GLUSSI v. FORTUNE BRANDS INC (2000)

In related actions, inter alia, to recover damages for personal injuries, the defendants Fortune Brands, Inc., f/k/a American Brands, Inc., Brown & Williamson Industries, Inc., Brown & Williamson Tobacco Corporation, individually and as successor by merger to the American Tobacco Company, Lorillard Inc., Lorillard Tobacco Company, Philip Morris Incorporated, RJR Nabisco, Inc., R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco Holding, Inc. (f/k/a RJR Nabisco, Inc.), the Tobacco Institute, Inc., and the Council for Tobacco Research-U.S.A., Inc., appeal from an order of the Supreme Court, Kings County, dated June 2, 2000, which granted the plaintiffs' motion for a joint trial.

ORDERED that the order is reversed, with one bill of costs, and the motion is denied.

 It is well settled that a motion seeking a joint trial pursuant to CPLR 602(a) rests within the sound discretion of the trial court (see, J & A Vending v. J.A.M. Vending, 268 A.D.2d 505, 703 N.Y.S.2d 53;  Mattia v. Food Emporium, 259 A.D.2d 527, 686 N.Y.S.2d 473;  Fransen v. Maniscalco, 256 A.D.2d 305, 306, 681 N.Y.S.2d 310) and, absent prejudice, may be granted in the interest of judicial economy where common issues of law or fact exist (see, Rahman v. Miller, 257 A.D.2d 654, 684 N.Y.S.2d 580;  Fransen v. Maniscalco, supra, at 306, 681 N.Y.S.2d 310).

 However, where prejudice to a substantial right is shown by the party opposing the motion, a joint trial should not be granted even if common issues of law or fact exist (see, D'Abreau v. American Bankers Ins. Co. of Fl., 261 A.D.2d 501, 690 N.Y.S.2d 655;  Stephens v. Allstate Ins. Co., 185 A.D.2d 338, 586 N.Y.S.2d 305).

 Here, despite the presence of some common issues of law and fact shared by these actions, the particular circumstances surrounding each plaintiff's smoking history, as well as their medical history, renders a joint trial impractical and unwieldy (see, Bender v. Underwood, 93 A.D.2d 747, 748, 461 N.Y.S.2d 301;  Korren v. Eli Lilly & Co., 150 Misc.2d 429, 431-432, 568 N.Y.S.2d 670;  see also, Small v. Lorillard Tobacco Co., 252 A.D.2d 1, 681 N.Y.S.2d 748, affd. 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892).   In addition, “the resulting and cumulative prejudice to [the defendants] by permitting the jury, in one trial, to determine the multiple claims * * * at issue here, far outweighs the benefit derived from the conduct of a joint trial” (Bender v. Underwood, supra, at 748, 461 N.Y.S.2d 301;  see also, Korren v. Eli Lilly & Co., supra, at 432, 568 N.Y.S.2d 670;  Insolia v. Philip Morris, Inc., 186 F.R.D. 547, 551;  Hasman v. G.D. Searle & Co., 106 F.R.D. 459, 460).   Thus, the order appealed from was an improvident exercise of discretion.

MEMORANDUM BY THE COURT.