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

Silviano v A.O. Smith Water Prods. Co. 2024 NY Slip Op 30902(U) March 18, 2024 Supreme Court, New York County Docket Number: Index No. 190242/2019 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. 190242/2019 NYSCEF DOC. NO. 521 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice ·-----------------X INDEX NO. 190242/2019 JO-ANN SILVIANO AS EXECUTRIX FOR THE ESTATE OF KENNETH LAST, MOTION DATE 01/17/2024 Plaintiff, MOTION SEQ. NO. 007 - V - A.O. SMITH WATER PRODUCTS CO., AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR-BY- MERGER TO BUFFALO PUMPS, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC.,AMERICAN BILTRITE INC.,ARCONIC, INC, AURORA PUMP COMPANY, BIRD INCORPORATED, BLACKMER, BORGWARNER MORSE TEC LLC,BURNHAM, LLC, INDIVIDUALLY, AND AS SUCCESSOR TO BURNHAM CORPORATION, BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CBS CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, CERTAINTEED CORPORATION, COMPUDYNE CORPORATION, INDIVIDUALLY, AND AS SUCCESSOR TO YORK SHIPLEY, INC.,CRANE CO, CROWN BOILER CO., F/K/A CROWN INDUSTRIES, INC.,DAP, INC.,DOMCO PRODUCTS TEXAS, INC.,FLOWSERVE US, INC. SOLELY AS SUCCESSOR DECISION + ORDER ON TO ROCKWELL MANUFACTURING COMPANY, MOTION EDWARD VALVE, INC.,NORDSTROM VALVES, INC.,EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN PUMP BUSINESSES, FORT KENT HOLDINGS, INC., FORMERLY KNOWN AS DUNHAM-BUSH, INC.,FOSTER WHEELER, L.L.C., GARDNER DENVER, INC.,GENERAL ELECTRIC COMPANY, GOULDS PUMPS LLC,GRINNELL LLC,HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC./ BENDIX, IMO INDUSTRIES, INC.,, INTERNATIONAL PAPER COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO CHAMPION INTERNATIONAL CORPORATION, AS SUCCESSOR TO UNITED STATES PLYWOOD CORPORATION, ITT INDUSTRIES, INC. INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO HOFFMAN SPECIALTY, ITT LLC., INDIVIDUALLY AND AS SUCCESSOR TO BELL & GOSSETT AND AS SUCCESSOR TO KENNEDY VALVE MANUFACTURING CO., INC.,J-M MANUFACTURING COMPANY, INC,

190242/2019 LAST, KENNETH vs. A.O. SMITH WATER PRODUCTS CO., Page 1 of 5 Motion No. 007

KAISER GYPSUM COMPANY, INC.,KOHLER CO., LEVITON MANUFACTURING CO., INC, MANNINGTON MILLS, INC.,MARIO & DIBONO PLASTERING CO., INC, MORSE DIESEL, INC, NORTHROP GRUMMAN CORP. AS SUCCESSOR TO GEORGE A FULLER COMPANY, PEERLESS INDUSTRIES, INC, PFIZER, INC. (PFIZER), PNEUMO ABEX LLC,SUCCESSOR IN INTEREST TO ABEX CORPORATION (ABEX), PORT AUTHORITY OF NEW YORK AND NEW JERSEY, RHEEM MANUFACTURING COMPANY, SLANT/FIN CORPORATION, SPIRAX SARCO, INC. INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, TISHMAN LIQUIDATING CORP, TISHMAN REALTY & CONSTRUCTION CO., INC, TURNER CONSTRUCTION COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, UTICA BOILERS, INC., INDIVIDUALLY AND AS SUCCESSOR TO UTICA RADIATOR CORPORATION, VELAN VALVE CORPORATION, VIKING PUMP, INC, WARREN PUMPS, LLC,WEIL-MCLAIN, A DIVISION OF THE MARLEY- WYLAIN COMPANY, A WHOLLY OWNED SUBSIDIARY OF THE MARLEY COMPANY, LLC,WEYERHAEUSER COMPANY, IPA SYSTEMS, INC., Defendant. --------------------------- ----------------X The following e-filed documents, listed by NYSCEF document number (Motion 007) 496, 497, 498, 499, 500,502,503,504,505,506,507,510,511,512,515,516,517,518,519,520 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL

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

Here, plaintiff moves for a joint trial of two actions. Plaintiff seeks to consolidate the instant action with Joyce v AO Smith l+'ater Products Co .. el al., 190173/2020. 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 190242/2019 LAST, KENNETH vs. A.O. SMITH WATER PRODUCTS CO., Page 2 of 5 Motion No. 007

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).

Plaintiff argues that consolidation of the cases for joint trial as specified above is appropriate. Plaintiff contends that both plaintiffs, Kenneth Last and Patrick Joyce, were exposed to asbestos during their employment as carpenters. Plaintiffs were also exposed during their work assisting auto mechanics, working on similar equipment, i.e. brakes and clutches. Plaintiff further contends that both plaintiffs developed plural mesothelioma and are deceased. Moreover, the discovery in both of these cases have been completed, and both plaintiffs are represented by the same counsel.

Defendants Union Carbide Corporation, Mario & DiBono Plastering Co., and Tishman Realty & Construction Co., Inc. oppose the instant motion, arguing that plaintiff failed to meet the burden to establish sufficient commonalities amongst the two actions. Specifically, opposing defendants contend that there is no commonality as to the plaintiffs' worksite, occupation, years of exposure, and defendants.

Here, reviewing all the Malcolm factors, the Court finds, and it is undisputed, that plaintiffs, Mr. Last and Mr. Joyce, were both exposed to asbestos through their employment as

190242/2019 LAST, KENNETH vs. A.O. SMITH WATER PRODUCTS CO., Page 3 of 5 Motion No. 007

There are common issues of law and fact in both 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 the two actions. 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. As stated above, 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.

Thus, plaintiffs motion seeking a joint trial is granted as to the instant action with Joyce v A 0 Smith Water Products . er al., 190173/2020.

Accordingly, it is ORDERED that a joint trial is granted as to Last v AO Smith Water Products Co., et al., 190242/2019, and v .AO Smith Water Products ( ct ul., 190173/2020; and it is further ORDERED that, within thirty days of entry, plaintiffs shall serve a copy of this order

190242/2019 LAST, KENNETH vs. A.O. SMITH WATER PRODUCTS CO., Page 4 of 5 Motion No. 007

This constitutes the Decision/Order of the Court.

3/18/2024 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

190242/2019 LAST, KENNETH vs. A.O. SMITH WATER PRODUCTS CO., Page 5 of 5 Motion No. 007