NEW YORK - An asbestos case in which a justice recently ruled that plaintiffs do not need to share specific worksites, exposures or even necessarily a common disease to be joined for trial has settled (In the Matter of New York City Asbestos Litigation. Philip Altholz, et al. v. American Standard Inc., et al., No. 102034/05, N.Y. Sup., New York Co.).

According to sources, the case settled Feb. 15. New York County Supreme Court Justice Martin Shulman issued his order allowing the consolidation of most of the original joined plaintiffs on Jan. 19.

Nine plaintiffs, all with similar occupations, time of exposure and types of worksite, were consolidated and assigned to the November 2005 in extremis asbestos cluster.

Opposition

Eight of the plaintiffs, Philip Altholz, Marion Czys, Curtis Eberhardt Jr., David Hunter, Eugene Light, William McCarthy, Sammy Paez and John Quinn alleged to have mesothelioma. Noel Steininger allegedly contracted lung cancer.

Forty-three defendants filed oppositions, alleging that the plaintiffs did not share a common worksite or occupation and that their exposures occurred over a 50-year period without a single, discrete time. The defendants also objected to the joining of Steininger, arguing that his lung cancer would lengthen the trial because it is substantially different from the other diseases.

The defendants also argued that they would prejudiced by pain and suffering evidence entered by the living plaintiffs, that a trial would interfere with ongoing discovery and that no asbestos product is common to all the plaintiffs.

Commonalities

In affirming most of the consolidation order, Justice Shulman said that although the plaintiffs do not present precise commonalities, there is still sufficient overlap to join their trials.

Justice Shulman held that the defendants will not be prejudiced by the pain and suffering of the surviving plaintiffs as they are all terminally ill and will suffer the same fate.

Further, because eight of the plaintiffs share the same disease, adding a single lung cancer claim should not cause undue delay or confuse the jury, he said. Justice Shulman also held that the law does not require that plaintiffs in consolidated cases share common occupations or exposures.

Also, it is expected that these plaintiffs will share common state of the art and other testimony and also share common bankrupt defendants and absentee tortfeasers, the justice noted.

Severed

Justice Shulman ruled that Hunter should have his case severed because he is the only one who alleged bystander exposure in the 1940s. Justice Shulman said Hunter could be prejudiced if the jury fails to remember that his exposure came before much of the knowledge that will be presented in the case.

Further, the Czys case should also not be joined, Justice Shulman ruled. It is unclear in light of recent rulings whether Czys" secondary exposure case is even a viable claim, Justice Shulman said. Further, because Trump Management Inc. is the only premises owner defendant, it is possible that liability by the manufacturing, contracting and product distributing defendants could unfairly "splash" onto Trump, Justice Shulman ruled.

Finally, the McCarthy plaintiff should also be severed because his maritime exposure implicates federal maritime law and could prove confusing for the jury, he ruled.

Belluck & Fox in New York represents the plaintiffs.

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