## Facts

- Hundreds of asbestos personal-injury and wrongful-death actions were pending in federal court in the Eastern and Southern Districts of New York.
- The district court consolidated approximately 600 cases for pretrial purposes and selected 48 cases for a single jury trial.
- The 48 cases involved different plaintiffs, worksites (including multiple New York power stations), occupations, exposure periods, diseases, and sets of defendants.
- Trial proceeded on a reverse-bifurcated basis, trying damages before liability, and lasted more than 10 months.
- Each plaintiff sued many defendants; numerous third-party defendants were also impleaded, adding substantial complexity.
- Most cases settled during trial; by the time of verdict, only two plaintiffs’ claims remained for decision, including the claim brought by Roberta Kranz as executrix of the estate of Lee Lewis.
- The jury awarded substantial damages across the consolidated proceeding and apportioned liability among multiple defendants in the remaining cases.
- In the Lewis case, the jury allocated Keene Corporation 9% liability, and judgment of about $226,038.49 was entered against Keene for personal injury, wrongful death, and loss of consortium.
- Keene argued the consolidation overwhelmed the jury, leading to confusion and an inability to separate proof by plaintiff and by defendant.

## Issues

1. Whether consolidating 48 asbestos actions for a single reverse-bifurcated trial under Federal Rule of Civil Procedure 42(a) was an abuse of discretion because the cases were too dissimilar.
2. Whether the consolidation created undue prejudice and jury confusion such that Keene was denied a fair trial, requiring reversal and a new trial.

## Decision

- The Second Circuit reversed the judgment against Keene and remanded for a new trial.
- The court held that consolidating 48 heterogeneous asbestos cases for one jury trial was improper and prejudicial.
- The court concluded the risk of jury confusion and spillover prejudice could not be cured by instructions, trial management, or the reverse-bifurcated structure.
- The court treated the pattern of near-equal liability allocations, despite materially different proof as to defendants, as circumstantial support for confusion in the consolidated format.

## Legal Principles

- Rule 42(a) permits consolidation only when actions share common questions of law or fact, and consolidation must not impair a party’s right to a fair trial.
- Trial courts have discretion to consolidate, but that discretion is limited by the likelihood of jury confusion, evidentiary spillover, and unfair prejudice.
- In evaluating consolidation in asbestos and similar mass-tort settings, relevant considerations include: common worksite, similar occupation, similar exposure time frame, type of disease, whether plaintiffs are living or deceased, status of discovery, whether plaintiffs share counsel, and the type of cancer alleged.
- Efficiency and docket management cannot justify aggregation that prevents individualized determinations of liability and causation as to each defendant.

## Conclusion

The Second Circuit required a new trial because trying 48 dissimilar asbestos cases together created a substantial risk that the jury would conflate evidence and allocate liability without reliable defendant-specific findings, exceeding permissible consolidation under Rule 42(a).


Malcolm v. Nat’l Gypsum Co., 995 F.2d 346 (2d Cir. 1993)