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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
`PRESENT:
`HON. MARTIN SHULMAN
`PART _1_
`Justice
`
`Frank Gondar,
`
`A.O. Smith Water Products, et al.
`
`-v -
`
`INDEX NO. 190079/15
`
`MOTION SEQ. NO. 021
`
`The following papers, numbered 1 to 5 were read on this post-trial motion:
`
`Notice of Motion - Affidavits - Exhibits A-5
`Answering Affidavits - Exhibits A-T
`Replying Affidavits - Exhibits T-Y
`Supp. Letter Brief in Further Opp.
`Supp. Letter Brief in Further Support
`Cross-Motion: D Yes pi{No
`
`Papers Numbered
`1
`2
`3
`4
`5
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`In a December 7, 2016 bench decision and order on the record, this court granted the
`sole remaining defendant, Burnham LLC's (Burnham) post-verdict motion (CPLR 4404), in part,
`for remittitur of the June 25, 2016 jury verdict, but inter alia upheld the verdict as to the jury
`finding Burnham 25% liable for plaintiff, Frank Gondar's pleural mesothelioma, an asbestos(cid:173)
`related disease. Plaintiff was then alive.
`
`l3ased on a Fourth Department decision issued two weeks after the verdict (In re Eighth
`Jud. Dist. Asbestos Litig. [Pienta v A. W. Chesterton Co.], 141 AD3d 1127 [4'" Dept 2016]), and
`in the absence of any controlling precedent to the contrary, this court must grant Burnham's
`post-verdict motion to set aside that portion of the jury verdict which found Burnham had acted
`with reckless disregard for the plaintiff's safety. Because this court "used the charge set forth in
`the Pattern Jury Instructions, i.e., PJI 2:275.2, [then in use prior to the 2017 Edition of the
`Pattern Jury Instructions - Civil, this was in error as] that charge does not accurately reflect the
`standard set by the Court of Appeals in [Matter of New York City Asbestos Litig. (Maltese), 89
`NY2d 955, 956-957 (1997)], ... [and] in effect reduced plaintiff's burden of proof on ... [his]
`claim that [Burnham] acted with reckless disregard for ... [his] safety ... " (bracketed matter
`added). Pienta, 141 AD3d at 1128. Accordingly, it is
`
`ORDERED that the branch of Burnham's post-verdict motion for remittitur is granted
`setting aside the jury verdict on discrete damage awards for past and future pain and suffering
`and granting a new trial on the issue of damages unless, within ten days after service of a copy
`of this decision and order with notice of entry, plaintiff's administratrix executes a stipulation
`agreeing to decrease the jury's aggregate award for pain and suffering from $22 million to $7
`million; and it is further
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`ORDERED that the branch of Burnham's post-verdict motion is granted setting aside the
`jury verdict's finding of recklessness and granting Burnham a new trial on the issue of
`Burnham's alleged recklessness, unless plaintiff's administratrix executes a stipulation agreeing
`to withdraw or discontinue the recklessness claim; and it is further
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`ORDERED that the remaining branches of Burnham's post-verdict motion are denied in
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`their entirety as more fully set forth on the record (tran7;~· _ 0 ~~
`
`Dated: February 10. 2017
`
`C::J,, 1
`Martin Shulman, J.S.C.
`Check one: 0 FINAL DISPOSITION ~ NON-FINAL DISPOSITION
`Check if appropriate: 0 DO NOT POST
`D REFERENCE
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`FILED: NEW YORK COUNTY CLERK 02/14/2017 10:40 AMFILED: NEW YORK COUNTY CLERK 09/21/2017 07:05 PM
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK -. CIVIL TERM - PART 1
`--------------------------------------------------x
`FRANK GONDAR,
`
`-against-
`
`Plaintiff,
`
`Index No.
`190079/15
`
`AO SMITH WATER PRODUCTS, et al,
`
`Defendants.
`----------- --------------------------------------x
`60 Cent.re Street
`New York, New York
`POST-VERDICT MOTION
`December 7, 2016
`
`BEFORE:
`
`HONORABLE MARTIN SHULMAN,
`
`JUSTICE
`
`APPEARANCES:
`
`BELLUCK & FOX, LLP
`ATTORNEYS FOR THE PLAINTIFF
`546 FIFTH AVENUE
`NEW YORK, NEW YORK 10036
`SETH A. DYMOND, ESQ.,
`JAMES C. LONG, ESQ.,
`
`BY:
`
`McELROY DEUTSCH MULVANEY & CARPENTER, LLP
`ATTORNEYS FOR DEFENDANT BURNHAM
`1300 MOUNT KEMBLE AVENUE
`MORRISTOWN, NEW JERSEY
`07962
`NANCY McDONALD, ESQ.,
`
`BY:
`
`VINCENT. J. PALOMBO
`OFFICIAL COURT REPORTER
`
`Vincent J Palombo - Official Court Reporter
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`2 of 37
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`FILED: NEW YORK COUNTY CLERK 02/14/2017 10:40 AMFILED: NEW YORK COUNTY CLERK 09/21/2017 07:05 PM
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`RECEIVED NYSCEF: 02/14/2017RECEIVED NYSCEF: 09/21/2017
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`PROCEEDINGS
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`THE COURTi Before the Court is a post-verdict
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`motion by Burnham seeking, among other branches of
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`relief, an order vacating the verdict on various grounds
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`and a new trial and/or remittitur.
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`In support of that motion, Burnham submitted
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`the affirmation of Mr. Bain, as well as a motion
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`consisting of Exhibits A through F, as well as T through
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`·Y, one includes a memorandum of law, which is part of
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`the record.
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`In opposition, I have the affirmation in
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`opposition by Mr. Dymond, which consists of Exhibits A
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`through R, and accompanying that opposition is
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`Mr. Dymond's memorandum of law.
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`There was a further reply memorandum submitted
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`by Burnham, as well as an October 27, 2016, letter with
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`Exhibit tabs A through C, apprising the Court of a
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`trilogy of Appellate Division decisions, (i.e. the
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`Peraica, Sweberg and Hackshaw decisions) to assist the
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`Court in addressing, if at all, the remittitur branch of
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`Burnham's motion.
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`Off the record.
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`(Discussion held off the record.)
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`(Case set aside; later recalled.)
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`THE COURT:
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`I have outlined the papers, did I
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`fairly cover the papers that are the subject of this
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`PROCEEDINGS
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`motion?
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`MR. DYMOND: Yes.
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`THE COURT:
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`So during the oral argument I may
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`ask you to speak, I may ask questions, and/or just
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`simply begin talking.
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`So, here's what we know. Essentially, the
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`scope of the plaintiff's work from 1953 to about 1973
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`involved constructing finished basements. And in the
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`scope of that work, Mr. Gondar testified to doing
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`framing work, sheetrocking, where he constan~ly used
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`joint compound and mixing same, and then applying three
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`coats.
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`It was described as a ·very dusty process.
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`He described doing electrical work where he
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`installed a lot of outlets, which implicated Litolier
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`and Progress products.
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`He described plumbing work.
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`He described painting.
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`He described installing floor tile, including
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`the Amtico, Azrock and Kentile·brand names.
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`He described installing Homasote fire retardant·
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`board used around boilers.
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`He described using roof shingles manufactured
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`by Certainteed, and he described using DAP caulk around
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`windows.
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`Essentially, for purposes of this motion, and
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`PROCEEDINGS
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`during the course of the trial against Burnham, claimed
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`bystander exposure to external boiler insulation
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`removal, and in the course of his deposition that was
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`shown or either read to the jury or his de bene esse
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`deposition played to the jury, he described visible dust
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`during the boiler rip-outs. And they involved four
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`companies including Burnham, ·Kohler, Peerless and - -
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`MR. DYMOND: There were six
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`THE COURT:
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`I'm sorry, there were six.
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`He described six boiler companies, Burnham,
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`Kohler Peerless --
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`MR. DYMOND: American Standard, Holland.
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`MS. McDONALD: Holland, Kohler, Lenox,
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`Peerless.
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`THE COURT: Okay, good.
`Now, essentially, as I understand it correctly,
`and if I misstate something, Ms. McDonald,
`jump in, but
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`Burnham argues that during the 21 year period in which
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`he was engaged in the construction business, at most
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`when he was exposed to the boiler rip-outs and visibl·e
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`dust they generated, it totaled about 17 months and
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`arguably only during the warm summer months, because
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`boilers are not otherwise ripped out during the winter.
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`MS. McDONALD: And that's not argued. That's
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`based on plaintiff admitting that.
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`PROCEEDINGS
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`THE COURT:
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`I understand.
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`MS. McDONALD: Okay.
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`THE COURT: Against that backdrop, Burnham
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`claims that the Cour~ should set aside the verdict
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`against the weight of the evidence because the jury
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`wrongly assumed that he worked on basement renovations
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`for 30 hours_ a week.
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`And the argument it presented here was that
`while an admitted New York City police officer working
`full-time and working an approximate 35, 40-hour shift
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`per week, and at the same time pursuing a college
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`education which spanned over six years, and while
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`pursuing a master's degree over ten months, where did he
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`find the time to participate in basement renovations?
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`So, basically, Burnham calls into question the
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`factual accuracy of the 30-hour week over the 21 year
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`period, and therefore, the follow-up on that: The
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`hypothetical posed to Dr. Moline, predicated in part on
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`the assumption that Mr. Gondar was working a 30-hour
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`week, which would include being a bystander to boiler
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`rip-outs, was not based on solid ground.
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`Fair enough?
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`MS. McDONALD: Well, ,yes, and the fact that
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`Mr. Gondar himself stated that it was only sometimes
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`that he saw the rip-out. So that's just another fact
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`PROCEEDINGS
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`that's presented to the jury and I think this Court has
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`to consider it.
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`THE COURT: You further argue that this Court
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`erred in charging the. standard PJI recklessness charge,
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`which according to Burnham is contrary to the Maltese
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`standard. And, essentially, what you are arguing is
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`that the actual charge should have read, "the actor had
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`intentionally done an act of an unreasonable character
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`·in disregard of a known or obvious risk that was ·so
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`great as to make it highly probable that harm would
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`follow and has done so with conscious indifference to
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`the outcome." This was quoted from the Maltese
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`decision, and in accordance with your post-verdict
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`brief, it was referred to by the Fourth Department in
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`the Holdsworth decision issued July of this year,
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`several weeks after the verdict was rendered in Gondar.
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`You further claim that·even if the appropriate
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`recklessness charge was given, that there was. no basis
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`to charge recklessness based ·on the evidence presented
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`in this case, stating that the state of the art
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`testimony presented by Dr. Rosner did not prove Burnham
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`had the knowledge of the known risk o·f using asbestos in
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`its boilers, among other findings, as set forth in your
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`brief and supporting papers; correct?
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`MS. McDONALD: Yes, there are other arguments.
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`PROCEEDINGS
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`THE COURT: You further argue that because
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`Burnham never manufactured asbestos-containing
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`materials, such as asbestos cement and the like, it did
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`not sell or distribute asbestos-containing cement after
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`1932, stopped recommending the use of asbestos(cid:173)
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`containing cement or insulation material after 1936, and
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`never had any asbestos exposure related Workers'
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`Compensation claims based on those factors, they're just
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`simply wasn't enough on this record to establish that
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`Burnham was reckless in failing to give a warning when
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`it knew its unjacketed sectional boilers were being
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`ripped out in the 1970s.
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`MS. McDONALD:
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`Judge, actually -- everything
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`you just said is true, but the -- what the court's
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`.references charge is -- what you also have to look at is
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`the evidence that plaintiffs submitted in support .of
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`their claim and where was the evidence that we had
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`actual knowledge of the dangers of asbestos. At best,
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`we had a general awareness, like the Maltese court found
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`Westinghouse had based on evidence that demonstrated far
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`more knowledge about the dangers of asbestos, in that
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`case when you compare the facts of that case to this
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`case, the plaintiff's evidence was 1937 -- I have it
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`here -- the Pennsylvania occupational act -(cid:173)
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`Occupational Safety Act, I forget the precise word --
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`THE COURT: What the plaintiffs have stated is
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`because Burnham had principal places of business in at
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`least three or four states, I'm sure Mr. Dymond can
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`remind me, which would include Pennsylvania, New Jersey,
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`New York, including a.principal place upstate and that
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`they were aware in those states that workers working
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`with asbestos, either as end-users for manufacturers,
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`distributors and/or as bystanders, et cetera, would be
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`getting asbestos- related diseases during the scope of
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`their employment, that they would be entitled to get
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`Workers' Compensation. And Burnham was charged with
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`that knowledge for a variety of reasons, charged with it
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`because they were required to have knowledge of it, they
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`were charged with it because Burnham•s corporate
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`representative said Burnham knew about it, and they were
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`charged with it because Burnham learned about this and
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`other related information by being active in the various
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`trade associations that disseminated this kind of
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`information from the 1930s through the 1970-s.
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`So, respectfully, Burnham had actual knowledge
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`of the dangers of asbestos.
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`The question is does this rise to the level of
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`being reckless. That's a separate issue. So this
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`record clearly establ·ished that they had actual
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`knowledge.
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`Moreover, if you read the gross negligence
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`standard, it states what is known or obvious to the
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`arguable tort feasor, so even if a defendant didn't have
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`actual knowledge, it could be found to be reckless, if
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`def~ndant should have made it its business to learn
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`about the hazards of asbestos. But, hold that thought
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`as I want to go back to recklessness a little later.
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`Right now, I want to go through Burnham's shopping list
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`of errors and problems.
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`Burnham_also challenges the allocation of fault
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`as being irrational or against the weight of the
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`evidence, particularly·, when the testimony came in that
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`all six boiler companies had similar situated
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`circumstances ~-
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`·let me restate it differently.
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`That one could circumstantially infer from the
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`testimony prese.nted that Mr. Gondar was exposed in a
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`similar manner from the various boiler rip-outs among
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`the six companies. So it would appear to be irrational
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`for the jury to allocate 25 percent to Burnham and only
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`four percent to the other five companies, based on what
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`I've summarized.
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`Fair?
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`MS. McDONALD: Almost. You said that. the jury
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`could circumstantially infer that they were similar -(cid:173)
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`THE COURT: Well, yes, because there was no
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`specific causation as to the other.five companies.
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`You see, we had specific causation te.stimony
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`for some .of the other products; ·_but there were none for
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`the other five companies, only for Burnham. That's one
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`part·of it.
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`So that's. how -Burnham was_ able to at least get
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`these five companies on the verdict sheet, because
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`through general testimony, .one could iI).fer causation.
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`On this record, there were no specific
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`causation· facts in a hypothetical_for the experts to
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`specifically opine that Mr ... Gondar's exposure to
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`asbestos external insulation on the boilers of the other
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`.
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`five companies cumulatively contributed to causing his
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`mesothelioma.
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`In the absence· of this testimony, and as
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`plaintiff argued.in the opposition memo, this can
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`explain the disparity in the allocation of fault
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`percentages.
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`What troubles me a little .bit is the claim that
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`my comment regarding Mr. Pepper's t~stimony or arguably
`direct criticism bolstered the finding of culpability to
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`either _boost the allocation of fault percentage and/or
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`establish a finding of recklessness.
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`I found this surprising becau:3e I recall
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`vividly Mr. Radcliffe or yourself present· in court and
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`FILED: NEW YORK COUNTY CLERK 02/14/2017 10:40 AMFILED: NEW YORK COUNTY CLERK 09/21/2017 07:05 PM
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`saying nothing.
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`I think Mr. Radcliffe made the actual
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`motion the following Monday after the Friday, for a
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`mistrial.
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`I was somewhat flummoxed by this application
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`because I didn't quite understand it.
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`I understood it
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`intellectually, but I didn't understand it in the
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`context of what was going on the prior Friday. That
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`Friday, I believe, Mr. Billasky was cross-examining
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`Mr. Pepper. We were in the midst of cross examination
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`after a long direct examination. During the course of
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`cross-examination, I believe there were discussions
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`about certain documents that describe engineering
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`departments or matters of that nature, and there was
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`some question about whether the Burnham engineers could
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`have tested, something along those lines, and I did
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`sustain the objection, and I think the nature of what
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`was going back and forth, I more or less said, well,
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`Burnham didn't do a lot based on what was testified to
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`thus far. But, it was not a comment or criticism of the
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`substantive import of his testimony, but what we heard
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`so far.
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`And meanwhile, Plaintiff's counsel completed
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`his cross. There was redirect. Recross.
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`I must state
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`that having been a trial Judge for 20 years and having
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`had the privilege of having well-established competent
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`counsel in front of the Court, there is no question that
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`FILED: NEW YORK COUNTY CLERK 02/14/2017 10:40 AMFILED: NEW YORK COUNTY CLERK 09/21/2017 07:05 PM
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`we were dealing with the A-team of counsel during this
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`trial. So if I had really committed what would be
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`serious judicial faux pas, all of the defense counsel
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`would have jumped up and objected. Nobody jumped up,
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`which meant that everybody-understood I did nothing to
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`compromise the impartiality of my role here during the
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`course of this trial. There was no objection made by
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`any of Burnham's highly-experienced, competent counsel
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`immediately after my comment to potentially give some
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`curative instruction.
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`I venture to say the jury had no
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`memory of what I said then. There was no attempt to
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`read back anything that I may have said. More·
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`importantly, to the extent that Burnham's brief claims
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`that I didn't provide any kind of instruction to this
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`jury, PJI 1:25 was_read to the jury very carefully.
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`If
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`I'm not mistaken, and remind me if I am wrong, I think
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`we even had my charges shown_ on the PowerPoint -- did we
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`do that at this trial?
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`MR. LONG: Didn't you give copies to them to
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`read along with?
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`THE COURT:
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`I gave them copies, but I'm not
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`sure if I actually scrolled my charges as I was reading
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`to them.
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`I've done it a few times.
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`MR. LONG:
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`I don't recall that you did, your
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`Honor.
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`THE COURT: Fair enough, but PJI 1:25 makes it
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`very clear that summations, opening statements, things
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`of that nature and anything I may have said about the
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`evidence -- about the facts, all of it is not evidence.
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`I may have also given them charges on the
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`jury's function, the Court!s function and I believe in
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`those charges I make it very clear that the finders of
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`facts are the jurors, not the judge and no one may
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`invade their province, only they cari find the facts.
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`Nothing r·say about facts.is meaningful at all.
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`I just
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`charge them on the law, that-' s what I am r~spc:insible for
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`giving.
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`So under those circumstances:
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`a)
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`I believe it
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`was harmless; and b) I believe any objection was clearly
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`waived.
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`I-want to emphasize that your request for a
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`mistrial directly can be requested at any time, but
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`that's not the issue here. You conflate that position
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`with the position that I erred and you didn't timely
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`object so that I could cure it, if I did err.
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`So to the extent.that you rest on my comment as
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`constituting reversible error warranting a mistrial or
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`retrial on the issue of recklessness or allocation of
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`fault, there is no basis for that position and so to the
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`extent that you rely on that basis for vacatur, that
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`branch of your post-verdict motion is denied.
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`You also challenge Dr. Moline's specific
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`causation testimony, largely on the strength of Parker
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`and its progeny, that Dr. Moline's testimony .. failed to
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`provide a scientific expression for the dose response
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`relationship warranting the vacatur of the verdict.
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`What makes it interesting is that Burnham
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`adopted Dr. Moline's causation testimony for its Article
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`16 burden to charge other tort feasors with liability,
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`and from my point of view, waived-any challenges to her
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`causation testimony against Burnham.
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`I know we have a separate issue of alternative
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`use, but in searching this record, it became clear that
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`this issue wasn't going to this jury. Saying Burnham
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`doesn't think Dr. Moline's opinion amounts to much,. but
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`adopting it wholesale to establish the liability of the
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`other tort feasors and to allocate fault is much more
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`than "pleading" alternative theories,
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`Consistent with what I stated earlier, Burnham
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`is actually relying on the very criteria and exact
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`methodology for plaintiff's prima facie case against
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`Burnham for its Article 16 claims, whereas -- and at the
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`same time it inconsistently argued the very criteria is
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`legally insufficient.
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`The way I see it, you actually concede that
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`this evidence is legally sufficient and constitutes a
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`valid scientific formulation.
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`Going back to Parker, Parker and it's progeny
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`do not require precise quantification as to the dose
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`response relationship or an express numerical value for
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`specific causation. Visible dust is factually and
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`legally sufficient for plaintiff's causation experts to
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`opine on.
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`Now,
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`I know that the plaintiff's briefs cite to
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`Penn, and basically, in your brief, you claim that Penn
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`decided after Parker acknowledged the visible dust
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`standard, and in that case we were dealing with low dose
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`release of asbestos from dental liners and constituted
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`scientific expression. But it gets better, because in
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`the Sweberg and Hackshaw cases, the Appellate Division
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`had the opportunity to address a record where there was
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`no quantification, but a description of visible dust,
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`which was part of the hypothetical that allowed for the
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`specific causation testimony. And, of course, there are
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`different facts there, but essentially, there was a
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`description of dust in the room, dust on clothes, et
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`cetera, and the Appellate Division made clear that
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`plaintiff's expert was in a position to consider the
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`visible dust in giving the specific causation opinion,
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`and there was no requirement to quantify the exposure,
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`and they re-cite to Lustenring, Penn
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`MR. DYMOND: Marshall.
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`THE COURT:
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`I'll give the cites to these cases:
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`Penn, 85 AD3d 475 (1st Dept., 2011), Marshall, 28 AD3d
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`255 (1st Dept.; 2006) and Lustering, 12 AD3d 69 (1st
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`Dept, 2004) .
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`So, with all due respect, that particular
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`branch of your motion to set aside the verdict as
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`questioning the ability of Dr. Moline to give an opinion
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`based on the description of the work environment during
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`Mr. Gondar's exposure, is not sustainable. Moreover,
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`the Jury was in a position to weigh the credibility of
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`Mr. Gondar and the description of how he was able to
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`juggle his different responsibilities and weigh that
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`against the Social Security records shown to the jury.
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`Credibility is for the jury to determine. Evidently,
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`they believed Mr. Gondar.
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`It's not my place to
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`substitute my judgment for that of the j'ury. They
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`believed he was exposed to asbestos-containing products
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`during a 30-hour work week. Far be it for me to
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`substitute my judgement for their. findings of
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`credibility.
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`(Discussion held off the.record.)
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`THE COURT:
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`I want to go back to the general
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`foundation, anq. specific causation.
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`In this vein, Burnham's own expert, Dr. Poole
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`refers to the fiber release studies regarding boiler rip
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`outs, where the level of exposure to bystanders were
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`reported at the highest levels in the scientific
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`literature. Moreover, Dr .. - iVIarkowit.z, in his general
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`causation testimony, refers to at least 12 or more
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`studies which address low dose exposures causing
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`mesothelioma.
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`So there were valid lines of reasoning to
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`support general and specific causation. Moreover, there
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`were valid lines of reasoning to support that plaintiff
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`was exposed to amosite, external insulation, which is
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`more toxic than chrysotile, based on the literature and
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`based on the evidence of record.
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`Interestingly enough, there was a defense
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`expert, Dr. Crapo, who testified on behalf of Amtico,
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`and his testimony.was adopted by Burnham. And Dr. Crapo
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`testified that the vast majority of insulating cement
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`presumably at least an inch-and-a-half thick encasing
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`the boilers includ_ing Burnham boilers was comprised of
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`.amosite. That's in this record.
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`Further, I think it's important to make a
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`record on this score and I .cite to.the Tronlone
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`decision, 297 AD2d 528 (1st Dept 2002), an important
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`decision to understand here, because the Appellate
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`NYSCEF DOC. NO. 660NYSCEF DOC. NO. 680
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`RECEIVED NYSCEF: 02/14/2017RECEIVED NYSCEF: 09/21/2017
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`Division First Department addressed the nature of
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`exposure in reviewing an order denying defendant's
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`motion for summary judgement. And this is what the
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`APPELLATE COURT said:
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`"We find plaintiff's opposition
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`sufficient to raise triable iss~es of fact as to, 1),
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`whether asbestos fi