We have managed to pretty much avoid asbestos litigation. Sure, we encounter decisions from asbestos cases that sometimes impact our own cases.
They even sometimes appear in our posts, but rarely as a focus. We have been less successful in avoiding consolidation of drug and device cases for trial. Some courts that tend to favor multi-plaintiff trials are informed by experience from asbestos litigation. Plaintiff lawyers, informed by whatever past experience makes them think there is a route to bigger verdicts and bigger settlements, often favor consolidating cases for trial. To us, the plaintiff preference seems driven by the prospect of a jury being more sympathetic to several plaintiff themes when there are multiple injured plaintiffs in front of them throughout trial, especially if having a sicker plaintiff in the mix will drive up damages for the rest. Plus, notwithstanding limiting instructions, the breadth of liability evidence tends to expand with each plaintiff. Meanwhile, courts seem to mostly consider their dockets, accepting as given that trying cases together will get the number of pending cases down faster than would trying cases individually. We had a case sent our way on consolidation in asbestos litigation and, given a combination of a paucity of blogworthy cases, our interest in the subject, and an impending vacation, we decided to post on it.
From In re: New York City Asbestos Litig., No. 190411/13, 2015 N.Y. Misc. LEXIS 2634 (N.Y. Sup. Ct., N.Y. Cty., July 24, 2015), we learned that there is a pretty developed law governing whether to consolidate asbestos cases for trial. Without really digging in, we would say that it is more developed and detailed than the law on consolidating drug or device cases for trial and offers some principles that might work fairly well for our cases. NYCAL—that is what we will call it—concerned whether to put together two plaintiffs in each of two trials based on six factors identified in Malcolm v. National Gypsum Co., 995 F.2d 346, 350-53 (2d Cir. 1993). Not all the Malcolm factors will have a direct parallel to drug or device cases, but they are a good start: 1) common or similar worksite, 2) similar occupations, 3) same exposure period, 4) same disease, 5) living or dead plaintiffs, and 6) extent of overlap between defendants. Beyond the enumerated factors, though, the court should consider both judicial economy and the “paramount concern for a fair and impartial trial.” 2015 N.Y. Misc. LEXIS 2634, *9 (citation omitted). In a well-expressed quote from another asbestos case, “The systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each individual plaintiff s – and defendant’s – cause not be lost in the shadow of a towering mass litigation.” Id. (citation omitted).Continue Reading Considering Consolidating Cases for Trial