Asbestos Mesothelioma Disease Trial Consolidating Multiple Cases*

This is a review of a Pre-Trial hearing on a Motion for Joinder filed by four plaintiffs in their respective cases against one defendant. Each plaintiff previously filed a separate lawsuit against the same defendant. In their respective lawsuits each plaintiff contended they contracted asbestos mesothelioma disease while working for the defendant.

In each lawsuit, each plaintiff was represented by separate counsel. Realizing the economy and advantage of trying the lawsuits together, the plaintiffs' attorneys filed respective motions to join each of their cases into one.

The defendant, in turn, opposed the motion for joinder, claiming that the plaintiffs' cases were too different and that joining them together would allow the plaintiffs' attorneys to "gang up" on the defendant.

Statement of Facts...

Adrian MacAfee, Angelo Lord, Thomas Boyd, and Nacio Laura had all worked as pipe fitters aboard oil tankers operated by the BT Water Products Corporation during the eighties and early nineties. Each man was subsequently diagnosed with asbestos mesothelioma disease, and two of the men, MacAfee and Lord, had died from the illness in 2009.

Separately, each man or his estate had filed suit against BP claiming that asbestos in the boiler rooms of BT's tankers had led to the illness. Over the course of the proceedings, the attorneys for the plaintiffs and the defendant agreed on the following facts:

• Each plaintiff worked for BT between 1980 and 1995 aboard three of BT's oil delivery tankers.


• Each plaintiff was exposed to asbestos in these ships' boiler rooms.


• Angelo Lord and Adrian MacAfee worked on the same ship during the same time period. Nacio Laura and Thomas Boyd worked at different time intervals on separate BT tankers.


• The men's exposures overlapped from the 80's through the mid 90's, although none at identical times.


• The defendant owned each ship upon which each plaintiff worked. Each plaintiff worked as a pipe fitter, and during the times each plaintiff worked they were under the employ of BT.


• Each plaintiff suffered from asbestos mesothelioma disease.

Because of the similarities of their cases, the plaintiffs decided to ask the court to join them together.

The Hearing...

In their motions, the plaintiffs cited the economy of time and advantages the parties would enjoy if the cases were permitted to be tried at the same time, with the same jury, and against the same defendant.

The plaintiffs contended they and the defendant would benefit equally by having the cases tried at one time, and that neither the individual plaintiffs nor the defendant would be harmed as a result.

The plaintiffs went on to bring to the court's attention the unnecessary and additional expenses the court would suffer by trying the cases separately. They pointed out the duplication of expert testimony and duplication of supporting evidence the court would be required to endure if each lawsuit were to be tried separately.

The plaintiffs also argued that if the cases were tried together, they could be resolved in less than three months while it would take the courts at least eight months to hear the cases separately.

To further bolster their argument, the plaintiffs cited two specific court decisions they felt supported their position:

In the first, Castle, et al v. Jones Blyer Paint Company, et al SW 2nd, 164,165, Sup Ct. Rept .1979, the court found:

Whenever there are common questions of law and fact in actions before the court, the court may order joint trials in order to avoid unnecessary costs or delay.

They also cited Underwood v. Allen Industries, SW 3rd, 210-216, Sup Ct.Rept.1982 which held:

It requires little imagination to recognize that without consolidation, the courts are simply incapable of handling litigation of such volume. The waste of time and expense involved to decide the same sorts of questions over and over again is staggering.

This is all the more true when one recognizes that each successive jury must be educated by expert witnesses to understand the toxicity of asbestos fibers, the etiology of asbestos induced diseases, the state-of-the-art regarding the industry's knowledge of these dangers through the years, and the economic issues involving loss of services and future income that recur frequently in these cases.

BT, on the other hand, argued that even though the cases could be settled faster if they were tried together, the cases themselves were simply too different to be grouped into one suit.

In their Motion in Opposition to the Plaintiffs' Motion for Joinder, BT noted the differences in facts in each plaintiff's case, They pointed out differences in the alleged sources of the material that led to the asbestos mesothelioma disease, the compensation requested by the plaintiff, and the different periods of time and locations of each plaintiffs' employment.

BT also contended that trying the cases as one would be unfairly prejudicial. As support for its contention the defendant cited the "ganging up" effect of having four plaintiffs with at least four attorneys sitting in court all lined up literally and figuratively on one side of the courtroom

The defendant went on to argue one jury would not be able to absorb all of the information from four plaintiffs and the defendant's offers of proof without being overwhelmed. If they become overwhelmed, the defendant argued, the jury will become confused. That confusion will result in a decision which would neither be appropriate to the facts or fair to the defendant.

They also cited two specific cases: 

Coehlo, et al v. Somner Industries, SW 3rd, 97,98, Sup Ct.1964 where the court found:

Cost and efficiency is required in those cases in which several defendants have been injured by one and the same party under similar circumstances. But the cost and efficiency must be weighed against the possibility of unfair prejudice.

and Whitney v. the State of Oklahoma, SW 3rd, 1321-1333, Sup. Ct, 1958:

The extrapolation of the costs inherent in multiple-party litigation may be considered by the court, but in determining the fairness of joinder of parties the court must tread very carefully so as to not substitute economy for equality.

Outcome...

After both sides rested, the Court considered the arguments presented and found as follows:

In determining the fairness of joinder the court has considered the facts and the law we find applicable to the case before us. The considerations we use as guidelines to determine fairness to the parties in this case include, but are not limited to:

1. The plaintiffs' common worksites


2. The plaintiffs' similar occupation


3. The plaintiffs' similar time of exposure


4. The similar contraction of asbestos mesothelioma disease


5. The duplication of pre-trial discovery


6. The duplication of expert testimony


7. The similar issues to be tried in each lawsuit

The court has heard evidence, primarily through the stipulation of the parties that the plaintiffs all contracted the same lung disease. Although there remains to be tried in the actual lawsuit the question of liability, we believe the evidence leads us to the conclusion all parties will be best served by a joinder of issues and lawsuits.

With respect to the juries we believe note taking in trial notebooks will help the jurors separate out the facts for each plaintiff and for the defendant. Additionally, at the conclusion of trial the court will instruct the jury with curative and clarifying instructions to assist them in a clear separation of the facts and the law as it pertains to each plaintiff and the defendant. These tasks may not be easy, but we believe in each juror's ability to ultimately discern the truth.

We therefor grant the Plaintiffs' Motion for Joinder.