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Gallagher v. American Insulated Wire Corp.

Superior Court of Rhode Island

October 10, 2014

MAUREEN GALLAGHER, Executor for the ESTATE of DENNIS GALLAGHER, by her agent, THE FEDERAL-MOGUL ASBESTOS PERSONAL INJURY TRUST, Plaintiff,
v.
AMERICAN INSULATED WIRE CORP., et al., Defendants. and CONSTANCE PODEDWORNY, Executrix for the ESTATE of Joseph PODEDWORNY, by her agent, THE FEDERAL-MOGUL ASBESTOS PERSONAL INJURY TRUST, Plaintiff,
v.
AMERICAN INSULATED WIRE CORP., et al., Defendants.

Providence County Superior Court

For Plaintiff: Vincent L. Greene, Esq.

For Defendant: Mark T. Nugent, Esq. Danielle J. Mahoney, Esq. Michael J. Marcello, Esq.

DECISION

GIBNEY, P.J.

The Plaintiffs, Maureen Gallagher, Executor for the Estate of Dennis Gallagher, by her agent, The Federal-Mogul Asbestos Personal Injury Trust (C.A. No. PC 11-5269) and Constance Podedworny, Executrix for the Estate of Joseph Podedworny, by her agent, The Federal-Mogul Asbestos Personal Injury Trust (C.A. No. PC 11-5268), by and through their attorneys of record, filed the above-entitled, asbestos-related negligence claims against a number of defendants, including Turner & Knewell (Defendants). The Plaintiffs move to consolidate the two cases pursuant to Super. R. Civ. P. 42 (Rule 42). Jurisdiction is pursuant to G.L. 1956 § 8-2-14. For the reasons set forth below, Plaintiffs' Motion to Consolidate Cases for Trial is granted.

I Facts and Travel

Joseph Podedworny was employed by Narragansett Electric from 1952 to November 1, 1984 in a variety of positions, including janitor, helper, assistant boiler operator, boiler operator, turbine operator, and engineer. Mr. Podedworny was diagnosed with malignant mesothelioma on September 17, 2002. On June 29, 2003, Mr. Podedworny died at the age of eighty-three.

Similarly, Dennis Gallagher was employed as a welder in the maintenance department at Narragansett Electric from October 29, 1984 to April 7, 2004. On April 8, 2004, Mr. Gallagher was diagnosed with malignant mesothelioma. On July 13, 2005, he died at the age of fifty-eight. Unlike Mr. Podedworny, Mr. Gallagher testified that he was exposed to asbestos-containing products prior to his work at Narragansett Electric. More specifically, he testified that he was exposed to asbestos-containing products as a welder at Electric Boat in Groton, Connecticut from 1965 to 1971 and as a supervisor, welder, and planner at Electric Boat in Quonset, Rhode Island from April 1974 to October 1984.

Mr. Podedworny received treatment in Rhode Island from Drs. Frank Fallon and John Przygoda. Mr. Gallagher received treatment for his medical condition in Rhode Island and Massachusetts from Drs. Frank Fraioli, John Pella, R. Eric Lilly, and David J. Sugarbaker. During the course of Mr. Gallagher's treatment, Dr. Sugarbaker performed an extrapleural pneumonectomy.

Plaintiffs both allege that they were exposed to Defendants' asbestos-containing product, Limpet, which Plaintiffs contend was sprayed on the turbines at Narragansett Electric. Both Plaintiffs worked in the same Narragansett Electric facility and were allegedly exposed to asbestos in the same manner.

II Discussion

Rule 42(a) allows the consolidation of actions that involve "common questions of law and fact." Rule 42(a). However, it is important to remember "that consolidation is allowed to avoid unnecessary costs or delay and does not result in a merger of the cases." Martin v. Lilly, 505 A.2d 1156, 1159 (R.I. 1986). In Giguere v. Yellow Cab Co., the Supreme Court of Rhode Island observed:

"the trial court has inherent power to order that several cases pending before it be tried together where they are of the same nature, arise from the same act or transaction, involve the same or like issues, depend substantially upon the same evidence, even though it may vary in its details in fixing responsibility, and where such a trial will not prejudice the substantial rights of any party." Giguere v. Yellow Cab Co., 59 R.I. 248, 251, 195 A. 214, 216 (1937); see also Rich v. Rich, 94 R.I. 220, 222, 179 A.2d 498, 500 (1962); Sch. Comm. of Cranston v. Bergin-Andrews, 984 A.2d 629, 647 (R.I. 2009).

In addition, Rule 42(a) is almost identical to Rule 42(a) of the Federal Rules of Civil Procedure. The Rhode Island Supreme Court has "repeatedly held that in situations where our procedural rule is identical to the federal counterpart and our own case law is sparse in that area, we will look for guidance in the precedents of the federal courts." Kirios v. Arsenault, 632 A.2d 15, 16-17 (R.I. 1993); see also Kelvey v. Coughlin, 625 A.2d 775, 776 (R.I. 1993) (citing Cabralv. Arruda, 556 A.2d 47, 49 (R.I. 1989)); Smith v. Johns–Manville Corp., 489 A.2d 336, 339 (R.I. 1985). Here, it is even more appropriate to look to the federal courts for guidance on consolidating asbestos-related ...


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