Civil Procedure -- 2016

Konstantin v. 630 Third Avenue Assocs.   (New York Court of Appeals)

Opposing asbestos case consolidations in New York

The NAM and other groups filed an amicus brief Feb. 29, 2016, urging the highest court in New York to join the clear trend of other courts to substantially curb the consolidations of asbestos cases. Where individual cases are not legally and factually similar, combining them is unlikely to increase efficiency, and are highly prejudicial to the defendants.

The consolidated cases here were dramatically different, involving different worksites, different occupations, different products, different types and durations of exposure, different diseases, different plaintiff health statuses, different legal liability theories, and different defendants, counsel and witnesses. The lower court concluded there was sufficient commonality merely because both plaintiffs were "exposed to asbestos in a similar manner, which was by being in the immediate presence of dust" while working.

Joining together dissimilar cases leads to guilt by association with inflammatory facts that are not present in all the cases. It can bolster weak claims because juries may assume that if multiple plaintiffs allege injuries then the claims must have merit, even when they lack objective support. Jurors have difficulty differentiating the different kinds of asbestos fibers. Recent data suggests that consolidated trials create administrative and jury biases that result in more verdicts at abnormally large amounts.

The NAM brief outlined a variety of other factors during trial that are affected when multiple parties are lumped together for litigation. These raise serious due process concerns, and produce few, if any, efficiencies in the process.

On 6/29/16, the court rejected this challenge, holding that the issue was not properly brought up on appeal. This move is likely to further prejudice the remaining defendants.

Related Documents:
NAM amicus brief  (February 29, 2016)


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