Heather Isringhausen Gvillo Oct. 21, 2014, 10:52am

PROVIDENCE, R.I. (Legal Newsline) – A Rhode Island judge has held that consolidation was proper in two asbestos cases with similar allegations and work sites.

Justice Alice B. Gibney consolidated the two cases on Oct. 10 in Rhode Island Superior Court.  

Plaintiffs Maureen Gallagher, executor of the estate of Dennis Gallagher, and Constance Podedworny, executrix for the estate of Joseph Podedworny,” moved for consolidation alleging the decedents’ were exposed to asbestos containing product, Limpet, which was allegedly sprayed on the turbines at Narragansett Electric. Because both decedents worked in the same facility and were allegedly exposed to asbestos in the same manner, the claimants argued consolidation was proper. The court agreed, granting the motion for consolidation.

“The court finds that efficiency, judicial economy and preservation of resources will be achieved by consolidating these cases,” Gibney wrote. “Furthermore, this court finds that consolidation is warranted because common issues of fact and law, as described by applying the factors above, are present in the instant cases.”

Podedworny was employed by Narragansett Electric from 1952 to 1984 while Gallagher was employed at the same facility from 1984 to 2004.

Both were diagnosed with mesothelioma and later died from their injuries.  

On the other hand, several defendants named in the lawsuits claim the case should not be consolidated because they do not involve common issues of fact or law.

The defendants explain that Gallagher and Podedworny have different exposure histories and did not even work at Narragansett Electric at the same time.

They also argued that consolidation would not be proper because the plaintiffs would have to call additional witnesses unique to each case, which could confuse the jury.

Additionally, the defendants alleged that a consolidated trial where two plaintiffs are suing the same defendant is prejudicial “because the jury may be led to believe that there is ‘truth in numbers.’”

When deciding whether consolidation was proper, the court applied an eight-factor test, which ultimately revealed that consolidation is warranted.

For starters, Gibney noted that both plaintiffs are deceased and shared a common disease – mesothelioma.

“Although their courses of treatment were different – Gallagher underwent an extrapleural pneumonectomy – there is no evidence that a jury could not fairly assess or comprehend such testimony,” the court held.

Gibney also explained that both decedents shared a common worksite – the Narragansett Electric facility.

“Here, two plaintiffs both spent significant portions of their working lives in the same facility,” Gibney explained.

Furthermore, even though Gallagher spent a number of years working at Electric Boat, the court does not believe a jury would be “incapable of assessing his previous exposure.”

Gallagher’s case would involve additional testimony regarding previous exposures at other locations, but the jury will only consider Gallagher’s previous exposure at two jobsites, the court concluded.

In fact, the plaintiffs said they intend to call expert witnesses common to both cases.

“The court agreed that the circumstances pose nowhere near the potential for jury confusion as other cases did,” the order states.

While the two decedents shared a similar worksite, they also share similar occupations.

Gallagher and Podedworny did not work in the same profession but were both allegedly exposed to asbestos fibers while working at the same facility.

“The fact that they performed different tasks is immaterial with respect to the nature of their exposure,” Gibney concluded. “Both men worked in the same building and allegedly inhaled the asbestos that had been sprayed on the turbines.”

Additionally, while the two decedents did not work at the facility during the same time, they did share similar times of exposure. In fact, they may have only worked together for a matter of days in 1984.

The defendants argue the varying times of exposure could confuse the jury through separate work histories and exposure periods.

However, Gibney wrote that the court does not see how consolidation of a span of 50 years would cause the jury confusion.

Regardless, the court still held that appropriate instructions will be required to prevent confusion and prejudice within the jury in relation to occupation and time of exposure factors.

The last standard Gibney addressed was status discovery, concluding that there may be further need for limited discovery, but the cases are “essentially trial ready.”

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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