throbber
FILED: NEW YORK COUNTY CLERK 10/14/2016 05:40 PM
`FILED: NEW YORK COUNTY CLERK 102016 05:40 P I
`NYSCEF DOC. NO. 255
`NYSCEF DOC. NO. 255
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`INDEX NO. 190087/2014
`INDEX N0- 190087/2014
`RECEIVED NYSCEF: 10/14/2016
`RECEIVED NYSCEF: 10/14/2016
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`EXHIBIT B
`EXHIBIT B
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`FILED: NEW YORK COUNTY CLERK 05/04/2016 09:30 AM
`NYSCEF DOC. NO. 235
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`INDEX NO. 190087/2014
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`RECEIVED NYSCEF: 05/04/2016
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK: Part 55
`------------------------------------------------------------------X
`IN RE: NEW YORK CITY ASBESTOS LITIGATION
`------------------------------------------------------------------X
`WALTER MILLER,
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`Plaintiff,
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`Index No.190087/2014
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`-against-
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`BMW OF NORTH AMERICA, et al.,
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`Defendants.
`------------------------------------------------------------------X
`HON. CYNTHIA KERN, J.S.C.
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`AMENDED
`DECISION/ORDER
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`Recitation, as required by CPLR 2219 (a), ofthe papers considered in the review ofthis motion
`for: --------------------------------------
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`Papers
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`Notice of Motion and Affidavits Annexed....................................
`Answering Affidavits...................................................................
`Replying Affidavits......................................................................
`Exhibits ..................................................................................... .
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`Numbered
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`__ _,1 _ _
`-=2 __
`_....;3 _ _
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`The Decision/Order ofthis court dated April25, 2016 is hereby amended as follows:
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`Plaintiff Walter Miller instituted this asbestos product-liability action. He testified that
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`he was exposed to asbestos through his work as an auto mechanic. He claims that he was
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`exposed to asbestos containing dust from new drum brake linings that he and his fellow
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`mechanics would grind using a brake grinding machine manufactured by Arnmco. Plaintiff
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`testified at trial that the brake grinding machine generated dust. Defendant Hennessy Industries,
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`Inc. ("Ammco") has brought the present post-trial motion pursuant to CPLR § 4401 and§ 4404
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`and CPLR § 5501 seeking entry of judgment notwithstanding the verdict, a new trial, or in the
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`alternative, remittitur of damages.
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`Defendant Ammco was the only remaining defendant when the trial of this action
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`commenced. The jury rendered a verdict in favor of plaintiff and against defendant Ammco in
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`the amount of $25 million, consisting of $1 0 million for past pain and s~ffering and $15 million
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`for future pain and suffering. The jury allocated 86% percent of liability to Ammco and 14% to
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`other entities. The jury also found that Ammco was reckless in failing to warn of the toxic
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`hazards of asbestos.
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`Plaintiff, a mechanic, testified at trial regarding his exposure to Ammco grinders. He
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`testified that over a three and a half year period, he used an Ammco grinder to grind brakes
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`which contained asbestos. He claims that he was exposed to asbestos-containing dust while
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`grinding the brakes and that this exposure was a substantial factor in causing his mesothelioma.
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`Ammco makes a number of arguments as to why the verdict should be set aside. It argues
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`that (1) it did not owe plaintiff a legal duty to warn about the dangers of asbestos in automobile
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`brakes, which was a product that it did not manufacture; (2) the evidence offered at trial was
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`insufficient to establish general or specific causation under New York law; (3) the improper
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`comment by plaintiff's counsel during opening statement that at the close of the case, plaintiff
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`was going to ask for $50 million, warranted a mistrial: (4) it was entitled to a directed verdict on
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`plaintiff's claim that it acted in reckless disregard of the safety of others and that the court's
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`instruction on recklessness did not comport with controlling law; (5) the jury's allocation of
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`fault is against the weight of the evidence; and ( 6) the evidence offered at trial was insufficient to
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`support the jury's finding that plaintiff used an Ammco grinder and that Ammco failed to
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`\
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`~~
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`exercise reasonable care by marketing its grinders without an adequate warning. In the
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`alternative, it argues that it is entitled to a new trial or a remittitur becau~e the jury's award of
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`damages was excessive.
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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 ... 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 ... where the verdict is
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`contrary to the weight of the evidence, [or] in the interest of justice." 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 the jury. 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 (1 51 Dept 2005). Moreover, the
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`evidence must be construed in the light most favorable to the party that prevailed at trial. See
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`Motichka v. Cody, 279 A.D.2d 310 (1st 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
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`peculiarly within the province of the jury."' Torricelli v. Pisacano, 9 A.D.3d 291 (1st Dept 2004)
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`(citation omitted); see also Cholewinski v. Wisnicki, 21 A.D.3d 791 (1st Dept 2005)
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`Ammco initially argues that the verdict must be set aside on the ground that it had no duty
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`to warn about the dangers of asbestos in brakes manufactured by third parties because it had no
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`role in placing these asbestos-containing brakes in the stream of commerce. Before the trial
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`commenced, Ammco moved for summary judgment, arguing that under Rastelli v. Goodyear
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`Tire & Rubber Co, 79 N.Y.2d 289 (1992), it had no duty to warn plaintiff about dangers from
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`asbestos-containing brakes produced and sold by third parties. The motion for summary
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`judgment was denied by Justice Moulton before the trial commenced. The court found that
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`Ammco fell far short of demonstrating that it should prevail as a matter of law based on evidence
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`'
`presented by plaintiff and plaintiffs testimony that he and other mechanics used Ammco' s
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`product to grind asbestos-containing brakes; that the machine generated dust when it was used;
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`that defendant knew of the dangers of the dust created by its machine by the early 1970's; and
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`that it created a new attachment to better collect the dust in 1975, which it referred to in some of
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`its advertisements as an "asbestos dust collector". The court held that these "allegations create
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`a triable issue of fact as to whether defendant is liable for failing to warn of the dangers of using
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`its brake-arcing machine to grind asbestos-containing brake linings." The court distinguished
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`Rastelli on the ground that the tire and rim in Rastelli were meant to operate in a complementary
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`fashion where, in the instant case, "defendant's instrumentality was used'to alter the composition
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`of asbestos-containing products, and in doing so, it generated dust allegedly containing asbestos."
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`To the extent that Ammco is challenging the determination made by Judge Moulton
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`denying its motion for summary judgment and rejecting the argument made by Ammco that there
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`is no duty to warn as a matter of law and that this case should never have been sent for trial, its
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`remedy is to appeal the denial of summary judgment.
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`With respect to Ammco's argument that the use of the term foreseeable in the jury charge
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`was improper as it did not manufacture or sell asbestos products, the court finds that any
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`argument that the use of the term foreseeable was improper is waived as defendant never
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`objected to the use of the foreseeability language in the jury charge. See CPLR section 411 0-b
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`("No party may assign as error the giving or the failure to give an instruction unless he objects
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`thereto before the jury retires to consider its verdict stating the matter to which he objects and the
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`grounds of the objection''); Johnson v. Grant, 3 A.D.3d 720 (3d Dept 2004).
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`However, even if the court were to address this argument, it would find that the jury
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`instruction used by the court was proper and that it was proper to submit to the jury the question
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`as to whether defendant had a duty to warn plaintiff in this case about the dangers of using its
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`grinder with asbestos-containing brakes. The jury instruction which Ammco now challenges,
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`which is taken directly from the language contained in P JI 2: 120, stated:
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`The manufacturer or seller of a product which is reasonably certain to be harmful if used
`in a way that the manufacturer should reasonably foresee is under a duty to use reasonable
`care to give adequate warning of any dangers known to it or which in the use of
`reasonable care it should have known and which the user of the product ordinarily would
`not discover.
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`The issue of whether it is proper to use this charge was addressed by the First department in In re
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`New York City Asbestos Litig. (Konstantin and Dummitt), 121 A.D.3d 230 (1st Dept 2014).
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`In that case, the defendant argued to the First Department "that the use of the word
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`foreseeability in the jury charge was so prejudicial to it that, at the very least, a new trial is
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`necessary." !d. at 2~2. The court rejected this argument, holding as follows;
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`There is a place for the notion of foreseeability in failure to warn cases, where, as here,
`the manufacturer of an otherwise safe product purposely promotes the use of that product
`with components manufactured by others that it knows not to be safe. To be sure, mere
`foreseeability is not sufficient (see Surre, 831 F. Supp.2d at 802 ["a duty to warn against
`the dangers of a third party's product does not arise from foreseeability alone"]). This
`explains why the manufacturer was absolved of liability in Rastelli; where it was not
`concerned with what type of rims would be used with its tires. However, this case is not
`even close to Rastelli because of Crane's demonstrated interest in the use of asbestos
`components with its valves. Accordingly, the charge as given had no potential to
`communicate the wrong standard to the jury.
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`Id
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`The court further stated that the cases on the topic of the scope ofthe duty to warn:
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`together stand for the rather unremarkable proposition that where :there is no evidence that
`a manufacturer had any active role, interest, or influence in the type of products to be
`used in connection with its own product after it placed its producfinto the stream of
`commerce, it has no duty to warn. The cases cited by the Dummitt plaintiff, however,
`demonstrate that where a manufacturer does have a sufficiently significant role, interest,
`or influence in the type of component used with its product after it enters the stream of
`commerce, it may be held strictly liable if that component causes injury to an end user of
`the product.
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`Id at 250.
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`In the present case, as in Dummitt, the charge provided by the cou'rthad "no potential to
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`communicate the wrong standard to the jury" as there was evidence introduced during the trial
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`which demonstrated Ammco's "significant role, interest, or influence in the type of component
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`used with its product." Dummitt, 121 A.D.3d at 250. Initially, there wasevidence presented at
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`trial that Ammco knewthatthe overwhelming majority of brakes used with its product would be
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`asbestos-containing brakes. There was testimony presented at trial that asbe-stos-containing
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`brakes were used exclusively in the 1960's and into the 1970's with a few 'exceptions. Moreover,
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`there was testimony presented at trial that Ammco knew that its grinder would primarily be used
`.
`.
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`to grind brakes which contained asbestos and that dust containing asbesto~ would be released
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`when its product was used to grind these brakes. As a result, it specifically'designed its product
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`to include a dust collection system to collect the asbestos-containing dust>before it was released
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`into the air, which it called an "asbestos dust collection system". There was also evidence that
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`Ammco incorporated its knowledge that its machine would be used with asbestos brakes by
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`incorporating this into its machine. Its corporate representative, Mr. Mountz, testified that
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`Ammco grinders designed in the 1950's and 1960's came with an "optional part ... for a special
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`grinder surface to be used with non-asbestos linings." Thus, it manufactured its grinding
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`machines with the clear understanding that they were going to be used to grind asbestos brake
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`linings. Finally, there was evidence that it knew of the hazards of asbestos at the time of
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`plaintiffs exposure. The foregoing is sufficient to establish its role and interest in the type of
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`brakes used with its product.
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`Ammco next argues that it is entitled to a directed verdict or judgment notwithstanding
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`the verdict because plaintiffs expert opinion was insufficient as a matter of law to establish
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`general or specific causation as required under the holding in Parker v. Mobil Oil Corp., 7
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`.
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`N.Y.3d 434 (2006). In Parker, the court held that it "is well established that an opinion on
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`causation should set forth a plaintiffs exposure to a toxin, that the toxin is capable of causing the
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`particular illness (general causation) and that plaintiff was exposed to sufficient levels of the
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`toxin to cause the illness (specific causation.)." ld. at 448. However, "it is not always necessary
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`for a plaintiff to quantifY exposure levels precisely or use the dose-response relationship,
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`provided that whatever methods an expert uses to establish causation are generally accepted in
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`the scientific community." !d. In that case, the court rejected the plaintiffs experts' testimony
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`that exposure to gasoline caused plaintiffs AML as "[p]laintiff's experts were unable to identifY
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`a single epidemiologic study finding an increased risk of AML as a result of exposure to
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`gasoline." !d. at 450.
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`/
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`In Cornell v. 360 W. 51st Realty LLC, 22 N.Y. 762 (2014), the Court 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. 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 plaintiffs 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 tharare known to cause the
`kind of harm thatthe plaintiff claims to have suffered.
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`!d. at 784.
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`In Lustenring v. AC&S, Inc., 13 A.D.3d 69 (P' Dept 2004), lv. denied, 4 N.Y.3d 708
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`(2005), the First Department addressed what showing must be made to establish specific
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`causation in an asbestos case. According to the court, the evidence showed that plaintiffs worked
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`all day for long p~riods in clouds of dust which was raised by the manipulation and crushing of
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`defendant's packing and gaskets, which were made with asbestos. The cburt found that "[v]alid
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`expert testimony indicated that such dust, raised from asbestos product; 'and notjust from
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`industrial air in general, necessarily cont~ins enough asbestos to cause mesothelioma." !d. at 70.
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`In the present case, the court finds that there was sufficient evidence for the jury to find
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`general causation. All that a plaintiff is required to show with respect to geheral causation in an
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`asbestos case is that the toxin, asbestos, is capable of causing mesothelioma if the plaintiff is
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`exposed to a sufficient dose. There is no question that this has been established. The argument
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`by defendant that there must be epidemiological studies showing a relationship between exposure
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`to asbestos dust from grinding brakes containing asbestos with mesothelioma is without basis as
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`no court has ever imposed this requirement nor could there be epidemiological studies for every
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`single product ever manufactured that contains asbestos or every product that is used with
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`asbestos-containing products;
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`The court also finds that there was sufficient evidence for the jury to find specific
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`causation as the plaintiff presented expert testimony that plaintiffs mesothelioma was caused by
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`exposure to asbestos which occurred when using defendant's product focthe purpose for which it
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`was intended and the methods that plaintiffs experts used to reach these conclusions were based
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`on principles which are generally accepted in the scientific community. Initially, the trial and
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`;
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`appellate courts in New York which have addressed the issue, both before and after Parker have
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`been decided, have consistently held that the presence of visible dust from an asbestos containing
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`product establishes a sufficient foundation for an expert to conclude that the use of such product
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`was a substantial factor in causing mesothelioma and Ammco has not cited to any New York
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`cases where a court has not upheld a finding of specific causation where visible dust was present.
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`See, e.g., Lustenring, !d.; Penn v. Amchem, 85 A.D.3d 475,476 (1 51 Dept 2010){'0n the issue of
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`causation, sufficient evidence was provided by [plaintiffs] testimony that visible dust emanated
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`while working with the dental liners and by his expert's testimony that su~h dust must have
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`contained enough asbestos to cause liis mesothelioma"); Matter of New York Asbestos Litig, 28
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`A.D.3d 255 (1st Dept 2006)(evidence fairly interpreted, permitted liability verdicts reached by the
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`jury where the "evidence demonstrated that both plaintiffs were regularly exposed to dust from
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`working with defendant's gaskets and packing, which were made of asbestos. The experts
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`indicated that such dust from asbestos containing products contained enough asbestos to cause
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`mesothelioma"); Berger v. Amchem Products, .13 Misc. 3d 335, 346 (Sup;Ct NY Co 2006)( "It
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`has long been establish~d that mesothelioma caused by asbestos exposure_is frequently not dose
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`related and relatively small numbers of fiber that are inhaled may remain inthe lungs for long
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`periods and cause mesothelioma"); C.f Arthur Juni v. A. 0. Smith Water Product, Index No.
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`190315/2012 (Sup Ct NY Co 20 15)( evidence offered insufficient to prove that dust to which
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`plaintiff was exposed contained any asbestos).
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`In the present case, plaintiff testified during the trial that he was exposed to visible dust
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`when he was grinding asbestos-containing brakes with defendant's grinder over a number of
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`years. Specifically, he testified "there's a fair amount of dust from the process of grinding the
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`linings." Trial transcript p. 87. Moreover, the court finds thatthe expert testimony ofDL Moline
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`and Dr. Rom, who both relied on plaintiffs testimony that he was exposed to visible dust when
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`he was grinding asbestos-c9ntaining brakes with defendant's grinder, was sufficient to present
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`the issue of specific causation to the jury to be resolved. Dr. Rom specifically testified that to a
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`reasonable degree of medical certainty, plaintiffs exposure to asbesto~ from his work on the
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`Ammco brake grinder was a substantial contributing factor to his mesothelioma. He testified that
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`if plaintiff shaved brake linings on an Ammco machine anywhere from three times a day to three
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`times a week from approximately 1973 until 1979, and the process createcLvisible asbestos dust
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`that plaintiff breathed, that "exposure for that frequency, doing that type of brake repair job,
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`proves enough asbestos fibers during the 70's to cause a malignant mesothelioma. " Trial
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`transcript p. 242-243. He also testified that the d_ose calculation provided'by plaintiffs expert of
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`.024 fibers/cc for plaintiffs lifetime was a sufficient exposure to cause mesothelioma based on
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`recent publications which show mesothelioma from this type of exposure. Trial transcript p.
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`243-244. Dr. Moline also concluded that plaintiffs exposure to asbestosfrom his work on
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`Ammco grinders was a substantial contributing factor to his mesothelioriui. _ She specifically
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`testified that if a worker, such as plaintiff is breathing visible dust, the dust contains a very high
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`concentration, not a concentration that is anywhere near what may be in background air, which is
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`very low and microscopic. Trial transcript p. 322. She. also testified that if a worker is working
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`with an asbestos-containing material and they see visible dust, "we know that its an order much
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`higher than .24 fibers/cc-yrs." Trial transcript p. 366.
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`The court finds that the methods used by plaintiffs expert at trial to establish that
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`plaintiff was exposed to sufficient levels of asbestos from using Ammco's products for the
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`product to have been a substantial contributing factor in causing plaintiffs mesothelioma are
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`generally accepted in the scientific community. Based on the testimony presented at trial, the
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`expert sufficiently established that it is generally accepted in the scientific community that there
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`is no 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 the grinders based on the release of
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`visible dust when the brakes were being grinded. As the Court of Appeals made clear in Parker.
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`"it is not always necessary for a plaintiff to quantify exposure levels preCisely or use the dose(cid:173)
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`response relationship, provided that whatever methods an expert uses to establish causation are
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`generally accepted in the scientific community." !d. Based on the foregoing, the court finds that
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`there was sufficient evidence to support a finding by the jury of specific causation in this case.
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`Ammco's argument that plaintiffs counsel's demand for $50 million in his opening
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`statement required a mistrial is without merit. The court has already gra11ted defendant's request
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`for a curative instruction to the jury based on plaintiffs actions and instructed the jury that it
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`should disregard any statement made by plaintiffs counsel regarding a specific amount he is
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`seeking for the plaintiff and that the statement should be stricken from the record. As the court
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`stated during the trial, defendant is not entitled to a mistrial based on this incident and defendant
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`has not cited any cases holding to the contrary.
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`Ammco next argues that the court should set aside the jury's verdict that it acted with
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`reckless disregard for plaintiff's safety as the eyidence at trial did not warrant submission of the
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`reckless disregard issue to the jury and the jury's finding of recklessness was against the weight
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`of the evidence. Maltese v. Westinghouse Electric Corp., 89 N.Y.2d 955 (1997). The court
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`finds that the jury's finding that Ammco acted with reckless disregard is supported by the record
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`and should not be set aside. There was a valid line of reasoning and permissible inferences
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`which could have led a rational jury to conclude based on the evidence presented at trial that
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`Ammco acted with reckless disregard. Initially, there was evidence presented at trial from which
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`a jury could have rationally concluded that Ammco had actual knowledg~ that exposure to high
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`concentrations of asbestos over time could cause injury. Plaintiff presented sufficient evidence
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`with respect to the dangers of asbestos exposure from publically available information as well as
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`information available in various trade journals and in other literature and in government
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`regulations and statutes, including worker's compensation laws, so that the jury could find that
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`Ammco knew or should have known of the dangers of exposure to asbestos. Moreover, by
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`1973, when plaintiff first alleged that he began using an Ammco grinder, Ammco was already
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`conducting independent tests on their grinders to assess their safety with respect to the release of,
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`asbestos in connection with their use.
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`There was also evidence presented at trial from which a jury could have rationally
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`concluded that during the period of plaintiff's claimed exposure to asbestos. in connection with
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`his grinding of asbestos-containing brakes on Ammco's grinder, Ammco "has intentionally done
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`an act of an unreasonable character in disregard of a known and obvious risk that was so great as
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`to make it highly probable that harm would follow and has done so withconscious indifference-
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`to the outcome." !d. There was evidence presented at trial that Ammco created a new and
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`updated dust collection system for its grinders in 1975 which is the time period when plaintiff
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`claimed to have been using an earlier version of Ammco' s grinder; that Ammco was aware at
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`that time that there were grinders still in use that did not have the updated dust collection system
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`created by Ammco; that the updated dust collection system contained warnings that were not
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`provided in connection with the earlier version o~ the grinder; that Ammco made no effort to
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`provide end users of the earlier grinders such as plaintiff with the warnings that were provided
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`with the new version of the grinder; and that Ammco knew that the older version of the grinder
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`exposed users to a risk of exposure to asbestos-containing dust and that Ammco made no effort
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`to provide these users any warnings in violation of its continuing duty to warn post sale. In 1975,
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`Ammco obtained a patent for its new dust collection system. In the application for the patent,
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`Ammco stated that the dust created by the earlier model of the grinders, which is the grinder that
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`plaintiff would have been using, "is a potential hazard to the machinery operators and other
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`persons in the same general location." Trial transcript p. 563-564. According to the patent
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`application:
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`a serious problem with this prior type arc type of dust collector is that when the bag
`becomes filled with dust and /or the pours thereof become clogged with the dust particles,
`there is insufficient suction to remove the dust being produced and the motor of the dust
`collector becomes overloaded. Moreover, the dust particles are blown into the
`atmosphere. In fact, because of the danger inherent to the person using this type of
`equipment, there are many localities which have banned the use of brake shoe grinding
`machinery which incorporates the prior arc type of dust collector. ... Another problem
`associated with the prior arc type of dust collector is that of disposing of the collected
`dust particles without permitting at least some of the dust to escape into the atmosphere.
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`Trial transcript p. 564-566. At this time when Ammco acknowledged in its own patent
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`application that it was aware of the hazards to persons who were using its prior dust collector, it
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`made absolutely no effort to attempt to warn the end users of the dangers with respect to the
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`earlier grinders, although there was evidence presented at trial that it could have ascertained
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`where these grinders were located. Moreover, although it issued more specific warnings with its
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`new grinders, it failed to issue any warnings to users of the older models of the grinders which
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`were admittedly less safe than the newer grinders. Based on this evidence, there was a rational
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`basis for the jury to conclude that Ammco "has intentionally done an act of an unreasonable
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`character in disregard of a known and obvious risk that was so great as to make it highly probable
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`that harm would follow and has done so with conscious indifference to the outcome." !d.
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`Ammco 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. It argues that the jury charge contained in pattern jury instruction 2:275.2, which is the
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`charge that this court used, fails to incorporate the standard required by the Court of Appeals
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`decision in Maltese. This argument is without basis as the court finds that the language it used to
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`instruct the jury on the recklessness standard was proper. As Justice Madden recently held in
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`Assenzio v. A. 0 Water Smith Prod., "in Maltese, the court did not hold that any specific language
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`was required, and the PJI charge, as given, adequately expressed the standard." Moreover, the
`
`First Department in In reNew York City Asbestos Litig. (Konstantin and Dummitt), 121 A.D.Jd
`
`230 (I '1 Dept 2014) ("Dummitt") recently upheld a finding of recklessness as to other defendants
`
`in an asbestos product liability litigation where the same exact language was used in charging the
`
`jury on recklessness. This court has also held, in the Hillyer case, that the charge contained in the
`
`PJI is not improper. Moreover, defendant has not cited any cases where a court has found that
`
`the language used in the pattern jury instruction to define recklessness has ever been overturned
`
`14
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`14 of 17
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`

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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
`
`that the Maltese decision is from 1997, approximately eighteen years ago.
`
`Ammco' s argument that it is entitled to a new trial because the jury's allocation of fault 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 86% percent of the fault to Ammco.
`
`The argument by Ammco that the jury's findings regarding product identification and
`
`negligence should be set aside as no rational jury could have found that the brake grinder plaintiff
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`used was an Ammco brake grinder or that Ammco failed to provide reasonable care in marketing
`
`its grinder is without merit. There was sufficient evidence before the jury to support its finding
`
`that plaintiff worked with Ammco grinders and sufficient evidence before the jury for it to
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`determine that Ammco failed to exercise reasonable care.
`
`The next issue the court must address is whether the jury's award. to plaintiff of $10
`
`million for past pain and suffering and $15 million for one year of future pain and suffering was
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`excessive and if so, whether a new trial on the issue of damages should be ordered. The standard
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`to be applied is whether the award "deviates materially from what would be reasonable
`
`compensation." CPLR' §550 1 (c). In order to determine whether the award was excessive, the
`
`court must compare the instant case with analogous cases with awards that have been previously
`
`upheld. See Donlon v. City ofNew York, 284 A.D.2d 13, 18 (1 51 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
`
`in a mesothelioma case is Dummitt. In that case, the First Department upheld an award of past
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`15
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`15 of 17
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`

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`pain and suffering of $4.5 million and $3.5 million for future pain and suffering. It also upheld
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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 decjsions, the First Department upheld an award of $1.5 million for past
`
`pain and suffering and $2 million for future pain and suffering (Penn v. Achem Products, 85
`
`A.D.3d 475) (1 51 Dept 2011) and $3 million and $4.5 million respectively (Matter of New York
`
`Asbestos Litig, Marshal/, 28 A.D.3d 255) (1st Dept 2006).
`
`Based on all the circumstances of plaintiffs injuries, the award of$10 million for past
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`pain and suffering and $15. million for one year of future pain and suffering deviates materially
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`from what would be reasonable compensation. Pursuant to CPLR 550l(c), the award for past
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`and future pain and suffering is vacated and a new trial ordered on the issue of d

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