to be joined for trial share one of the following four categories of disease: 1) pleural mesothelioma, or 2) non-pleural mesothelioma, or 3) lung cancer, or 4) other cancers." CMO, §XXV. B.

Plaintiff argues that consolidation of the cases for joint trial as specified in the groups above is appropriate. Plaintiff contends that the Malcolm factors were met and consolidation ,, must be granted. Defendants jointly oppose, arguing that the CMO specifically states that no more than two cases should be joined but, in several of the proposed groups, plaintiff is attempting to join three cases in contravention of the CMO. Defendants further argue that plaintiff failed to meet the burden to establish sufficient commonalities amongst the actions, and that a joint trial would be contrary to judicial economy and prejudicial to defendants.

As to Group 1, the instant action and Funicello v Amchem Products, Inc., et. al.,

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190247/2019, after reviewing all the Malcolm factors, the Court finds that plaintiffs, Mr. Servedio and Mr. Funicello were both exposed to asbestos through their employment maintaining, repairing, and inspecting boilers and through their handling of boilers. Moreover, Mr. Servedio and Mr. Funicello' s overlapping period of exposure spanned two decades from the 1950s to the 1970s. Additionally, both plaintiffs developed lung cancer from which both plaintiffs are.currently battling, the discovery in both actions are complete, and the plaintiffs have the same counsel. Additionally, defendants Burnham, LLC, Crane Co., Peerless Industries, Inc., and Weil-McLain are common defendants. Thus, at least six of the eight Malcolm factors have been satisfied.

With regards to Group 2, plaintiff seeks to consolidate Frankini v Aerco Int 'l, Inc., et. al., 190165/2020, with Bomzer v A.F. Rockland Plumbing, et. al., 190019/2020. In addition to the joint opposition by all defend~ts, defendant Union Carbide Corporation submits individual opposition papers. Defendant Union Carbide Corporation argues that there are laws and facts specific to it in the cases in which it is a defendant, joint trials are not permissible where plaintiff seeks punitive damages, and that plaintiff failed to satisfy the Malcolm factors or establish that consolidation would not confuse the jury and prejudice defendants. However, despite the defendants' contentions, Mr. Bomzer and Mr. Frankini were both exposed to asbestos through their employment as plumbers and through their handling of similar materials and equipment such as boilers. These two plaintiffs have similar times of exposure in that Mr. Bomzer was exposed to asbestos from 1968 to 1986 and Mr. Frankini was exposed to asbestos from 1961 to 1990. Moreover, both plaintiffs developed lung cancer from which both plaintiffs are currently battling, the discovery in both of these actions are complete, and both plaintiffs have the same

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Regarding Group 3, plaintiff seeks to consolidate McCabe v ABB, Inc., 190036/2019, with Moore v AO Smith Water Products Co., 190054/2017, and Surace v Amchem Products, Inc., 190017/2014: In addition to the joint opposition by all defendants, defendant Union Carbide Corporation submits individual opposition papers. Defendant Union Carbide Corporation argues that there are laws and facts specific to it in the cases in which it is a defendant, joint trials are not permissible where plaintiff seeks punitive damages, and that plaintiff failed to satisfy the Malcolm factors or establish that consolidation would not confuse the jury and prejudice defendants. However, after reviewing all the Malcolm factors, the Court finds that plaintiffs, Mr. McCabe, Mr. Moore Sr., and Mr. Surace, were all exposed to asbestos through their employment as union carpenters and through their handling of similar materials and equipment such as floor tiles and joint compound. These three (3) plaintiffs have similar times of exposure in that Mr. McCabe was exposed to asbestos from 1958 to 1995, Mr. Moore Sr. was exposed to asbestos from 1956 to 1990, and Mr. Surace was exposed to asbestos from 1953 to 1995. Additionally, all plaintiffs developed lung cancer from which all 3 plaintiffs are currently battling, the discovery in all of these actions are complete, and the 3 plaintiffs have the same counsel. Thus, seven of the eight Malcolm factors have been satisfied.

As for Group 4, plaintiff seeks to consolidate Salinari, Sr. v Air & Liquid Systems,

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190151/2019, with Sanese v AO Smith Water Products Co., 190190/2013, and Goldstein v Amchem Products, Inc., 190159/2020. In addition to the joint opposition by all defendants, defendants Union Carbide Corporation, The Goodyear Tire & Rubber Company (hereinafter referred to as defendant "Goodyear Tire"), and DAP, Inc. submit individual opposition papers.

Defendant Union Carbide Corporation argues that there are laws and facts specific to it in the cases in which it is a defendant, joint trials are not permissible where plaintiff seeks punitive damages, and that plaintiff failed to satisfy the Malcolm factors or establish that consolidation would not confuse the jury and prejudice defendants. Defendant Goodyear Tire opposes the consolidation of the 3 actions in Group 4, but specifically opposing the consolidation of the Goldstein action with either, or both of, the Salinari Sr. or the Sanese actions, arguing that Mr. Goldstein does not share the necessary Malcolm factors sufficient for a joint trial, and that Mr. Goldstein had a significantly higher smoking history than either Mr. Salinari Sr. or Mr. Sanese, and that defendant Goodyear Tire is a defendant solely in the Goldstein action. Defendant Goodyear Tire further argues that plaintiffs medical causation expert in the Goldstein action differs from the medical causation expert in the Salinari Sr. and Sanese actions. Defendant DAP, Inc. argues that it is only a defendant in the Goldstein case, that it was not afforded the opportunity to participate in discovery in the Salinari Sr. and Sanese actions, and that consolidation of the actions would result in the jury overlooking defendant DAP, Inc. 's general causation defense as to its specific product at issue only in the Goldstein action.

However, despite the defendants' contentions, in reviewing all the Malcolm factors, the Court finds that plaintiffs, Mr. Salinari Sr., Mr. Sanese, and Mr. Goldstein, were all exposed to asbestos through their employment and through their handling of similar materials and equipment such as vinyl floor tiles, joint compound, and sheet rock. Mr. Salinari, Sr. and Mr.

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Sanese were additionally exposed to pumps, valves, gaskets, and insulation. Moreover, these 3 plaintiffs have similar times of exposure in that Mr. Salinari Sr. was exposed to asbestos from 1955 to the mid 1970's, Mr. Sanese was exposed to asbestos from 1957 to 1979, and Mr. Goldstein was exposed to asbestos from 1955 to 1992. Additionally, all 3 plaintiffs developed lung cancer from which all 3 plaintiffs are currently battling, the discovery in all of these actions are complete, and the 3 plaintiffs have the same counsel. Counsel for the opposing defendant Union Carbide Corporation represents such defendant in all 3 actions. Thus, six of the eight Malcolm factors have been satisfied.

As to Group 5, plaintiff seeks to consolidate Ober v Amchem Products, Inc., 190465/2018, with Burns v AO Smith Water Products Co., 190016/2019, and Sudano v AO Smith Water Products Co., 190175/2017. Despite the defendants' contentions, after reviewing all the Malcolm factors, Mr. Buckley, Mr. Burns, and Mr. Ober were all exposed to asbestos through their employment and through their handling of similar materials and equipment such as boilers, pumps, valves, gaskets, and insulation. These 3 plaintiffs also have similar times of exposure in that Mr. Buckley was exposed to asbestos from 1969 to 2011, Mr. Burns was exposed to asbestos from 1958 to 2013, and Mr. Ober was exposed to asbestos from 1974 to 1994.

Moreover, the 3 plaintiffs developed lung cancer from which all 3 plaintiffs subsequently passed away, the discovery in these actions are complete, and the 3 plaintiffs have the same counsel.

Additionally, defendants Burnham LLC, ITT LLC, and Peerless Industries, Inc. are common defendants. Thus, six of the eight Malcolm factors have been satisfied.

As to Group 6, plaintiff seeks to consolidate Mooney v Amchem Products, Inc., 190249/2019, with Cloonan v Aerco Int 'l, Inc., 190014/2019. Despite defendants' contentions, after reviewing all the Malcolm factors, the Court finds that plaintiffs, Mr. Mooney and Mr.

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Cloonan were both exposed to asbestos through their employment, of which they both worked at the Astoria powerhouse. Both plaintiffs maintained, repaired, and inspected pipes and worked with other similar materials such as gaskets and insulation. Moreover, Mr. Mooney and Mr. Cloonan' s overlapping period of exposure spanned two decades from the 1960s to the 1980s.

Additionally, both plaintiffs developed lung cancer from which both plaintiffs subsequently passed away, the discovery in both actions are complete, and the plaintiffs have the same counsel. Thus, at least six of the eight Malcolm factors have been satisfied.

There are common issues of law and fact in these 6 groups of actions. The CMO explicitly states that the Court may order joinder of cases based upon the Malcolm factors and that not all such factors must be present. Here, the Malcolm factors supportjoinder of these actions separated into the 6 groups detailed above. As Hon. Manuel Mendez previously held, "[j]udicial economy would be served by consolidating the actions of deceased plaintiffs with mesothelioma and whose exposure was related to their work on similar products .... In these case consolidations: (1) the central issue is the same; (2) it is the same Plaintiffs' counsel in the actions; (3) the Plaintiffs suffered from the same disease; (4) the Plaintiffs in the group are all deceased; and (5) the Plaintiffs were exposed .. .in a similar manner." Haley v ABB, Inc., 190150/19, mot. 008, dated December 11, 2019. Moreover, the CMO specifically permits the joint trial of three actions where, as here, three or more of the Malcolm factors have been met and the three plaintiffs share the same disease. Although the plaintiffs did not share common worksites, this does not preclude joinder of the cases for trial. Adequate safeguards can be put in place during the trial to avoid juror confusion and specific instructions may be given to address defendants' concerns. Moreover, the CMO specifies that "[a] plaintiff may drop a claim for punitive damages at the time of a motion for joinder in order to enable a case to be joined with

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Accordingly, it is ORDERED that plaintiffs motion seeking joint trials is granted; and it is further ORDERED that a joint trial is granted as to Servedio v AO Smith Water Products Co., 190144/2018 and Funicello v Amchem Products, Inc., et. al., 190247/2019; and it is further ORDERED that a joint trial is granted as to Frankini v Aerco Int'!, Inc., et. al., · 190165/2020 and Bomzer v A.F. Rockland Plumbing, et. al., 190019/2020; and it is further ORDERED that a joint trial is granted as to McCabe v ABB, Inc., 190036/2019, Moore v AO Smith Water Products Co., 190054/2017, and Surace v Amchem Products, Inc., 190017/2014; and it is further , ORDERED that a joint trial is granted as to Salinari, Sr. v Air & Liquid Systems, 190151/2019, Sanese v AO Smith Water Products Co., 190190/2013, and Goldstein v Amchem Products, Inc., 190159/2020; and it is further ORDERED that a joint trial is granted as to Ober v Amchem Products, Inc., 190465/2018, Burns v AO Smith Water Products Co., 190016/2019, and Sudano v AO Smith Water Products Co., 190175/2017; and it is further ORDERED that a joint trial is granted as to Mooney v Amchem Products, Inc., 190249/2019 and Cloonan v Aerco Int'!, Inc., 190014/2019; and it is further

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ORDERED that, within thirty days of entry, plaintiff shall serve a copy of this order upon all parties, together with notice o_f entry.

This constitutes the Decision/Order of the Court.

12/27/2023 DATE ADAM SILVERA, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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