Denial of Motion for Severance Upheld—Defendant Suing for Two Types of Injuries Allegedly Linked to Two Different Groups of Defendants​

In this case the plaintiff alleged his injuries were the result of exposure to coal tar pitch and asbestos “while employed as a laborer in the carbon electrode industry.”  The complaint separated the defendants into two groups, three companies were named with respect to the coal tar pitch (the appellants), and the other defendants were named with respect to the asbestos.  The appellants appealed the denial of their severance motion.  In affirming the denial of severance, the Fourth Department wrote:

“The determination of whether to grant or deny a request for a severance pursuant to CPLR 603 is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking the severance” The burden is on the party seeking the severance to show that “a joint trial would result in substantial prejudice” …Severance is appropriate where “individual issues predominate, concerning particular circumstances applicable to each [defendant] . . . [and there] is the possibility of confusion for the jury” …. Here, although appellants contended that a joint trial might result in juror confusion and would be inappropriate because plaintiff’s alleged injuries with respect to his exposure to coal tar pitch fumes and to asbestos were distinct, they did not satisfy their burden of establishing that a joint trial would result in substantial prejudice.  In re Eighth Judicial District Asbestos Litigation v Niagara Insulations, Inc, et al, CA 12-01809, 238, 4th Dept, 5-3-13