throbber
FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`INDEX NO~ 810451/20--6
`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
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`RaCaIVaD NYSCEF: 09/11/20_7
`NYSCEF DOC. NO. 924
`-_AIE_ INDEX “0- ”0132/2013 I
`NYSCEF DOC. NO. 360
`RECEIVED NYSCEF: 05/15/2015
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`SUPREME COURT OF THE STATE OF NEW YORK
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`NEW YORK COUNTY
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`PART
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`INDEX NO.
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`MOHONDATE
`MOTION SEQ. NO.
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`PRESENT:
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`' eWIHIAS-KEENG
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` {
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`Inde;Numberf 190132/2013
`I HILLYER, CHARLES F.
`h
`vs.
`I A.O. SMITH WATER PRODUCTS CO,
`SEQUENCE NUMBER : 011
`TRIAL DE NOVO
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`The foilowing papers, numbered 1 to ._______ . were read on this motion tolfor
`Notice of Motion/Order to Show Cause - Affidavits -— Exhibits
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`Answering Affidavits — Exhibits
`Replying Affidavits
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`I No(s).
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`|N0(s).
`I No(s).
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`UmanMQMwpwuakkwwmdmamEmMMMs
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`is deCIded in accordance with the annexed decision
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`Dated:
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`S lIg IIS
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`QOR
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`.J.S.C.
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`................................................................. )é] CASE DISPOSED
`1. CHECK ONE:
`2. CHECK AS APPROPRIATE: ...........................MOTION Is:
`[:1 GRANTED
`[:1 DENIED
`3. CHECK IF APPROPRIATE: ................................................ CI SETTLE ORDER
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`HI 3. KERN
`CYNT é NON;EI_NAL DISPOSITION
`{:1 GRANTED IN PART
`{:1 OTHER
`[3 SUBMIT ORDER
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`

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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO~
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`810451/2016
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`09/11/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK: Part 55
`__________________________________________________________________x
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`IN RE: NEW YORK CITY ASBESTOS LITIGATION
`__________________________________________________________________X
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`CHARLENE HILLYER, as Executrix for the Estate of
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`CHARLES F. HILLYER,
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`Plaintiffs,
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`Index No.190132/l3
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`-against—
`A.O. SMITH WATER PRODUCTS CO., et al.,
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`DECISION/ORDER
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`Defendants.
`__________________________________________________________________x
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`HON. CYNTHIA KERN, J.S.C.
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`Recitation, as required by CPLR 2219 (a), of the papers consrdered 1n the reVIew of this motion
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`for :
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`Papers
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`1
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`Numbered
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`Notice of Motion and Affidavits Annexed ....................................
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`I
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`Answering Affidavits ...................................................................
`Replying Affidavits ......................................................................
`Exhibits ......................................................................................
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`2 '
`3 _
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`Defendant Bumham LLC (“Bumham”) has filed the present post—trial motion pursuant to
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`CPLR § 4401 and § 4404 for a directed verdict or an order setting aside the verdict and directing
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`thatjudgment be entered in favor of Bumham, or in the alternative, for a new trial.
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`In the
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`alternative, it seeks remitlilur of the verdict.
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`Decedent Charles Hillyer instituted this asbestos product-liability action. At the time trial
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`commenced, there were three remaining defendants, Bumham,yCIeaver Brooks, Inc. and William
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`Powell Company. Plaintiff and Cleaver Brooks Inc. resolved the case during the trial and
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`plaintiff voluntarily discontinued as against William Powell Company before jury deliberations
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
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`began. The jury rendered a verdict in favor of plaintiff and against defendant Bumham in the
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`amount of $20 million for past pain and suffering. The jury also allocated thirty percent of
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`liability to Bumham, thirty percent to Cleaver Brooks Inc. and forty percent to William Powell
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`Company. The jury also found that Bumham was reckless in failing to warn of the toxic hazards
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`of asbestos.
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`Plaintiff testified at his deposition regarding his exposure to Bumham boilers. He
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`testified that he worked around many Bumham boilers as a steamfitter inithe 1970's and that he
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`was exposed to asbestos from Bumham boilers when he worked around Eumham boilers. Tr. at
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`651—652, 700. He testified that he believed he was exposed to asbestos from Bumham boilers
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`and other boilers when other workers would tear off the insulation from the boilers. Tr. at 700.
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`He testified as follows:
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`Again, they would tear off the insulation, we would be taking off valves and that—and I be
`in the general area that they were working and they were just throwing it on the ground
`and again, walking in it, creating dust.
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`Tr. at 700.
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`Bumham makes a number of arguments as to why the verdict should be set aside.
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`It
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`argues that (I) it is entitled to a directed verdict or a new trial because plaintiff failed to prove
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`that Bumham’s failure to warn was a proximate cause of plaintiff’s injury: (2) the jury’s
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`recklessness findings were not supported by the evidence; (3) the court’s instruction on
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`recklessness was improper; (5) it is entitled to a directed verdict or judgment notwithstanding the
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`verdict because plaintiff‘s expert opinion was insufficient as a matter of law to establish specific
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`causation; and (6) it is entitled to a new trial because the jury’s allocation of fault is against the
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`NYSCEF DOC. NO. 924
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`weight of the evidence.
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`In the alternative, it argues that the jury’s award exceeds what is a
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`reasonable award under the circumstances.
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`Section 4404(a) of the CPLR provides that “upon a motion of any party or on its own
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`initiative, a court may set aside a verdict .
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`.
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`. and direct that judgment be entered in favor of a
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`party entitled to judgment as a matter of law or it may order a new trial .
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`. where the verdict is
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`contrary to the weight of the evidence, [or] in the interest ofjustice.” The standard for setting
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`aside a verdict is very high. The Court of Appeals has held that a verdict;may be set aside only
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`when “there is simply no valid line of reasoning and permissible inferences” which could have
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`led to the conclusion reached by thejury. Cohen v. Hallmark Cards, Inc, 45 N.Y.2d 493 (1978).
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`The First Department held that a verdict “will not be set aside unless the preponderance of the
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`evidence is so great that the jury could not have reached its verdict upon any fair interpretation of
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`the evidence.” Pavlou v. City ofNew York, 21 A.D._3d 74, 76 (15‘ Dept 2005). Moreover, the
`evidence must be construed in the light most favorable to the party that pievailed at trial. See
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`Morichka v. Cody, 279 A.D.2d 310 (15‘ Dept 2001 ). Where the case'presents conflicting expert
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`testimony, “[t]he weight to be accorded the conflicting testimony of experts is ‘a matter
`peculiarly within the province ofthejury.’” Torricelli v. Pisacano, 9 A.D.3d 291 (15‘ Dept 2004)
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`(citation omitted); see also Cholewinski v. Wism'cki, 2l A.D.3d 791 (l 5‘ Dept 2005).
`Initially, Bumharn argues that it is entitled to a directed verdict orjudgment
`notwithstanding the verdict on the ground that plaintiff failed to prove that he would have heeded
`a warning if a warning had been provided by Bumham. However, this coilrt has already rendered
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`a decision at the conclusion of the trial denying Bumham’s motion for a directed verdict on this
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`issue and sees no reason to revisit this issue. This court specifically held as follows:
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO~
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`After hearing arguments from both counsel and reading the relevant deposition testimony
`of the plaintiff in this action, and in light of the fact that plaintiff is deceased and not here
`and able to testify at trial, the court finds that there is enough testimony in the deposition
`transcript so that the issue of whether or not plaintiff would have heeded a [warning]
`should be an issue to be decided by the jury rather than by the court as a matter of law;
`and that the jury could make a reasonable inference from the testimony of the plaintiff
`that he would have heeded a [waming] if it had been provided to him.
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`Contrary to the argument made by Burnham, the court did not apply the heeding presumption in
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`making its ruling denying the motion for a directed verdict. Rather, the court found that there
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`was sufficient factual evidence in the record to submit the issue of whether plaintiff would have
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`heeded a warning if it had been provided to the jury, who was entitled to make a credibility
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`determination as to whether plaintiff would have heeded a warning if it had been given.
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`Moreover, it is well settled that “[o]rdinarily, issues of proximate cause are fact questions
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`to be decided by ajury.” While v. Diaz, 49 A.D.3d 134, 139 (15‘ Dept 2008). (internal citation
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`omitted).
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`Indeed, “[w]hile it is appropriate to decide the question of legal cause as a matter of
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`law ‘where only one conclusion may be drawn from the established facts’=, where there is any
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`doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter of
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`law, the better course is to leave the point for the jury to decide.” Id.
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`(quoting Derdiarian v.
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`Felix Contr. Corp, 51 N.Y.2d 308, 315 (1980)). Based on these well established principles, it is
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`appropriate under the circumstances of this cause for thejury to have determined the issue of
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`whether the failure to warn was the proximate cause of plaintiff's injuries rather than the court
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`deciding the issue as a matter of law, as it is not clear that only one conclusion may be drawn
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`from the deposition testimony as to whether plaintiff would have heeded a warning.
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`To the extent that Bumham argues that the court committed an error by not specifically
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`NYSCEF DOC. NO. 924
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`charging the jury that it was plaintiff’s burden to prove that plaintiff would have heeded a
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`warning if one had been given, the court finds this argument to be without merit. The court’s
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`charges on duty to warn, proximate cause and burdens of proof were entirely consistent with the
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`charges contained in the pattern jury instructions, there is no pattemjury instruction which
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`contains the language Burnham wished the court to charge regarding burden of proof and
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`Bumham has not cited to any authority for the proposition that the court is required to charge the
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`foregoing language regarding burden of proof.
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`Bumham next argues that the court should set aside the jury’s verdict that Bumham acted
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`with reckless disregard for plaintiff’ 5 safety as the evidence at trial did not warrant submission of
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`the reckless disregard issue to the jury and the jury’s finding of recklessness was against the
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`weight of the evidence.
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`Its primary argument is that the evidence presented at trial did not
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`establish recklessness based on the Court of Appeals decision in Maltese v Westinghouse
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`Electric Corp. 89 N.Y.2d 955 (1997).
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`In Maltese, the court stated that itiwas adopting a “gross
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`negligence standard” for reckless conduct, requiring a finding that “the adtor has intentionally
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`done an act of an unreasonable character in disregard of a known and obvious risk that was so
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`great as to make it highly probable that harm would follow and has done So with conscious
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`indifference to the outcome.” The court stated that there was insufficient evidence to sustain a
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`verdict of recklessness. According to the court, the evidence revealed that the defendant was
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`aware that exposure to high concentrations of asbestos over time could cause injury “but not that
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`workers such as [plaintiffs] were at risk at any time it could have warned them.” 1d.
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`The court finds that the jury’s finding that Burnham acted with reckless disregard is
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`supported by the record and should not be set aside. There was a valid line of reasoning and
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`NYSCEF DOC. NO. 924
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`permissible inferences which could have led a rational jury to conclude based on the evidence
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`presented at trial that Bumham acted with reckless disregard, unlike the defendant in Maltese.
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`Initially, there was evidence presented at trial from which a jury could have rationally concluded
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`that Bumham had actual knowledge that exposure to high concentrationsiof asbestos over time
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`could cause injury. There was also evidence presented at trial from which a jury could have
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`rationally concluded that during the period of plaintiff‘s claimed exposure to Bumham’s boilers
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`in the l970's that Bumham was aware of the following: that there were unjacketed Bumham
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`boilers still in use; that Bumham had previously specified that these unjaeketed boilers should be
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`covered with asbestos cement; that these boilers were in fact covered with asbestos cement; that
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`the asbestos cement would eventually have to be removed from the boilers when they were
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`replaced or discarded; that when the asbestos cement was removed from the boilers, dust
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`containing asbestos would be dispersed in the air and could be breathed in by workers in the
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`vicinity, including workers who were not specifically working on the boilers; that Bumham never
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`tested or investigated the safety of asbestos despite the fact that it knew asbestos was being used
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`with its boilers; and that Bumham did not provide any warnings to any of these workers in
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`violation of its continuing duty to warn post sale. Based on these inferences, which the jury
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`could reasonably conclude based on the evidence presented at trial, there Was a rational basis for
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`the jury to conclude that Bumham “has intentionally done an act of an unreasonable character in
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`disregard of a known and obvious risk that was so great as to make it highly probable that harm
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`would follow and has done so with conscious indifference to the outcome‘.’
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`1d. Moreover, there
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`was evidence presented from which ajury eculd rationally conclude that Bumham could have
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`warned workers such as plaintiff in the 1970's that they were at risk whenhhey were in the
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`NYSCEF DOC. NO. 924
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`vicinity of the unjackcted boilers at the time that the asbestos cement was removed from the
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`boilers.
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`This exact issue was recently addressed by Justice Madden in Assénzio v. A.(). Smith
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`Water Products, Co.. Index No. 190008/2012 (Sup Ct. NY Co 2012).
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`In that decision, she
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`rejected the same argument being made in the present case that there wasiinsufficient evidence
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`before the jury to uphold a finding of recklessness as against Bumham under the standard set
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`forth by the Court of Appeals in Maltese. According to Justice Madden:
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`Plaintiffs presented sufficient evidence with respect to the dangers of asbestos exposure
`from publically available information as well as information availableIn various trade
`journals and1n other literature and1n government regulations and statutes, including
`worker’ s compensation laws, so that theJury could find that” Burnham knew or should
`have known of the dangers of exposure to asbestos. Moreover, sufficient evidence at trial
`was presented to establish that Bumham...specifled the use of, or knew that asbestos
`containing products would be used in their equipment.
`‘
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`This evidence establishes sufficient proof to sustain the jury’s determination that
`Burnham acted with gross indifference to the rights or safety of others, as Bumham knew
`of the dangers of asbestos; it had a history of selling boilers for over one hundred years; it
`specified the use of asbestos insulation on the exterior and interior; of its boilers and sold
`such insulation; it failed to perform any testing with respect to exposure to asbestos, and
`it failed to warn about the dangers of asbestos.
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`Moreover, as the First Department found in the Dummitt case against Crane, there was;
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`sufficient evidence showing [defendant’s] reckless disregard for the hazards posed by
`asbestos. The evidence demonstrated that [defendant] had received warnings about the
`dangers of asbestos as early as the 1930's from various trade associations, and [defendant]
`admitted it knew of the dangers of asbestos by the early 1970's.
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`Similarly, in this case against Burnham, there was evidence admitted from which a jury could
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`reasonably infer that defendant had received warnings about the danger of asbestos as early as the
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`1930's from various trade associations and that it knew about the dangers of asbestos in the
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
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`1970's when plaintiff was allegedly exposed to asbestos from Bumham boilers.
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`Bumham next argues that the court’s instruction on recklessness was improper as it failed
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`to adequately convey to the jury the level of culpability required to support a recklessness
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`finding.
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`It argues that the jury charge contained in pattern jury instruction 2275.2, which is the
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`charge that this court used, fails to incorporate the standard required by the Court of Appeals
`decision in Maltese. This argument is without basis as the court finds that, the language it used to
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`instruct thejury on the recklessness standard was proper. As Justice Madden recently held in
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`Assenzio v. A.() Water Smith Prod, “in Maltese, the court did not hold that any specific language
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`was required, and the PJ I charge, as given, adequately expressed the standard.” Moreover, the
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`First Department in In re New York City Asbestos Litig. (Konstantin and Dummitt), 121 A.D.3d
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`230 (1Sl Dept 2014) (“Dummitt”) recently upheld a finding of recklessness as to other defendants
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`in an asbestos product liability litigation where the same exact language was used in charging the
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`jury on recklessness. Moreover, Bumham has not cited any cases where a court has found that
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`the language used in the pattern jury instruction to define recklessness has] ever been overturned
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`by any court as not articulating the proper standard despite the fact that this charge has been used
`in countless litigations, including numerous asbestos and non—asbestos cases, and despite the fact
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`that the Maltese decision is from 1997, approximately eighteen years agofi
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`Bumham next argues that it is entitled to a directed verdict or judgment notwithstanding
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`the verdict because plaintiff’s expert opinion was insufficient as a matter of law to establish
`specific causation as required under the holding in Parker v. Mobil Oil Corp, 7 N.Y.3d 434
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`(2006).
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`In Parker, the court held that it “is well established that an opinion on causation should
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`set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`NYSCEF DOC. NO. 924
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`(general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the
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`illness (specific causation)” 1d. at 448. However, “it is not always necessary for a plaintiff to
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`quantify exposure levels precisely or use the dose—response relationship, provided that whatever
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`methods an expert uses to establish causation are generally accepted in the scientific
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`community.” Id.
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`In that case, the court rejected the plaintiff‘s experts’ testimony that exposure to
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`gasoline caused plaintiff’s AML as “[p]laintiff’s experts were unable to identify a single
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`epidemiologic study finding an increased risk of AML a s a result of exposure to gasoline.” 1d.
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`at 450.
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`In Cornell v. 360 W. 515! Realty LLC, 22 NY. 762 (2014), the C0urt of Appeals again
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`addressed the issue of what showing must be made to establish specific causation in a toxic tort
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`case.
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`It stated as follows:
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`Parker explains that ‘precise quantification’ or a ‘dose~response relationship’ or ‘an exact
`numerical value’ is not required to make a showing of specific causation. Parker by no
`means, though, dispensed with a plaintiff’s burden to establish sufficient exposure to a
`substance to cause the claimed adverse health effect....As the Circuit Court of Appeals for
`the Eight Circuit commented...., there must be some evidence from which a factfinder can
`conclude that the plaintiff was exposed to levels of that agent that are known to cause the
`kind of harm that the plaintiff claims to have suffered.
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`1d. at 784.
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`In Luslenring v. AC&S, Inc, 13 A.D.3d 69 (1“ Dept 2004), lv. denied, 4 N.Y.3d 708
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`(2005), an asbestos case, the First Department addressed what showing must be made to establish
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`specific causation in an asbestos case. According to the court, the evidence showed that
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`plaintiffs worked all day for long periods in clouds of dust which was raised by the manipulation
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`and crushing of defendant’s packing and gaskets, which were made with asbestos. The court
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`found that “[v]alid expert testimony indicated that such dust, raised from asbestos products and
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`3F DOC. NO. 924
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`not just from industrial air in general, necessarily contains enough asbestos to cause
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`mesothelioma.” Id. at 70.
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`In the present case, the court finds that the expert testimony presented in this case was
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`sufficient to satisfy the standards enunciated by the Court of Appeals in Parker and Cornell.
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`Initially, the trial and appellate courts in New York which have addressed the issue, both before
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`and after Parker have been decided, have consistently heldthat the presence of visible dust from
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`an asbestos containing product establishes a sufficient foundation for an expert to conclude that
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`the use of such product was a substantial factor in causing mesothelioma and Bumham has not
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`cited to any New York cases where a court has not upheld a finding of specific causation where
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`visible dust was present. See, e.g., Lustenring.; Perm v. Amchem, 85 A.Di3d 475, 476 (1“ Dept
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`2010)(“On the issue of causation, sufficient evidence was provided by [plaintiffs] testimony that
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`visible dust emanated while working with the dental liners and by his expert’s testimony that
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`such dust must have contained enough asbestos to cause his mesothelioma”); Matter ofNew York
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`Asbestos Litig, 28 A.D.3d 255 (15! Dept 2006)(evidence fairly interpretedfipermitted liability
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`verdicts reached by the jury where the “evidence demonstrated that both plaintiffs were regularly
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`exposed to dust from working with defendant’s gaskets and packing, which were made of
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`asbestos. The experts indicated that such dust from asbestos containing products contained
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`enough asbestos to cause mesothelioma”); Berger v. Achem Products, 13 'Misc. 3d 335, 346 (Sup
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`Ct NY C0 2006)( “It has long been established that mesothelioma caused by asbestos exposure is
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`frequently not dose related and relatively small numbers of fiber that are inhaled may remain in
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`the lungs for long periods and cause mesothelioma”). Cf Arthur Juni v. A.0. Smith Water
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`Product, index No. 190315/2012 (Sup Ct NY Co 2015)(evidence offered insufficient to prove
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`810451/2016
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`7
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`S
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`09/11/20.
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
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`3F DOC. NO. 924
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`INDEX NO~
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`R*.C*.IV*.D \IYSCEF:
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`_
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`that dust to which plaintiff was exposed contained any asbestos).
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`Moreover, the court finds that the expert testimony of David Schwartz, MD. was
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`sufficient to present the issue of specific causation to thejury to be resolved.
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`lnitially, he
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`testified that there is no safe level of exposure to asbestos in regard to catising mesothelioma and
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`that there are people who develop mesothelioma after being exposed to extraordinarily low
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`concentrations of asbestos. Tr. at 1019. He further testified that:
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`you can never pick out the one fiber that caused the disease, even‘though its possible that
`one fiber could cause disease. The risk is related to the amount ofexposure that someone
`experienced throughout their lifetime, and you can’t pick apart those individual
`exposures. What you can say is the exposures that took place within the latency period,
`the first exposure to onset of disease are all related to, and contribute to the risk of
`developing the particular outcome, in this case, the mesothelioma?
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`All we know is the cumulative exposure increased his cumulative Erisk of developing
`mesothelioma and that all of the exposure contributed to the development of his
`mesothelioma.
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`Tr. at 1021, 1029. He further testified that plaintiff‘s mesothelioma was 'caused by occupational
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`exposure to asbestos. Tr. at 1027. He testified that plaintif “was exposed to asbestos between
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`1960 and 1983. During that time he was exposed on a very regular basis to asbestos while
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`working as a steamfitter. He was exposed by virtue of his own activities as a steamfitter and by
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`virtue of working around others who were working in his environment on‘products that were, or
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`machinery that was insulated with asbestos.” Tr. at 1028. Finally, he alsoitestified that based on
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`plaintiff’s deposition testimony that while he was working as a steamfitter, he worked around
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`many Bumham boilers, that other workers were tearing off insulation from the Bumham boilers
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`in his presence and that there would be visible dust from this activity, that “the exposure to the
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`dust from the boilers was a substantial contributing factor in terms of Mr. Hillyer developing
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`11
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`3F DOC. NO. 924
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`INDEX NO~
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`R*.C*.IV*.D \IYSCEF:
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`810451/2016
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`09/11/2017
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`mesothelioma.” Tr. at 1036. The basis for this opinion was his “personal and professional
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`training in occupational environmental medicine as well as [his] experience in this area, the peer
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`reviewed literature, the opinions of professional societies, and the opinion of scientific
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`organizations as well as regulatory bodies.” Tr. at 1036.
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`The court finds that the methods used by plaintiff’s expert at trial to establish that
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`plaintiff was exposed to sufficient levels of asbestos from Bumham’s products for those products
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`to have been a substantial contributing factor in causing plaintiffs mesothelioma are generally
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`accepted in the scientific community. Based on the testimony presented at trial, the expert
`sufficiently established that it is generally accepted in the scientific community that there is no
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`safe level of exposure to asbestos, that even a low dose exposure to asbestos can cause
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`mesothelioma and that plaintiff was exposed to asbestos from Bumham boilers based on the
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`release of visible dust when the insulation was removed. As the Court ofiAppeals made clear in
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`Parker. “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the
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`dose—response relationship, provided that whatever methods an expert uses to establish causation
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`are generally accepted in the scientific community.” 1d.
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`Burnham’s argument that it is entitled to a new trial because the jury’s allocation of fault
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`is not supported by the evidence is without basis. The court finds that there was a sufficient
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`evidentiary basis for the jury’s determination as to the allocation of fault based on the evidence
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`presented at trial, which allocated 30 percent of the fault to Burnham.
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`The next issue the court must address is whether thejury’s award to Hillyer of
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`$20,000,000 for past pain and suffering from the onset of mesothelioma to the date of his death
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`was excessive and if so, whether a new trial on the issue of damages should be ordered. The
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`12
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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO. 810451/2016
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`RECEIVED NYSCEF: 09/11/2017
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`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`NYSCEF DOC. NO. 924
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`INDEX NO~
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`RaCaIVaD VYSCEF:
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`810451/2016
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`09/11/2017
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`
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`standard to be applied is whether the award “deviates materially from what would be reasonable
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`compensation.” CPLR §5501 (c).
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`In order to determine whether the award was excessive, the
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`court must compare the instant case with analogous cases with awards that have been previously
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`upheld. See Donlon v. City ofNew York, 284 A.D.2d 13, 18 (15‘ Dept 2001). The most recent
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`decision from the First Department addressing the issue of the amount of damages to be awarded
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`in a mesothelioma case is Dummitt.
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`In that case, the First Department upheld an award of past
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`pantandsuflbfingof$451nflhonand$35inflhontbrfuunepaniandsuflefing.Itasouphdd
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`an award of past pain and suffering of $5.5 million and an award for future pain and suffering for
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`$2.5 million.
`
`In other decisions, the First Department upheld an award of$l.5 million for past
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`pan)andsuflenngand$2rnflhonforfuuuepaniandsufiefingCPennv.AbheniProducm,85
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`A.D.3d 475) (1Sl Dept 2011) and $3 million and $4.5 million respectively (Matter ofNew York
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`Asbestos Litig, Marshall, 28 A.D.3d 255) (151 Dept 2006).
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`In the instant case, the jury awarded plaintiff $20,000,000 for past. pain and suffering
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`from the date of diagnosis until the time of death. He started experiencing symptoms in March
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`of 2012, he was diagnosed with mesothelioma in March 2013 and passed faway in September
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`2014. During that period, he experienced severe pain; shortness of breath; great difficulty
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`breathing; multiple thoracenteses; debilitating chemotherapy treatments; a radical pleurectomy;
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`radiation; and pneumonia. Based on all the circumstances of Mr. Hillyer’s injuries, the award of
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`$20,000,000 for past pain and suffering deviates materially from what would be reasonable
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`compensation. Pursuant to CPLR 5501 (c), the award for past pain and suffering is vacated and a
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`new trial ordered on the issue of damages unless plaintiff within 30 days of service ofa copy of
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`this decision and order with notice of entry stipulates to reduce the awardito $6 million.
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`13
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`

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`FILED: ERIE COUNTY CLERK 09/11/2017 02:26 PM
`NYSCEF DOC. NO. 924
`
`INDEX NO. 810451/2016
`
`RECEIVED NYSCEF: 09/11/2017
`
`FILED: ERIE COUNTY CLERK 09m2017 02:26 PM
`
`NYSCEF DOC. NO. 924
`
`V
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`INDEX NO~ 810451/2016
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`
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`
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`RaCaIVaD VYSCEF: 09/11/2017
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`
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`Accordingly, it is hereby
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`ORDERED that the branches of Bumham’s motion for ajudgment notwithstanding the
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`verdict is denied; and it is further
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`i
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`ORDERED that the portion of Bumham’s motion to set aside the verdict is granted only
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`to the extent of vacating the award of past pain and suffering to Hillyer and ordering a new trial
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`on this issue unless plaintiff within thirty days of service ofa copy ofthis decision and order with
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`notice of entry stipulates to reduce the amount of past pain and sufferingito $6 million; and it is
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`further
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`t
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`ORDERED that the balance of Bumham’s motion to set aside the verdict is denied.
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`Dated: gt \9 ii;
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`Enter:
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`'
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`i E
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`14
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