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In Re New York City Asbestos Litigation, Lawrence Bernard, et al v. Brookfield Properties Corp.

New York Supreme and/or Appellate Courts Appellate Division, First Department


October 2, 2012

IN RE NEW YORK CITY ASBESTOS LITIGATION, LAWRENCE BERNARD, ET AL.,
PLAINTIFFS-RESPONDENTS,
v.
BROOKFIELD PROPERTIES CORP., ET AL.,
DEFENDANTS, COLGATE-PALMOLIVE COMPANY,
DEFENDANT-APPELLANT. LORI KONOPKA-SAUER, ET AL.,
PLAINTIFFS-RESPONDENTS,
v.
COLGATE-PALMOLIVE COMPANY,
DEFENDANT-APPELLANT. ARLENE FEINBERG, ET AL.,
PLAINTIFFS-RESPONDENTS,
v.
COLGATE PALMOLIVE COMPANY,
DEFENDANT-APPELLANT,
UNION CARBIDE CORPORATION,
DEFENDANT.

Matter of New York City Asbestos Litig.

Decided on October 2, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Sweeny, J.P., Catterson, Acosta, Freedman, Roman, JJ.

Order, Supreme Court, New York County (Martin Shulman, J.), entered March 1, 2012, which granted plaintiffs' motion to consolidate their respective actions for joint trial, unanimously affirmed, without costs.

Plaintiffs attempt to hold defendant Colgate-Palmolive liable for the alleged presence of mesothelioma-causing asbestos in the consumer cosmetic talcum powder product called "Cashmere Bouquet." The IAS court providently exercised its discretion in consolidating these actions for joint trial, as they involve common questions of law and fact (see CPLR 602[a]; Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 188 AD2d 214, 224-225 [1993], affd 82 NY2d 821 [1993]).

Defendant has not established that it will be prejudiced by consolidation of the cases. Contrary to defendant's contention, these cases do not present a novel scientific theory. Indeed, that a link has not yet been established between consumer talcum powder and mesothelioma-causing asbestos does not render plaintiffs' theory an immature tort, particularly where the link has been established in the use of industrial talc (see e.g. R.T. Vanderbilt Co., Inc. v Franklin, 290 SW3d 654 [Ky 2009]).

We reject defendant's contention that separate trials are required because a different state's law will apply to each plaintiff. Defendant has not yet asked the IAS court to undertake a choice-of-law analysis on the issue of causation; thus, it would be premature to deny the motion on this ground. In any event, even if the IAS court concludes that the laws of the different states must apply to the different plaintiffs, New York, Oregon, and Florida (the states at issue) have the same standard with regard to proving causation in asbestos-exposure cases (see e.g. Diel v Flintkote Co., 204 AD2d 53, 54 [1994]; Purcell v Asbestos Corp., Ltd., 153 Or App 415, 422-423 [1998], lv denied 329 Or 438 [1999]; Reaves v Armstrong World Indus., Inc., 569 So2d 1307, 1309 [Fla 1990], lv denied 581 So2d 166 [Fla 1991]). Moreover, defendant has not demonstrated why the purported differences in the various states' laws cannot be cured with appropriate jury instructions.

Nor are separate trials required because of factual differences in plaintiffs' cases. The individual issues do not predominate over the common questions of law and fact -- namely, whether asbestos was present in the consumer talcum product used by plaintiffs and whether defendant should have been aware of its presence. Under these circumstances, the IAS court rightly concluded that the facts here are on all fours with the criteria set forth in Malcolm v National Gypsum Co. (995 F2d 346, 350-352 [2d Cir 1993]), as there is a common disease, a common defendant and a common type of exposure by the three plaintiffs.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 2, 2012

CLERK

20121002

© 1992-2012 VersusLaw Inc.



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