Preview
ASB-FBT-CV-22-6113987-S : SUPERIOR COURT
:
LUCILLE MUNSELL, executrix of the estate of :
Stephen Munsell, et al. : J.D. OF FAIRFIELD
:
VS. : AT BRIDGEPORT
:
ROGERS CORP., et al. : March 5, 2024
PLAINTIFFS’ REPLY TO DEFENDANT, ROGERS CORPORATION’S,
OBJECTION TO MOTION TO CONSOLIDATE CASES FOR TRIAL
I. Introduction:
In the Fall of 2022, this Court presided over a consolidated trial involving 15
plaintiffs (including separate families and an FBI agent) against conspiracy theorist Alex
Jones and his media company, Infowars. The jury was required to hear evidence from a
multitude of individuals, each with their own traumatic story and each with uniquely
devastating, heartbreaking damages. The jury was ultimately asked to award damages for
two separate tortious acts – defamation and emotional distress – to each of those 15 plaintiffs,
which the jury ultimately did, successfully and without confusion. Here, in its Objection to
the plaintiffs’ Motion to Consolidate, the defendant, Rogers Corporation, strains mightily to
conjure non-trivial differences between the four cases – Tomko,1 Dusto,2 Bacon,3 and
1
Thomas Tomko, et al. v. Union Carbide Corp., et al., ASB-FBT-CV-22-6113982-S.
2
Lana Kelly, executor of the estate of Harold Dusto, et al. v. Rogers Corp., et al., ASB-FBT-CV-19-6086883-S.
3
Daniel A. Bacon, executor of the estate of Wesley Bacon v. Rogers Corp., et al., ASB-FBT-CV-22-6114158-
S.
1
Munsell4 – that would make a difference in the Court’s calculus about consolidation.
However, consolidating these cases for trial is fair and it fundamentally makes sense. The
four men were all co-workers at the same factory, during overlapping periods of time,
exposed to the same asbestos, from the same processes, with the same employer, the same
historical context, overlapping state-of-the-art, the same witnesses, the same testimony, and
the same or similar diseases. Indeed, if a trial court cannot consolidate these four cases it
would be hard to imagine any cases more suitable for consolidation.
II. Argument:
A. The cases have far more than “superficial commonalities.”
These cases belong together. For all non-trivial intents and purposes, they are the
same case. The story of Rogers Corporation is one consistent story that needs to be told in its
entirety for proper context. Over a period of decades, Rogers Corporation deceived its
workers, deceived the workers’ union representatives, deceived safety inspectors, deceived
customers, deceived the public, gave workers the wrong respirators, failed to notify workers
of overexposures, violated federal laws, violated state laws, created a profoundly dangerous
working environment, and effectively “disabled” federal regulations, all of which inevitably
led to a latent epidemic of asbestos-related disease among its plantworkers. Rogers created
4
Lucille Munsell, executrix of the estate of Stephen Munsell, et al. v. Rogers Corp., et al., ASB-FBT-CV-22-
6113987-S.
2
the dangerous conditions and knew to a substantial certainty that asbestos-related disease
would afflict its workers. These cases are about four of those workers.
The defendant argues that the four cases only have “superficial commonalities” and
have “significant material distinctions” that caution against consolidation, but those
arguments strain credulity. Yes, there are trivial differences between the four plaintiffs: they
are different ages; they worked during a range of years; they even had a variety of jobs. The
key point, however, is not where they worked, or when they worked, or how long they
worked. The key point is that all of them were exposed to asbestos at Rogers Corporation in
the course of Rogers’ handling and use of asbestos, all of which released asbestos fibers into
the air, which the plaintiffs breathed and which caused their injuries. The nature of the
process does not matter. What matters is that the various processes caused the release of
asbestos into the air, which posed a grave health hazard to anyone exposed to it. Whether the
beaters released the asbestos, or the handling of bags in the warehouse released the asbestos,
or the extruder machines released the asbestos, or the sweeping of dust released the asbestos,
the relevant point is that all of these processes released asbestos into the air and each of the
four men was exposed to it.
The defendant’s micro-focus on the exact work process of each individual plaintiff
misses the larger point. It does not matter whether one plaintiff worked in the extrusion
department or another plaintiff worked in the GLP department or another worked in the
warehouse. What truly matters is that each of the plaintiffs was exposed to asbestos,
3
regardless of the particular source. The micro-focus on the nature of the process is a
superficial distinction without a difference. The plaintiffs worked a variety of jobs, but each
job resulted in exposure to asbestos. The asbestos exposure is what matters, not the specific
process or location. For example, if a hypothetical worker had an exposure of 10 fibers/cc, it
does not matter whether that exposure originated from a beater or an extruder or a kneader or
from sweeping – what matters is the exposure, not the process. The defendant’s arguments
to the contrary are textbook examples of superficial distinctions.
Additionally, the defendant overstates the distinctions between the plaintiffs’ job
duties at the plant. Like many of the workers at the Rogers plant, these men moved
throughout the facility, often worked in the same departments, and were subjected to
exposures all over the plant, not just at the specific task they happened to be doing on a given
day. Mr. Dusto began his career in the extrusion department, then moved to GLP, then
DAP, then back to GLP, and even spent some time helping in the warehouse. Although Mr.
Dusto was never assigned to the matrix department, he walked through the area almost every
day to get to the parking lot, to get to the maintenance shop, or to get to the fork truck battery
station. Mr. Munsell started in the loft, then worked in extrusion, then as a beater helper (in
the matrix department), then back to extrusion, then back to the loft, then doing rotary trim
(back in the matrix department), then as a warehouse worker and truck driver. Mr. Bacon
first worked in extrusion, then transferred to the matrix department. Mr. Tomko worked as
4
an electrical maintenance worker whose job duties took him to every department in the plant,
including extrusion, GLP, matrix and the warehouse.
All four of the men also spent time in other areas of the factory, walking from Point A
to Point B, going to the lunch room, using the restrooms, visiting friends in other
departments, and using the locker rooms. There was a central corridor that connected all the
departments and allowed for the free movement of personnel, fork trucks, and air currents. A
fair reading of all the evidence in the case reveals a small factory with a limited number of
employees who all moved throughout the building, intermingling, changing locations,
changing jobs, but all essentially breathing the same contaminated air.
B. There is no prejudice to Rogers.
Rogers argues that it would be prejudiced “because the jury would hear the full
spectrum of damages evidence, even in cases where a particular Plaintiff would not be
entitled to an award of one or more types of damages.” Objection, at 18. This type of
concern, however, is successfully handled in trials every day across this State.
First, juries are routinely given jury interrogatories that ask individual, specific
questions about the individual parties, whether there are multiple plaintiffs or multiple
defendants. In a trial with one plaintiff and multiple defendants, there are always separate
jury interrogatories that ask the jury to consider the liability and damages of those defendants
separately. Indeed, in this case there were originally multiple defendants and there is little
doubt that the defendants would have insisted on specific jury interrogatories tailored to each
5
of them in order to get individual findings of liability and damages. The same should hold
true for a consolidated case with multiple plaintiffs and a single defendant. A consolidated
trial will inevitably have jury interrogatories that expressly call out individual questions for
the jury to answer about each plaintiff.5
Second, in the event of a plaintiffs’ verdict, the jury will have a verdict sheet with
individual line items for damages for each plaintiff, compelling the jury to consider each
plaintiff individually and to award damages to the plaintiffs individually. Mr. Bacon, for
instance, will not have a line item for loss of consortium damages since he was not married.
Mr. Tomko will not have a line item for death damages since he is still living. Even in a case
involving only one worker, the jury would still have to parse out individual damages to the
worker himself and to his spouse for loss of consortium. These are routine, pedestrian,
logistical issues that juries have to confront in cases every day.
Third, the trial court will provide, as it does in every case, explicit instructions to the
jury during the jury charge about how to approach the issue of damages for each individual
plaintiff. This is true whether a case involves a husband and wife, each with their own types
5
Consider further, in some other hypothetical asbestos case in the Bridgeport Asbestos Litigation, it is routine
for plaintiffs to have multiple exposures in their lives, sometimes with very disparate facts – e.g., a plaintiff
could have exposure from his time as a machinist mate in the Navy and then additional exposure as a civilian
auto mechanic. The two exposures are very different and they would implicate very different defendants, but no
one ever disputes that those exposures and those defendants should be tried as a single case, despite significant
differences in the types of products, the types of exposures, the work environments, and the applicable laws. If
a single trial is good enough for disparate defendants, then a consolidated trial should be just as valid for
multiple plaintiffs against a single defendant where the cases all involve the same factory, the same processes,
the same witnesses, the same experts, the same state-of-the-art, etc.
6
of damages, or parents and their children, each with their own types of damages, or
consolidated plaintiffs each with their own damages.
Fourth, the trial court will be able to provide real-time, in-trial instructions to the jury
as evidence is being entered, instructing and reminding the jury as to the applicability of
damages evidence to each individual plaintiff. This type of precautionary (or curative)
instruction will assist the jury in understanding the evidence and will ensure that the jury
properly applies the correct damages evidence to its corresponding plaintiff.
In Eghnayem v. Boston Scientific Corp., the U.S. Court of Appeals for the Eleventh
Circuit upheld a decision to consolidate several product liability cases, holding that any
prejudice and confusion of the jury was alleviated by “utilizing cautionary instructions to the
jury during the trial and controlling the manner in which the plaintiffs’ claims (including the
defenses thereto) are submitted to the jury for deliberation.” Eghnayem v. Boston Scientific
Corp., 873 F.3d 1304, 1314 (11th Cir. 2017) (citations omitted, internal quotation marks
omitted), citing Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir. 1985)
(upholding the consolidation of several asbestos claims). In Hendrix, the court held that the
consolidated claims were “precisely the kind of tort claims a court should consider
consolidating for trial. . . . A joint trial saved the appellants from wasteful relitigation,
avoided duplication of judicial effort, and did not materially prejudice appellants’ rights.”
Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1497 (11th Cir. 1985) (citations
omitted; emphasis added).
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C. The jury will not be confused or misled.
It is belittling and demeaning to the jury to assert that the jury will be “confused” by
the presentation of evidence in a consolidated trial. The vast majority of the evidence in
these cases will be identical – the same state-of-the-art evidence, the same historical context,
the same factual evidence about the factory and its processes, the same testimony from the
same lay witnesses, the same testimony from the same expert witnesses, the same testimony
from the same corporate representative, the same documentary evidence, the same OSHA
regulations, the same state laws, and the same legal standard governing the cases. The only
evidence that will vary will be the specific testimony about each individual plaintiff’s
damages, and even that will largely overlap – four cancer cases, three of which are
mesothelioma; three deaths; pain and suffering; and medical treatments. In the context of the
larger story about Rogers Corporation and the plaintiffs’ burden of proof in these Suarez
cases, the essential elements of the claim involve Rogers Corporation – its conduct, its
knowledge, the conditions in its factory – not the individual plaintiffs. There is a single
unified story to tell about Rogers Corporation, punctuated by the individual damages to the
four plaintiffs.
In Keil v. Doe, the U.S. Court of Appeals for the Eighth Circuit upheld the
consolidation of several cases as consolidation promoted judicial efficiency and outweighed
the minimal prejudice. Keil v. Doe, 2023 U.S. App. LEXIS 6250 (8th Cir. 2023) (attached as
Exhibit 1). The Court found there was insufficient evidence of jury confusion when the cases
8
were consolidated, noting that identical damages were insufficient to show confusion. Id.
The court cited to Eghnayem v. Boston Scientific Corp., 873 F.3d 1304 (11th Cir. 2017),
supra, for the proposition that consolidation does not lead juries to believe plaintiffs’ claims
are more likely to be true. In Campbell v. Boston Scientific Corp., 882 F.3d 70 (4th Cir.
2018), the Fourth Circuit upheld the consolidation of four product liability cases holding that
the lower court was
well within its discretion in consolidating these four cases for trial. To hold
otherwise would be to sacrifice the substantial savings of time and money that
consolidation offers. Both plaintiffs and defendants benefit from lessened
litigation costs and the reduced need for expert testimony. Witnesses benefit
from reduced demands on their time by limiting the need for them to provide
repetitive testimony. The community as a whole benefits from reduced
demands on its resources, including reduced demand for jurors. The judicial
system benefits from the freedom consolidation affords judges to
conscientiously resolve other pending cases.
Id. at 76.
D. The plaintiffs need to prove “substantial certainty” with respect to
employees generally, not with respect to each specific plaintiff.
The Court should not consider the defendant’s argument about the plaintiff’s burden
of proof, or any argument about the precise elements of the legal standard. Those issues are
not relevant considerations on a motion to consolidate cases and, even if they were, the
defendant’s interpretation of the legal standard is incorrect.
First, questions surrounding the legal standard and the specific elements of proof
should be left for the trial judge. The Appellate Court remanded the Dusto case for trial and
9
the other three cases are bound by the same law. See Dusto v. Rogers Corp., 222 Conn. App.
71 (2023). The plaintiffs will submit their evidence and the trial judge will have to make a
determination either at the close of the plaintiffs’ case-in-chief or after a jury verdict to
determine whether the plaintiffs have met their legal burdens. Regardless, quibbling about
the finer points of the legal standard is not an appropriate consideration at this stage of the
proceedings.
Second, the defendant’s interpretation of the legal standard is incorrect. As the
Appellate Court stated in Dusto, “satisfaction of the substantial certainty exception requires a
showing of the employer’s subjective intent to engage in activity that it knows bears a
sustantial certainty of injury to its employees.” Id. at 82 (quoting Lucenti v. Laviero, 327
Conn. 777 (2018)) (emphasis added). The Appellate Court restated this standard in its own
words, ultimately determining that a plaintiff needs to prove, “in light of the totality of the
evidence presented, a jury could reasonably infer that the employer subjectively believed that
its conduct was substantially certain to result in injury to its employees.” Id. at 101
(emphasis added). The proper standard is not whether Rogers Corporation knew to a
substantial certainty that harm would come to the specific individual, but whether harm
would come to one or more of its employees who were subjected to the dangerous conditions.
Regardless, considerations of the proper legal standard and arguments about the
burden of proof are not appropriate, or relevant, considerations on a motion to consolidate.
The defendant’s non sequitur arguments should be ignored by the Court.
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III. Conclusion:
These cases should be consolidated for trial. “The public’s interest in avoiding
unnecessary litigation and conserving scarce judicial resources is too powerful a factor to
ignore.” Alpha Crane, 6 Conn. App. at 68 (quoting Nielson v. Nielson, 3 Conn. App. 679,
684 (1985)). Unnecessary duplication of litigation involving the same issues, the same
parties and the same witnesses serves no one’s interests.
WHEREFORE, the plaintiffs respectfully request that this Court consolidate these
four cases for trial.
Respectfully submitted,
THE PLAINTIFFS
By__/s/ 417342 ____________
Christopher Meisenkothen
Early, Lucarelli, Sweeney & Meisenkothen, LLC
One Century Tower, Suite 1101
265 Church St.
New Haven, CT 06510
203-777-7799 p
203-785-1671 f
11
CERTIFICATION
This is to certify that a copy of the foregoing was served this 5th day of March, 2024
to all counsel of record.
___s/417342___________
Christopher Meisenkothen
12
Exhibit List
Ex. # Exhibit
1 Keil v. Doe, 2023 U.S. App. LEXIS 6250
(8th Cir. 2023)
EXHIBIT 1
User Name: Jessica Doughty
Date and Time: Monday, March 4, 2024 1:47:00PM EST
Job Number: 218606854
Document (1)
1. Keil v. Doe, 2023 U.S. App. LEXIS 6250
Client/Matter: -None-
Search Terms: Keil v. Doe, 2023 U.S. App. LEXIS 6250
Search Type: Natural Language
Narrowed by:
Content Type Narrowed by
Cases -None-
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2024 LexisNexis
Jessica Doughty
Neutral
As of: March 4, 2024 6:47 PM Z
Keil v. Doe
United States Court of Appeals for the Eighth Circuit
March 10, 2023, Submitted; March 16, 2023, Filed
No. 22-2694, No. 22-2697, No. 22-2698, No. 22-2699
Reporter
2023 U.S. App. LEXIS 6250 *; 2023 WL 2531867
Karen Backues Keil, Plaintiff Appellee v. Jane or John For Lynnsey Christie Betz, Plaintiff - Appellee (22-2697):
Doe #1, Defendant, Edward Bearden, Defendant John J. Ammann, Susan Woods McGraugh, ST. LOUIS
Appellant, Jane or John Doe #2; Jane or John Doe #3, UNIVERSITY SCHOOL OF LAW, Saint Louis, MO;
Defendants;Lynnsey Christie Betz, Plaintiff Appellee v. Jessica E. Garland, GUPTA & WESSLER, San
Edward Bearden, Defendant Appellant, Jane or John Francisco, CA; Brendan D. Roediger, ST. LOUIS
Doe #1; Jane or John Doe #2, Defendants;Ashley Olsen UNVERSITY, School of Law, Saint Louis, MO; Jenifer
Zieser, Plaintiff Appellee v. Edward Bearden, Defendant C. Snow, LAW OFFICE OF JOAN M. SWARTZ, Saint
Appellant, Jane or John Doe #1; Jane or John Doe #2, Louis, MO; Jonathan E. Taylor, GUPTA & WESSLER,
Defendants;Trenady George, Plaintiff Appellee v. Washington, DC.
Edward Bearden, Defendant Appellant
For Ashley Olsen Zieser, Plaintiff - Appellee (22-2698):
John J. Ammann, Susan Woods McGraugh, ST. LOUIS
Notice: PLEASE REFER TO FEDERAL RULES OF
UNIVERSITY SCHOOL OF LAW, Saint Louis, MO;
APPELLATE PROCEDURE RULE 32.1 GOVERNING
Jessica E. Garland, [*2] GUPTA & WESSLER, San
THE CITATION TO UNPUBLISHED OPINIONS.
Francisco, CA; Brendan D. Roediger, ST. LOUIS
UNVERSITY, School of Law, Saint Louis, MO; Jenifer
Prior History: [*1] Appeals from United States District
C. Snow, LAW OFFICE OF JOAN M. SWARTZ, Saint
Court for the Western District of Missouri - St. Joseph.
Louis, MO; Jonathan E. Taylor, GUPTA & WESSLER,
Washington, DC.
Core Terms
For Trenady George, Plaintiff - Appellee (22-2699):
consolidation, no abuse, standard of review, punitive John J. Ammann, Susan Woods McGraugh, ST. LOUIS
damages, district court, plaintiffs', remittitur, inmates, UNIVERSITY SCHOOL OF LAW, Saint Louis, MO;
compensatory damages, corrections officer, evidentiary Jessica E. Garland, GUPTA & WESSLER, San
ruling, exclude evidence, sexually assault, award Francisco, CA; Brendan D. Roediger, ST. LOUIS
damages, reprehensibility, assaulted, excluding, UNVERSITY, School of Law, Saint Louis, MO; Jenifer
awarding, appeals, damages, abused C. Snow, LAW OFFICE OF JOAN M. SWARTZ, Saint
Louis, MO; Jonathan E. Taylor, GUPTA & WESSLER,
Counsel: For Karen Backues Keil, Plaintiff - Appellee Washington, DC.
(22-2694): John J. Ammann, Susan Woods McGraugh,
ST. LOUIS UNIVERSITY SCHOOL OF LAW, Saint Judges: Before GRUENDER, STRAS, and KOBES,
Louis, MO; Jessica E. Garland, GUPTA & WESSLER, Circuit Judges.
San Francisco, CA; Brendan D. Roediger, ST. LOUIS
UNVERSITY, School of Law, Saint Louis, MO; Jenifer Opinion
C. Snow, LAW OFFICE OF JOAN M. SWARTZ, Saint
Louis, MO; Jonathan E. Taylor, GUPTA & WESSLER,
Washington, DC.
PER CURIAM.
For Edward Bearden (22-2694, 22-2697, 22-2698, 22-
2699), Defendant - Appellant: Abbie Rothermich, In these consolidated appeals, former correctional
Nicolas Taulbee, ATTORNEY GENERAL'S OFFICE, officer Edward Bearden appeals following the district
Kansas City, MO.
Jessica Doughty
Page 2 of 2
2023 U.S. App. LEXIS 6250, *2
court's1 judgment on an adverse jury verdict. Four Finally, we find no abuse of discretion in the denial of
plaintiffs sued Bearden under 42 U.S.C. § 1983, alleging remittitur, particularly given the reprehensibility of
that he violated the Eighth Amendment by sexually Bearden's conduct. See J.K.J. v. Polk Cnty., 960 F.3d
assaulting them when they were inmates at the 367, 376 (7th Cir. 2020) (en banc) (affirming judgment
Chillicothe Correctional Center. The district court awarding identical damages to 2 inmates who sued
granted plaintiffs' motion to consolidate the actions for corrections officer for sexually assaulting them; while
trial under Federal Rule of Civil Procedure 42(a), and assaults uniquely affected each inmate, they did not
the jury found Bearden liable in each case, awarding necessitate different damages amounts); Miller v. Huron
each plaintiff $3.5 million in compensatory damages and Reg'l Med. Ctr., 936 F.3d 841, 846 (8th Cir. 2019)
$1.5 million [*3] in punitive damages. Bearden moved (standard of review; remittitur is reserved for cases
for a new trial under Federal Rule of Civil Procedure where verdict is so grossly excessive as to shock
59(a), or for remittitur, and the district court denied his conscience); Lee ex rel. Lee v. Borders, 764 F.3d 966,
motion. We affirm. 975-76 (8th Cir. 2014) (upholding jury award of $3
million in compensatory damages and $1 million in
We find no abuse of discretion in consolidating plaintiffs' punitive damages to § 1983 plaintiff who was sexually
actions for trial, as consolidation promoted judicial assaulted once by worker at mental health facility and
efficiency and outweighed the minimal prejudice to who developed post-traumatic stress disorder; worker's
Bearden, and as the identical damages awarded to conduct abused position of trust and was reprehensible,
each plaintiff were insufficient to show jury confusion. justifying punitive damages).
See Eghnayem v. Bos. Sci. Corp., 873 F.3d 1304, 1315
(11th Cir. 2017) (rejecting argument that consolidation The judgment is [*5] affirmed. See 8th Cir. R. 47B.
led jury to believe plaintiffs' claims were more likely to
be true, and noting that, absent consolidation, plaintiffs
would have been able to submit evidence of others with End of Document
similar injuries; identical damages awards, without
more, were not sufficient evidence of juror confusion to
show abuse of discretion in consolidation); EEOC v.
HBE Corp., 135 F.3d 543, 550-51 (8th Cir. 1998)
(standard of review; consolidation was appropriate to
avoid inefficiency of separate trials involving related
parties, witnesses, and evidence).
We also find no abuse of discretion in the district court's
evidentiary ruling excluding the recording of a telephone
call between Bearden and plaintiff Trenady George. See
United States v. Wallace, 852 F.3d 778, 784 (8th Cir.
2017) (no abuse of discretion in excluding appellant's
videotaped statement as cumulative of her testimony
regarding [*4] statement); Coterel v. Dorel Juv. Grp.,
Inc., 827 F.3d 804, 807 (8th Cir. 2016) (standard of
review; appellate court will not disturb jury's verdict
unless district court clearly abused its discretion in
evidentiary ruling and error prejudicially influenced
outcome of trial); Amplatz v. Country Mut. Ins. Co., 823
F.3d 1167, 1172-73 (8th Cir. 2016) (appellant was not
prejudiced by exclusion of evidence, as other evidence
relating to matter was admitted, and she could have
called witness to adduce excluded evidence).
1 The Honorable Beth Phillips, Chief Judge, United States
District Court for the Western District of Missouri.
Jessica Doughty
Preview
ASB-FBT-CV-22-6113987-S : SUPERIOR COURT : LUCILLE MUNSELL, executrix of the estate of : Stephen Munsell, et al. : J.D. OF FAIRFIELD : VS. : AT BRIDGEPORT : ROGERS CORP., et al. : March 5, 2024 PLAINTIFFS’ REPLY TO DEFENDANT, ROGERS CORPORATION’S, OBJECTION TO MOTION TO CONSOLIDATE CASES FOR TRIAL I. Introduction: In the Fall of 2022, this Court presided over a consolidated trial involving 15 plaintiffs (including separate families and an FBI agent) against conspiracy theorist Alex Jones and his media company, Infowars. The jury was required to hear evidence from a multitude of individuals, each with their own traumatic story and each with uniquely devastating, heartbreaking damages. The jury was ultimately asked to award damages for two separate tortious acts – defamation and emotional distress – to each of those 15 plaintiffs, which the jury ultimately did, successfully and without confusion. Here, in its Objection to the plaintiffs’ Motion to Consolidate, the defendant, Rogers Corporation, strains mightily to conjure non-trivial differences between the four cases – Tomko,1 Dusto,2 Bacon,3 and 1 Thomas Tomko, et al. v. Union Carbide Corp., et al., ASB-FBT-CV-22-6113982-S. 2 Lana Kelly, executor of the estate of Harold Dusto, et al. v. Rogers Corp., et al., ASB-FBT-CV-19-6086883-S. 3 Daniel A. Bacon, executor of the estate of Wesley Bacon v. Rogers Corp., et al., ASB-FBT-CV-22-6114158- S. 1 Munsell4 – that would make a difference in the Court’s calculus about consolidation. However, consolidating these cases for trial is fair and it fundamentally makes sense. The four men were all co-workers at the same factory, during overlapping periods of time, exposed to the same asbestos, from the same processes, with the same employer, the same historical context, overlapping state-of-the-art, the same witnesses, the same testimony, and the same or similar diseases. Indeed, if a trial court cannot consolidate these four cases it would be hard to imagine any cases more suitable for consolidation. II. Argument: A. The cases have far more than “superficial commonalities.” These cases belong together. For all non-trivial intents and purposes, they are the same case. The story of Rogers Corporation is one consistent story that needs to be told in its entirety for proper context. Over a period of decades, Rogers Corporation deceived its workers, deceived the workers’ union representatives, deceived safety inspectors, deceived customers, deceived the public, gave workers the wrong respirators, failed to notify workers of overexposures, violated federal laws, violated state laws, created a profoundly dangerous working environment, and effectively “disabled” federal regulations, all of which inevitably led to a latent epidemic of asbestos-related disease among its plantworkers. Rogers created 4 Lucille Munsell, executrix of the estate of Stephen Munsell, et al. v. Rogers Corp., et al., ASB-FBT-CV-22- 6113987-S. 2 the dangerous conditions and knew to a substantial certainty that asbestos-related disease would afflict its workers. These cases are about four of those workers. The defendant argues that the four cases only have “superficial commonalities” and have “significant material distinctions” that caution against consolidation, but those arguments strain credulity. Yes, there are trivial differences between the four plaintiffs: they are different ages; they worked during a range of years; they even had a variety of jobs. The key point, however, is not where they worked, or when they worked, or how long they worked. The key point is that all of them were exposed to asbestos at Rogers Corporation in the course of Rogers’ handling and use of asbestos, all of which released asbestos fibers into the air, which the plaintiffs breathed and which caused their injuries. The nature of the process does not matter. What matters is that the various processes caused the release of asbestos into the air, which posed a grave health hazard to anyone exposed to it. Whether the beaters released the asbestos, or the handling of bags in the warehouse released the asbestos, or the extruder machines released the asbestos, or the sweeping of dust released the asbestos, the relevant point is that all of these processes released asbestos into the air and each of the four men was exposed to it. The defendant’s micro-focus on the exact work process of each individual plaintiff misses the larger point. It does not matter whether one plaintiff worked in the extrusion department or another plaintiff worked in the GLP department or another worked in the warehouse. What truly matters is that each of the plaintiffs was exposed to asbestos, 3 regardless of the particular source. The micro-focus on the nature of the process is a superficial distinction without a difference. The plaintiffs worked a variety of jobs, but each job resulted in exposure to asbestos. The asbestos exposure is what matters, not the specific process or location. For example, if a hypothetical worker had an exposure of 10 fibers/cc, it does not matter whether that exposure originated from a beater or an extruder or a kneader or from sweeping – what matters is the exposure, not the process. The defendant’s arguments to the contrary are textbook examples of superficial distinctions. Additionally, the defendant overstates the distinctions between the plaintiffs’ job duties at the plant. Like many of the workers at the Rogers plant, these men moved throughout the facility, often worked in the same departments, and were subjected to exposures all over the plant, not just at the specific task they happened to be doing on a given day. Mr. Dusto began his career in the extrusion department, then moved to GLP, then DAP, then back to GLP, and even spent some time helping in the warehouse. Although Mr. Dusto was never assigned to the matrix department, he walked through the area almost every day to get to the parking lot, to get to the maintenance shop, or to get to the fork truck battery station. Mr. Munsell started in the loft, then worked in extrusion, then as a beater helper (in the matrix department), then back to extrusion, then back to the loft, then doing rotary trim (back in the matrix department), then as a warehouse worker and truck driver. Mr. Bacon first worked in extrusion, then transferred to the matrix department. Mr. Tomko worked as 4 an electrical maintenance worker whose job duties took him to every department in the plant, including extrusion, GLP, matrix and the warehouse. All four of the men also spent time in other areas of the factory, walking from Point A to Point B, going to the lunch room, using the restrooms, visiting friends in other departments, and using the locker rooms. There was a central corridor that connected all the departments and allowed for the free movement of personnel, fork trucks, and air currents. A fair reading of all the evidence in the case reveals a small factory with a limited number of employees who all moved throughout the building, intermingling, changing locations, changing jobs, but all essentially breathing the same contaminated air. B. There is no prejudice to Rogers. Rogers argues that it would be prejudiced “because the jury would hear the full spectrum of damages evidence, even in cases where a particular Plaintiff would not be entitled to an award of one or more types of damages.” Objection, at 18. This type of concern, however, is successfully handled in trials every day across this State. First, juries are routinely given jury interrogatories that ask individual, specific questions about the individual parties, whether there are multiple plaintiffs or multiple defendants. In a trial with one plaintiff and multiple defendants, there are always separate jury interrogatories that ask the jury to consider the liability and damages of those defendants separately. Indeed, in this case there were originally multiple defendants and there is little doubt that the defendants would have insisted on specific jury interrogatories tailored to each 5 of them in order to get individual findings of liability and damages. The same should hold true for a consolidated case with multiple plaintiffs and a single defendant. A consolidated trial will inevitably have jury interrogatories that expressly call out individual questions for the jury to answer about each plaintiff.5 Second, in the event of a plaintiffs’ verdict, the jury will have a verdict sheet with individual line items for damages for each plaintiff, compelling the jury to consider each plaintiff individually and to award damages to the plaintiffs individually. Mr. Bacon, for instance, will not have a line item for loss of consortium damages since he was not married. Mr. Tomko will not have a line item for death damages since he is still living. Even in a case involving only one worker, the jury would still have to parse out individual damages to the worker himself and to his spouse for loss of consortium. These are routine, pedestrian, logistical issues that juries have to confront in cases every day. Third, the trial court will provide, as it does in every case, explicit instructions to the jury during the jury charge about how to approach the issue of damages for each individual plaintiff. This is true whether a case involves a husband and wife, each with their own types 5 Consider further, in some other hypothetical asbestos case in the Bridgeport Asbestos Litigation, it is routine for plaintiffs to have multiple exposures in their lives, sometimes with very disparate facts – e.g., a plaintiff could have exposure from his time as a machinist mate in the Navy and then additional exposure as a civilian auto mechanic. The two exposures are very different and they would implicate very different defendants, but no one ever disputes that those exposures and those defendants should be tried as a single case, despite significant differences in the types of products, the types of exposures, the work environments, and the applicable laws. If a single trial is good enough for disparate defendants, then a consolidated trial should be just as valid for multiple plaintiffs against a single defendant where the cases all involve the same factory, the same processes, the same witnesses, the same experts, the same state-of-the-art, etc. 6 of damages, or parents and their children, each with their own types of damages, or consolidated plaintiffs each with their own damages. Fourth, the trial court will be able to provide real-time, in-trial instructions to the jury as evidence is being entered, instructing and reminding the jury as to the applicability of damages evidence to each individual plaintiff. This type of precautionary (or curative) instruction will assist the jury in understanding the evidence and will ensure that the jury properly applies the correct damages evidence to its corresponding plaintiff. In Eghnayem v. Boston Scientific Corp., the U.S. Court of Appeals for the Eleventh Circuit upheld a decision to consolidate several product liability cases, holding that any prejudice and confusion of the jury was alleviated by “utilizing cautionary instructions to the jury during the trial and controlling the manner in which the plaintiffs’ claims (including the defenses thereto) are submitted to the jury for deliberation.” Eghnayem v. Boston Scientific Corp., 873 F.3d 1304, 1314 (11th Cir. 2017) (citations omitted, internal quotation marks omitted), citing Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir. 1985) (upholding the consolidation of several asbestos claims). In Hendrix, the court held that the consolidated claims were “precisely the kind of tort claims a court should consider consolidating for trial. . . . A joint trial saved the appellants from wasteful relitigation, avoided duplication of judicial effort, and did not materially prejudice appellants’ rights.” Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1497 (11th Cir. 1985) (citations omitted; emphasis added). 7 C. The jury will not be confused or misled. It is belittling and demeaning to the jury to assert that the jury will be “confused” by the presentation of evidence in a consolidated trial. The vast majority of the evidence in these cases will be identical – the same state-of-the-art evidence, the same historical context, the same factual evidence about the factory and its processes, the same testimony from the same lay witnesses, the same testimony from the same expert witnesses, the same testimony from the same corporate representative, the same documentary evidence, the same OSHA regulations, the same state laws, and the same legal standard governing the cases. The only evidence that will vary will be the specific testimony about each individual plaintiff’s damages, and even that will largely overlap – four cancer cases, three of which are mesothelioma; three deaths; pain and suffering; and medical treatments. In the context of the larger story about Rogers Corporation and the plaintiffs’ burden of proof in these Suarez cases, the essential elements of the claim involve Rogers Corporation – its conduct, its knowledge, the conditions in its factory – not the individual plaintiffs. There is a single unified story to tell about Rogers Corporation, punctuated by the individual damages to the four plaintiffs. In Keil v. Doe, the U.S. Court of Appeals for the Eighth Circuit upheld the consolidation of several cases as consolidation promoted judicial efficiency and outweighed the minimal prejudice. Keil v. Doe, 2023 U.S. App. LEXIS 6250 (8th Cir. 2023) (attached as Exhibit 1). The Court found there was insufficient evidence of jury confusion when the cases 8 were consolidated, noting that identical damages were insufficient to show confusion. Id. The court cited to Eghnayem v. Boston Scientific Corp., 873 F.3d 1304 (11th Cir. 2017), supra, for the proposition that consolidation does not lead juries to believe plaintiffs’ claims are more likely to be true. In Campbell v. Boston Scientific Corp., 882 F.3d 70 (4th Cir. 2018), the Fourth Circuit upheld the consolidation of four product liability cases holding that the lower court was well within its discretion in consolidating these four cases for trial. To hold otherwise would be to sacrifice the substantial savings of time and money that consolidation offers. Both plaintiffs and defendants benefit from lessened litigation costs and the reduced need for expert testimony. Witnesses benefit from reduced demands on their time by limiting the need for them to provide repetitive testimony. The community as a whole benefits from reduced demands on its resources, including reduced demand for jurors. The judicial system benefits from the freedom consolidation affords judges to conscientiously resolve other pending cases. Id. at 76. D. The plaintiffs need to prove “substantial certainty” with respect to employees generally, not with respect to each specific plaintiff. The Court should not consider the defendant’s argument about the plaintiff’s burden of proof, or any argument about the precise elements of the legal standard. Those issues are not relevant considerations on a motion to consolidate cases and, even if they were, the defendant’s interpretation of the legal standard is incorrect. First, questions surrounding the legal standard and the specific elements of proof should be left for the trial judge. The Appellate Court remanded the Dusto case for trial and 9 the other three cases are bound by the same law. See Dusto v. Rogers Corp., 222 Conn. App. 71 (2023). The plaintiffs will submit their evidence and the trial judge will have to make a determination either at the close of the plaintiffs’ case-in-chief or after a jury verdict to determine whether the plaintiffs have met their legal burdens. Regardless, quibbling about the finer points of the legal standard is not an appropriate consideration at this stage of the proceedings. Second, the defendant’s interpretation of the legal standard is incorrect. As the Appellate Court stated in Dusto, “satisfaction of the substantial certainty exception requires a showing of the employer’s subjective intent to engage in activity that it knows bears a sustantial certainty of injury to its employees.” Id. at 82 (quoting Lucenti v. Laviero, 327 Conn. 777 (2018)) (emphasis added). The Appellate Court restated this standard in its own words, ultimately determining that a plaintiff needs to prove, “in light of the totality of the evidence presented, a jury could reasonably infer that the employer subjectively believed that its conduct was substantially certain to result in injury to its employees.” Id. at 101 (emphasis added). The proper standard is not whether Rogers Corporation knew to a substantial certainty that harm would come to the specific individual, but whether harm would come to one or more of its employees who were subjected to the dangerous conditions. Regardless, considerations of the proper legal standard and arguments about the burden of proof are not appropriate, or relevant, considerations on a motion to consolidate. The defendant’s non sequitur arguments should be ignored by the Court. 10 III. Conclusion: These cases should be consolidated for trial. “The public’s interest in avoiding unnecessary litigation and conserving scarce judicial resources is too powerful a factor to ignore.” Alpha Crane, 6 Conn. App. at 68 (quoting Nielson v. Nielson, 3 Conn. App. 679, 684 (1985)). Unnecessary duplication of litigation involving the same issues, the same parties and the same witnesses serves no one’s interests. WHEREFORE, the plaintiffs respectfully request that this Court consolidate these four cases for trial. Respectfully submitted, THE PLAINTIFFS By__/s/ 417342 ____________ Christopher Meisenkothen Early, Lucarelli, Sweeney & Meisenkothen, LLC One Century Tower, Suite 1101 265 Church St. New Haven, CT 06510 203-777-7799 p 203-785-1671 f 11 CERTIFICATION This is to certify that a copy of the foregoing was served this 5th day of March, 2024 to all counsel of record. ___s/417342___________ Christopher Meisenkothen 12 Exhibit List Ex. # Exhibit 1 Keil v. Doe, 2023 U.S. App. LEXIS 6250 (8th Cir. 2023) EXHIBIT 1 User Name: Jessica Doughty Date and Time: Monday, March 4, 2024 1:47:00PM EST Job Number: 218606854 Document (1) 1. Keil v. Doe, 2023 U.S. App. LEXIS 6250 Client/Matter: -None- Search Terms: Keil v. Doe, 2023 U.S. App. LEXIS 6250 Search Type: Natural Language Narrowed by: Content Type Narrowed by Cases -None- | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2024 LexisNexis Jessica Doughty Neutral As of: March 4, 2024 6:47 PM Z Keil v. Doe United States Court of Appeals for the Eighth Circuit March 10, 2023, Submitted; March 16, 2023, Filed No. 22-2694, No. 22-2697, No. 22-2698, No. 22-2699 Reporter 2023 U.S. App. LEXIS 6250 *; 2023 WL 2531867 Karen Backues Keil, Plaintiff Appellee v. Jane or John For Lynnsey Christie Betz, Plaintiff - Appellee (22-2697): Doe #1, Defendant, Edward Bearden, Defendant John J. Ammann, Susan Woods McGraugh, ST. LOUIS Appellant, Jane or John Doe #2; Jane or John Doe #3, UNIVERSITY SCHOOL OF LAW, Saint Louis, MO; Defendants;Lynnsey Christie Betz, Plaintiff Appellee v. Jessica E. Garland, GUPTA & WESSLER, San Edward Bearden, Defendant Appellant, Jane or John Francisco, CA; Brendan D. Roediger, ST. LOUIS Doe #1; Jane or John Doe #2, Defendants;Ashley Olsen UNVERSITY, School of Law, Saint Louis, MO; Jenifer Zieser, Plaintiff Appellee v. Edward Bearden, Defendant C. Snow, LAW OFFICE OF JOAN M. SWARTZ, Saint Appellant, Jane or John Doe #1; Jane or John Doe #2, Louis, MO; Jonathan E. Taylor, GUPTA & WESSLER, Defendants;Trenady George, Plaintiff Appellee v. Washington, DC. Edward Bearden, Defendant Appellant For Ashley Olsen Zieser, Plaintiff - Appellee (22-2698): John J. Ammann, Susan Woods McGraugh, ST. LOUIS Notice: PLEASE REFER TO FEDERAL RULES OF UNIVERSITY SCHOOL OF LAW, Saint Louis, MO; APPELLATE PROCEDURE RULE 32.1 GOVERNING Jessica E. Garland, [*2] GUPTA & WESSLER, San THE CITATION TO UNPUBLISHED OPINIONS. Francisco, CA; Brendan D. Roediger, ST. LOUIS UNVERSITY, School of Law, Saint Louis, MO; Jenifer Prior History: [*1] Appeals from United States District C. Snow, LAW OFFICE OF JOAN M. SWARTZ, Saint Court for the Western District of Missouri - St. Joseph. Louis, MO; Jonathan E. Taylor, GUPTA & WESSLER, Washington, DC. Core Terms For Trenady George, Plaintiff - Appellee (22-2699): consolidation, no abuse, standard of review, punitive John J. Ammann, Susan Woods McGraugh, ST. LOUIS damages, district court, plaintiffs', remittitur, inmates, UNIVERSITY SCHOOL OF LAW, Saint Louis, MO; compensatory damages, corrections officer, evidentiary Jessica E. Garland, GUPTA & WESSLER, San ruling, exclude evidence, sexually assault, award Francisco, CA; Brendan D. Roediger, ST. LOUIS damages, reprehensibility, assaulted, excluding, UNVERSITY, School of Law, Saint Louis, MO; Jenifer awarding, appeals, damages, abused C. Snow, LAW OFFICE OF JOAN M. SWARTZ, Saint Louis, MO; Jonathan E. Taylor, GUPTA & WESSLER, Counsel: For Karen Backues Keil, Plaintiff - Appellee Washington, DC. (22-2694): John J. Ammann, Susan Woods McGraugh, ST. LOUIS UNIVERSITY SCHOOL OF LAW, Saint Judges: Before GRUENDER, STRAS, and KOBES, Louis, MO; Jessica E. Garland, GUPTA & WESSLER, Circuit Judges. San Francisco, CA; Brendan D. Roediger, ST. LOUIS UNVERSITY, School of Law, Saint Louis, MO; Jenifer Opinion C. Snow, LAW OFFICE OF JOAN M. SWARTZ, Saint Louis, MO; Jonathan E. Taylor, GUPTA & WESSLER, Washington, DC. PER CURIAM. For Edward Bearden (22-2694, 22-2697, 22-2698, 22- 2699), Defendant - Appellant: Abbie Rothermich, In these consolidated appeals, former correctional Nicolas Taulbee, ATTORNEY GENERAL'S OFFICE, officer Edward Bearden appeals following the district Kansas City, MO. Jessica Doughty Page 2 of 2 2023 U.S. App. LEXIS 6250, *2 court's1 judgment on an adverse jury verdict. Four Finally, we find no abuse of discretion in the denial of plaintiffs sued Bearden under 42 U.S.C. § 1983, alleging remittitur, particularly given the reprehensibility of that he violated the Eighth Amendment by sexually Bearden's conduct. See J.K.J. v. Polk Cnty., 960 F.3d assaulting them when they were inmates at the 367, 376 (7th Cir. 2020) (en banc) (affirming judgment Chillicothe Correctional Center. The district court awarding identical damages to 2 inmates who sued granted plaintiffs' motion to consolidate the actions for corrections officer for sexually assaulting them; while trial under Federal Rule of Civil Procedure 42(a), and assaults uniquely affected each inmate, they did not the jury found Bearden liable in each case, awarding necessitate different damages amounts); Miller v. Huron each plaintiff $3.5 million in compensatory damages and Reg'l Med. Ctr., 936 F.3d 841, 846 (8th Cir. 2019) $1.5 million [*3] in punitive damages. Bearden moved (standard of review; remittitur is reserved for cases for a new trial under Federal Rule of Civil Procedure where verdict is so grossly excessive as to shock 59(a), or for remittitur, and the district court denied his conscience); Lee ex rel. Lee v. Borders, 764 F.3d 966, motion. We affirm. 975-76 (8th Cir. 2014) (upholding jury award of $3 million in compensatory damages and $1 million in We find no abuse of discretion in consolidating plaintiffs' punitive damages to § 1983 plaintiff who was sexually actions for trial, as consolidation promoted judicial assaulted once by worker at mental health facility and efficiency and outweighed the minimal prejudice to who developed post-traumatic stress disorder; worker's Bearden, and as the identical damages awarded to conduct abused position of trust and was reprehensible, each plaintiff were insufficient to show jury confusion. justifying punitive damages). See Eghnayem v. Bos. Sci. Corp., 873 F.3d 1304, 1315 (11th Cir. 2017) (rejecting argument that consolidation The judgment is [*5] affirmed. See 8th Cir. R. 47B. led jury to believe plaintiffs' claims were more likely to be true, and noting that, absent consolidation, plaintiffs would have been able to submit evidence of others with End of Document similar injuries; identical damages awards, without more, were not sufficient evidence of juror confusion to show abuse of discretion in consolidation); EEOC v. HBE Corp., 135 F.3d 543, 550-51 (8th Cir. 1998) (standard of review; consolidation was appropriate to avoid inefficiency of separate trials involving related parties, witnesses, and evidence). We also find no abuse of discretion in the district court's evidentiary ruling excluding the recording of a telephone call between Bearden and plaintiff Trenady George. See United States v. Wallace, 852 F.3d 778, 784 (8th Cir. 2017) (no abuse of discretion in excluding appellant's videotaped statement as cumulative of her testimony regarding [*4] statement); Coterel v. Dorel Juv. Grp., Inc., 827 F.3d 804, 807 (8th Cir. 2016) (standard of review; appellate court will not disturb jury's verdict unless district court clearly abused its discretion in evidentiary ruling and error prejudicially influenced outcome of trial); Amplatz v. Country Mut. Ins. Co., 823 F.3d 1167, 1172-73 (8th Cir. 2016) (appellant was not prejudiced by exclusion of evidence, as other evidence relating to matter was admitted, and she could have called witness to adduce excluded evidence). 1 The Honorable Beth Phillips, Chief Judge, United States District Court for the Western District of Missouri. Jessica Doughty