FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`FILED: NEW YORK COUNTY CLERK 01312018 01:36 AM
`NYSC 3F DOC. NO. 952
`NYSCEF DOC. NO. 952
`
`IND
`EX NO.
`190219/2016
`INDEX NO. 190219/2016
`
` VYSC
`
` flIV flD
` 3F:
`
`01/13/2018
`RECEIVED NYSCEF: 01/13/2018
`
`Exhibit P
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`.
`
`AJO
`
`SUPREME
`COUNTY
`
`COURT OF THE STATB OF NEW YORK
`OF NEW YORK - PART 57
`
`PRESENT:
`
`Hon. Marcy S. Friedman,
`
`JSC
`
`II
`
`IN RE: NEW YORK ASBESTOS
`
`IJTIGATION,
`
`JOHN MATTESON,
`JOHN LUSTENRING,
`
`Index No. 105240/01
`Index No. 105155/01
`
`X
`
`x
`
`DECISION/ORDER
`
`In these asbestos cases, defendant The Okonite Company ("Okonite")
`
`moves for
`
`judgment
`
`==".=-.""
`.=-."
`notwithstanding
`
`—
`
`the venlictin
`
`the Matteson
`
`case, and defendant
`
`Jolm Crane,
`
`Inc.
`
`(%hn
`
`Crane") moves
`
`for the same relief
`
`in the Matteson and Lustenring
`
`cases. Defendants
`
`argue that
`
`the evidence is insufficient
`
`to support
`
`the verdicts in plaintiffs'
`
`favor,
`
`that
`
`the verdicts
`
`should be set aside based on errors in evidaritiary
`
`adings and juror misconduct;
`
`that
`
`the verdicts
`
`inconsistent;
`
`that
`
`the damage awards are excessive.
`
`97
`
`togo
`
`as to
`
`Matt
`
`of pl
`
`cont
`
`the c
`
`the r
`
`was
`
`Defe
`
`are internally
`
`and,
`
`in the alternative,
`
`Defendant Okonite
`
`contends that
`
`the evidence was insufficient
`
`to support
`
`the jury's
`
`findings
`
`that plaintiff Matteson was exposed to its product, and that
`
`its product
`
`contained
`
`asbestos. R is well settled that a court may not conclude as a matter of law that
`
`the verdict
`
`is not
`
`supported
`
`by sufacient
`
`evidence unless "there is simply no valid line of reasoning
`
`and
`
`permissible
`
`inferences which could possibly
`
`lead rational
`
`[persons]
`
`to the conclusion
`
`reached by
`
`the jury on the basis of
`
`the evidence presented at trial."
`
`chen v
`
`al
`
`Cania.
`
`Inc.. 45 NY2d
`
`t
`
`493, 499 [1978].)
`
`In contrast, a determination
`
`that a verdict
`
`is against
`
`the weight of
`
`the evidence
`
`requires a finding
`
`that "the jury could not have reached its verdict on any fair
`
`interpmtation
`
`of
`
`the
`
`
`
`evidence."evidence."
`
`I1 ddo vv
`
`oBcaid
`
`f
`
`
`
`1978j, JaglgtlNII48uc.,uc., 6565 AD2dAD2d 547(2d547 pd DeptDept 1978],
`~aff 1Lo~on 48 NY2dNY2d
`
`
`643643
`
`reasi
`
`then
`
`noe
`
`or th
`
`side:
`
`jury
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`A3V
`
`p979]-)
`
`Under either standard, Mr. hdatteson's
`
`testimony
`
`as to his use of Okonite's
`
`products,
`
`together with circumstantial
`
`evidence,
`
`including
`
`testimony
`
`of plaintiff
`
`s expert, Richard Horan,
`
`as to the composition
`
`of
`
`the products, was sufficient
`
`to raise a jury issue as to whether Mr.
`
`Afatteson was exposed to ashestos-containing
`
`cable manufactured
`
`by Okonite.
`
`Both Okonite
`
`and John Crane further argue that
`
`the court erred in admitting
`
`the testimony
`
`plaintiffs'
`plaintiffs'
`
`of
`
`expert, Dr. Jacqueline Moline,
`
`that visible
`
`dust
`
`from asbestos-containing
`
`products
`
`contains
`
`fibers in a sufficient
`
`quantity
`
`to be hazardous. This argument
`
`in effect seeks to reargue
`
`the court's
`
`trial
`
`ruling on
`
`defendants'
`
`request
`
`for a Frye hearing
`
`The court adheres to that ruling,
`
`the reasons for which were fully
`
`set forth on the recent
`
`The court also finds that a foundation
`
`was laid for the testimony.
`
`(See Carnolo v John
`
`irate Inc., 226 F3d 46 [2d Cir 2000].)
`
`.
`
`C
`
`also challenge
`
`several other significant
`
`rulings.
`
`Defendants
`
`evidentiary
`
`and trial
`
`Defendants
`
`do not
`
`raise new legal arguments,
`
`and the comt adheres to its trial
`
`rulings,
`
`the
`
`reasons for which were generally
`
`set forth at length on the trial
`
`record.
`
`Defendants.'
`
`further
`
`claim ofjuror miscondu.ct
`
`is without
`
`support
`
`in the record. Although
`
`there were personal disagreements
`
`among the jurors, which
`
`are documented
`
`in the record,
`
`there is
`
`no evidence that
`
`the jurors took sides on any of
`
`the issues in the.cases prior
`
`to the deliberations,
`
`.
`
`or that any.personality
`
`conflicts
`
`affected the jurors'
`
`ability
`
`to deliberate fully and fairly
`
`to both
`
`sides.
`
`Okanite
`
`does persuasively
`
`argue, however,
`
`that
`
`the evidence is insufficient
`
`to support
`
`the
`
`jury's
`
`finding
`
`that Okonite
`
`acted recklessly.
`
`Under settled authority,
`
`the level ofconduct
`
`necessary to establish recklessness must satisfy "a gross negligence
`
`standard,
`
`requiring
`
`that
`
`the
`
`Page
`
`-2-
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`*K ~PA~
`J'~R.
`~
`~A
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`t.
`
`1
`
`i
`
`i
`
`A38
`
`actor has intentionally
`
`done an act of an unreasonable
`
`character
`
`in disregard ofa known
`
`or
`
`obvious
`
`risk that was so great as to make it highlyprobable
`
`that harm would follow and has done
`
`so with conscious
`
`indifference
`
`to the
`
`outcome."
`
`''
`er of New York City Asbestos Litigation
`
`evWes'
`'
`f Maltese v Westinghouse
`
`Blee. Corp.I... 89 NY2d
`
`955, 956 [I997][intemal
`
`citations
`
`and quotation
`
`marks omitted].)
`
`While there was evidence
`
`from which the jury could rationally
`
`have concluded
`
`that
`
`Okonite
`
`had or should have had knowledge
`
`either dangers to health from exposure to dust
`
`from
`
`asbestos-containing
`
`products, Okonite's
`
`conduct was not reckless because there was no evidence
`
`that Okonite
`
`had knowledge
`
`that "workers
`
`such [as Mr. Matteson] were at risk at any time it
`
`could have warned thern."
`
`04
`
`at 957.) Moreover,
`
`contrary to plaintif
`
`fs contention, Okonite's
`
`membership
`
`in the Association
`
`of American Railroads
`
`is not a sufficient
`
`basis fbr a finding
`
`of
`
`recklessness,
`
`'
`because it bears on Okonite's~ general knowledge
`
`o'
`ofthe
`
`dangers of asbestos, and not
`
`on its knowledge
`
`of dangers to specific workers
`
`in plaintiffs
`
`position.
`
`The jury's
`
`finding
`
`as to
`
`Okonite's
`
`recklessness will
`
`accordingly
`
`be set aside.
`
`Okonite
`
`and John Crane next argue that anew trial should be ordered because the
`
`answers to intermgatories
`
`based on which each case was decided were inconsistent with each
`
`other.
`
`In each case, the jury answered an interrogatory
`
`finding that
`
`the plaintiff
`
`was exposed to
`
`.esbeslos-containing
`
`products
`
`of companies other
`
`than moving defendants.
`
`Specifically,
`
`in
`
`Matteson,
`
`the jury answered interrogatory
`
`7 finding
`
`that Matteson was exposed to the asbestos-
`
`containing
`
`products of 23 other companies, while in Lustenring,
`
`the jury answered interrogatory
`
`6 finding
`
`that he was exposed to the asbestos-containing
`
`products of 12 other companies.
`
`In each
`
`case the jury then found these other companies were not negligent
`
`in manufacturing
`
`or selling
`
`'PagePage -3--3-
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`439439
`
`asbestosmontaining
`
`products without
`
`adequate warning (interrogatory
`
`8 in Matteson,
`
`and
`
`interrogatory
`
`7 in Lustenting).
`
`The jmy
`
`thus did not apportion
`
`fault
`
`to any of
`
`these other
`
`companies,
`
`and apportioned
`
`fault only to defendants which had been found negligent
`
`- John
`
`Cranc (45%) and Okonite
`
`(55%),
`
`the sole.defendants
`
`found liable in Matteson (see interrogatory
`
`10); and John Crane (100%),
`
`the sole defendant
`
`found liable in Lustenring
`
`(see interrogatory
`
`9).
`
`Defendants
`
`argue that
`
`the finding
`
`that plaintiffs were exposed to other companies'
`
`products,
`
`is inconsistent
`
`with the finding
`
`that
`
`these other companies were not negligent.
`
`Perhaps
`
`recognizing
`
`that
`
`the findings
`
`are not
`
`inconsistent
`
`on their
`
`face (exposure obviously
`
`does not
`
`mandate a finding
`
`of negligence),
`
`defendants also argue thatthe
`
`jury's
`
`finding that
`
`the other
`
`i
`
`companies were not negligent was against
`
`the weight of
`
`the evidence.
`
`In support of this claim,
`
`they cite the state of
`
`.''"
`the art evidence
`
`"-.admitted
`
`at the trial, which showed that some,.if not all, of
`
`these other companies
`
`had or should have had knowledge
`
`of
`
`the dangers of asbestos.
`
`As plaintiffs
`
`correctly
`
`point out, however,
`
`in order
`
`to establish the other
`
`companies'
`
`negligence,
`
`defendants
`
`had the burden of proving not only that
`
`the other companies knew or
`
`should have known
`
`of
`
`"
`the dangers fmm their ebe..ce-cent±.ing
`
`'""
`
`products, but also they failed to
`''
`in——
`
`.5
`warn of such dangers. .
`
`(Sag
`
`Camolo
`
`v A C & S. Inc.. 1999 WL 147740 [SD NY 1999], as
`.I.da
`
`lart,
`
`vacated 4 rernanded
`
`in DE19n athct grounds 226 F3d 46 [2d Cir 2000]; George v Colotex
`
`. 914 P2d 26, 28 [2d Cir 1990].)
`
`the state of
`
`the art evidence is relevant
`
`to defendants'
`
`knowledge
`
`of the. dangers,
`
`based on the evidence
`
`at trial,
`
`the jury could rationally
`
`have found that defendants did not meet
`
`their burden of establishing
`
`that
`
`the other cotnpanies
`
`failed to warn. Defendants
`
`rely on
`
`Plaintiffa'
`
`testimony
`
`that
`
`they never saw warnings on any cebeeto:
`
`-cc.-.~'"'""
`con9).:ing
`
`products
`
`to which
`
`
`
`Page 4-Page-4-
`
`I
`
`.
`
`'4
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`1
`
`!
`
`'I
`
`fa
`
`I
`
`A40
`
`they were exposed. However,
`
`such testimony by plaintiffs
`
`"did not compel1he
`
`jury to conclude
`
`that
`
`there were,
`
`wamings,"
`suchwarrungs,"
`in fact, no suc.h
`
`ay Owens-Coming.Fiberglass
`.Fiber
`
`Corp.,. 221
`
`AD2d
`
`830, 832 [3d Dept 1995].) Moreover,
`
`defendants do not cite, and the court does not
`
`recall,
`
`any specific
`
`references
`
`in the trial
`
`record to any other company's
`
`lack of warnings.
`
`Under
`
`these
`
`circumstances,
`
`the court cannot
`
`find thatdefendants
`
`sustained their burden of proving
`
`that
`
`the
`
`other companies were negligent
`
`in not giving warnings.
`
`(SAid.)
`
`Finally,
`
`defendants
`
`argue that
`
`the damages were excessive. Under New York
`
`law, an
`
`award is excessive "if
`
`it deviates materially
`
`from what would be reasonable compensation."
`
`(CPLR 5501[c].)
`the "deviates materially"
`
`considered
`
`In Weipl
`
`v Ouincy Specialties Co.
`
`(190 Misc 2d 1 [2001]),
`
`this court
`
`standard at length. As held in Weial.
`
`and best articulated
`
`in
`
`the court must balance respect
`
`for aimy's
`
`award,
`
`federal asbestos cases applying New York law,
`
`recognizing
`
`that a court has no greater expertise than a jury in assessing the value of pain and
`
`suffering,
`
`against
`
`the court's
`
`obligation
`
`and ability,
`
`given its access to information
`
`about other
`
`jury awards,
`
`to ensure that similarly
`
`situated litigants
`
`receive similar
`
`awards.
`
`(190 Misc 2d at 3-
`
`4; Consorti
`
`'
`
`v Amtstrong World
`
`Indus.,
`
`Inc., 72 F3d 1003, 1009 {2d Cir 1995][Consorti
`
`11],
`
`.
`vacated on o_tiler arounds.consorti
`
`v Owens-CorningEiberglas
`
`Corp.,518 US 1031 [1996].)
`
`Given this concern for predictability,
`
`it is not surprising that New York
`
`courts applying
`
`the deviates materially
`
`standard have "looked to awards approved in similar
`
`cases."
`
`(E_es
`
`Gasperini
`
`v Center
`
`for Humanities,
`
`Inc., 518 US. 415, 425 [1996]; Consorti 4 72 F3d at 1012;
`
`Weiul.
`
`190 Misc2d at 4-5 [and authorities
`
`cited therein].)
`
`Indeed,
`
`"case comparison
`
`analysis"
`
`is
`
`mandated by CPLR 5501(c).
`
`(Donion
`
`v City of New
`
`or
`
`284 AD2d
`
`13 [1" Dept 2001].)
`
`However,
`
`the courts have repeatedly
`
`recognized the difficulties
`
`in comparing
`
`injuries
`
`in different
`
`Page-$-
`
`I
`
`Wa
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`A41
`
`cases, given the uniqueness
`
`of each experience
`
`ofsuffering
`
`.
`and the relative paucity of
`
`information
`
`in remittitur
`
`detc:=inations
`
`about
`
`I
`I
`the injuries involved.
`
`r
`I (Sgt Matter of.Ioint Eastern
`
`& Southem
`
`'
`ist.. Asbestos Litigation
`
`~
`
`[Consorti.
`
`
`
`y Annstrong~
`
`World Indus..
`.
`
`~
`Inc,. 9 F Supp 2d
`
`307, 311 [applying New York
`
`law]; So v
`
`in Tat Realty.
`
`Inc.. 259 AD2d 373 [1" Dept 1999];
`
`Sanko v Fonda. 53 AD2d
`
`I
`t
`638 [2d Dept 1976].)
`
`Thus,
`
`~
`~
`the courts have emphasized that each
`
`case must be evaluated on its own facts, and that "c=edsh!e
`
`deference"
`
`I
`should be accorded to
`
`~
`
`the jury's
`
`awarde (Weial.
`
`190 Misc 2d at 4-5 {and New York cases cited~therein]; Consorti.
`
`9 F
`
`Supp 2d at 311, 314; Catuolo.
`
`1999 WL 147740 at 17 [applying New York law].) As recently
`If
`
`explained,
`
`"[c]ase comparison
`
`.I
`
`'
`'
`t
`~
`f
`cannot be expected to depend upon perfect
`
`factual
`
`identity.I
`
`More
`
`
`.cdten,.often, analogous
`often,
`
`cases will be useful as benchmarks."
`. ~
`4
`fl
`
`.''
`(Donlon. 284 AD2d at 16.) Courts
`
`'
`
`li
`
`I
`
`.
`I
`
`undertaking
`
`.
`case comparison
`
`'
`.
`.
`.
`I
`analysis have also noted that "a comt's understanding
`
`of what
`
`is
`
`reasonable
`
`compensation mustnot
`
`runnin
`
`fixed in time, but rather must retain the capacity for
`
`change based on its own experience,
`
`the experience of others, and the deci±±±:
`
`made in
`
`cases."
`
`(Consorti.
`
`9 F Supp 2d at314.
`
`'
`San Matter ofNew York City
`
`Asbestos
`
`'
`Litigation
`
`lo
`
`v Westinghouse
`
`Elec. Corp.1. Sup Ct, NY County, Freedman, J., Feb. 20,
`.
`
`1996, Transcript
`
`of Proceedings,
`
`Ex. D to P.'s Aff.
`
`In Opp., quoted in Consorti.9
`
`F Supp 2d at
`
`315-316.)
`
`In comparing
`
`verdicts
`
`in asbestos cases, the courts have further noted that
`
`the various
`
`methods employed
`
`for assessing a reasonable damage amount
`
`include the application
`
`of (1) a
`
`Percentage method, entailing
`
`a percentage
`
`reduction based on the percentage used to reduce
`
`verdicts
`
`in similar cases;
`
`(2) a monthly multiplier,
`
`anived at by calculating
`
`a figute which
`
`represents an amount
`
`that
`
`is reasonable
`
`for a mesothelioma
`
`victim to be awarded per month of
`
`Page -6-
`
`.
`
`f1 III
`
`I
`
`~a
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`A42
`
`pain and suffering,
`
`and then multiplying
`
`this figate by thenumber
`
`I
`of months of past and future
`
`pain and sufTering; and (3) a totality of circumstances
`17; Consortis 9 F Supp 2d at 317-318.)¹
`
`approach.
`
`(Caruolo,
`
`1999 WL 147740 at
`
`The percentage reduction
`
`and monthly multiplier
`
`approaches have been criticized
`
`as
`
`ignoring
`
`the "human
`
`element"
`
`or factual specifies of each case (id. at318),
`
`and have been
`
`rejected by federal courts applying New York
`
`law in favor of the "totality
`
`of circtunstances'
`
`approach.
`
`(Id.; Caruolos 1999 WL 147740 at 17.) Under
`
`this approach,
`
`the duration
`
`of
`
`the
`
`illness as well as degree of sttffering
`
`arc factors in determining whether
`
`the jury award is
`
`excessive.
`
`(I31.)
`
`In theinstant
`
`cases,each plaintiff
`
`was diagnosed with mesothelioma.
`
`The onset of
`
`plaintiff Matteson's
`
`illness was January 2001, approximately
`
`17 mouths before the date of
`
`The onset of Mr. Lustenring's
`
`illness was April
`
`2000, and he died in August 2001,
`
`approximately
`
`17 months
`
`later. The jury awarded Mr. Matteson 5 million
`
`dollars for past pain
`
`and suffering,
`
`and 8 million
`
`dollars for
`
`future pain and suffering for a period of 24 months.
`
`In
`
`the Matteson
`
`case, a loss of consortium claim was not put
`
`to the jury.
`
`The jury awanted the
`
`estate of Mr. Lustening
`
`5 million
`
`dollars
`
`for pain and suffering. Damages
`
`forloss
`
`of consortium
`
`'The percentage reduction method appears to derive from Didner v Xeene Corp. (NYLJ, Jan. 4,
`188 AD2d 15 [1"
`1991, at 22, col 2 [Sup Ct, NY County 1990]), affd [without discussion of remittitor]
`Dept 1993), m_ocliled 82 NY2d 342),
`in which Justice Helen Freedman, New York's leading jurist
`handling asbestos cases, remitted pain and suffering asbestos awards in 1990 and 1991 litigation.
`(.S_ee
`'
`in v Georgia Pacific Corp. (Sup Ct, NY
`Iri a later decision,
`Consorti, 9 F Supp 2d at 312-313.)
`.(SupCIbbIY
`County, Feb. 3, 1995, Index No. 102757/94), Justice Freedman stated:"While Didner may no longer be
`prevail"
`I believe that reasonablenessshould
`it does not appear that
`hi Manning. moreover,
`controlling,
`Justice Freedman herself applied a percentage reduction folinula. According to case lawreports
`of
`rernittitor decisions by Justice Freedman,
`is no longer
`in 1996, she reiterated that Didner
`and noted "while in the past I have remitted casca to lower amounts,
`it seems thejuries
`are
`continuing to come in with higher verdicts."
`
`vcrdicts,mverdicts."
`(Caruolo. 1999 WL 147740 at 19; Consorti,9 F Supp 2d at
`315.)
`
`PagePage -7--7-
`
`111
`
`I
`i1
`
`II
`
`I
`
`i1
`
`11
`\I
`
`'f.f.
`
`IC
`
`II
`II
`3L
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`A.43
`
`in the amount of 1.5 million
`
`dollars were awarded to his wife.
`
`In aid of
`
`this court's
`
`case comparison
`
`analysis, both sides submitted
`
`summaries
`
`of
`
`asbestos verdicts
`
`for pain and suffering.
`
`These summaries did not distinguish
`
`between awards
`
`for past and future pain and suffering.
`
`Defendants
`
`submitted 25 remitted
`
`verdicts.
`
`The verdicts
`
`for pain and suffering
`
`of approximately
`
`the same duration as plaintiffs'
`
`(18 months and above),'
`
`ranged from 1.5 to 5 million
`
`dollars, broken down by amount per month from a low of
`
`approximately
`
`$83,000
`
`to a high of approximately
`
`$166,000.
`
`Plaintiffs
`
`submitted
`
`30 verdicts.
`
`summary
`
`does not appear
`
`to include remitted awards, althougli
`
`it does contain several
`
`verdicts
`
`as to which remittitor motions were denied. Plaintiffs'
`
`unremitted
`
`verdicts
`
`for pain and
`
`suffering
`
`of 18 months and above ranged fmm 5 to 14.6 million
`
`dollars, broken down by amount
`
`per month
`
`highest awards,
`
`from a low of approximately
`listed on plaintiffs'
`
`$212,000 to a high of approximately
`
`$521,000.
`
`The
`
`summary for which remittitur was denied, were in the
`
`!
`
`!
`
`amounts of 6 and 6.5 million
`
`dollars, which broke down to approximately
`
`$187,000 per month
`
`32 months,
`
`and S66,000 per month for 99 months.
`
`On consideration
`
`of
`
`the sample ofmesothelioma
`
`verdicts which were summarized
`
`by the
`
`parties and reported in the case law, as well as consideration
`
`of the totality
`
`of circumstances
`
`of
`
`each pláintiff
`
`s case,
`
`the comt concludes that
`
`the verdicts must be remitted
`
`to the extent set forth
`
`.
`
`below.
`
`Although Mr. Matteson was 74 years old at the onset of his illness, he was in excellent
`
`health prior
`
`to his illness. A robust, gregarious man, he was still actively
`
`involved
`
`in athletic,
`
`social and family
`
`activities.
`
`Shortly after
`
`the onset of his illness, he underwent
`
`9 months of
`
`2No verdicts for a 15 to 17 month period were submitted.
`
`Page-8-
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`[ I
`
`..---....-...-.--
`
`-
`
`.
`A44
`
`_
`
`.
`
`......_
`
`.-
`
`------
`
`-
`
`-
`
`,
`
`Ir
`
`, 9 4u J 0 33
`
`.1'i
`
`. chemotherapy,
`
`from which
`
`he suffered adverse effects, and experienced a progressive
`
`deterioration
`
`of his health, becoming
`
`increasingly weak and depressed, The trial
`
`record showed
`
`that he experienced
`
`a,radical
`
`diminution
`
`in his abilityto
`
`participate
`
`in the activities
`
`that he had
`
`enjoyed prior
`
`to his illness.
`
`In addition, his ability
`
`to cate for his wife of over 50 years, who
`
`suffered
`
`from physical
`
`and emotional
`
`problems, was substantially
`
`diminished.
`
`The evidence at trial provides
`
`ample support
`
`for a fmding that Mr. Matteson
`
`is entitled to
`
`an award in the range of
`
`the highest verdicts
`
`for past pain and suffering.
`
`However,
`
`the jury's
`
`verdict of 5 million
`
`dollars appears to substantially
`
`exceed any comparable
`
`verdict
`
`to date. Thus,
`
`without minimizing
`
`the suffering
`
`that Mr. Matteson has endured,
`
`the award for past pain and
`
`dollars
`
`3175,000 per month).
`
`I
`
`Iu
`
`suffering
`
`should be reduced to 3 million
`
`(or approximately
`
`As to future pain and suffering,
`
`the evidence supports the jur y's finding
`
`that Mr. .
`
`Matteson would
`
`live another 24 months, a figure in line with the medical
`
`testimony
`
`as to the
`
`survival
`
`rates for
`
`this incurable
`
`disease. Moreover,
`
`thereis no basis to believe that Mr. Matteson
`
`will not suffer
`
`the almost unimaginably
`
`gruesome final
`
`illness that
`
`the evidence showed is
`
`characteristic
`
`of a death from mesothelioma.
`
`Awards
`
`for future pain and suf Tering in the range of 4 million
`
`dollars have been upheld.
`
`[see
`
`^a==+i
`
`9 9 Supp 2d 307, agga[future
`
`award rernitted to 4 million
`
`dollars
`
`in 1998];
`
`Fallon. Sup Ct, NY County, Ex. 9 to P.'s Aff.
`
`In Opp., aggg[future
`
`award remitted
`
`to 3.6
`
`million
`
`dollars
`
`in 1996].) Relying
`
`on these awards, Okonite argues that
`
`the future swami
`
`for Mr.
`
`Matteson
`
`should be no higher
`
`than 3.6 million.
`
`flowever,
`
`taking into account
`
`the passage of
`
`time and increases
`
`in the amounts ofjury
`
`awards since these awards were upheld,
`
`the court
`
`finds
`
`t(
`
`that an award in the amount of 4.5 million
`
`dollars
`
`for future pain and suffering would not be
`
`
`
`Page-9-Page-9-
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`A45
`
`I
`
`excessive.
`excessive.
`
`Turning
`
`to the Lustenring
`
`case,
`
`l¼r. Lusteming,
`
`although in his mid-70s, was physically
`
`and socially
`
`active, and in excellent
`
`health prior
`
`to the onset of his illness. He first experience
`
`symptoms
`
`in April
`
`2000. He underwent
`
`two painful
`
`surgeries (thoracotomics)
`
`in October and
`
`December
`
`2000 to drain pleural effusions.
`
`During
`
`the course of his illness, he experienced
`
`intense pain, shortness of breath, progressive weakening
`
`and weight
`
`loss, and increasing
`
`depression.
`
`His. social and family
`
`activities were increasingly
`
`curtailed until,
`
`in the final months
`
`of his illness, he was unable to do "much
`
`of anything."
`
`As his condition
`
`further deteriorated,
`
`he
`
`became bedridden,
`
`unable to care for himself,
`
`and af$icted with agonizing pain.
`
`Based on the trial
`
`record, and considering
`
`comparable
`
`verdicts,
`
`the court concludes
`
`that
`
`an award to Mr. Lusteming's
`
`estate of 4.5 million
`
`dollars would not be excessive. As to the loss
`
`.
`
`It
`
`II
`
`I I
`
`!
`
`l
`
`II
`
`IIII
`1
`
`of consortium award to Mr. Lusteming's
`
`wife,
`
`there appears to be scant authority
`
`addressing the
`
`reasonableness
`
`of such an award in the asbestos litigation
`
`context.
`
`Arguing
`
`that a percentage
`
`reduction
`
`formula
`
`should be applied to reduce this award to a maximum of $20,000 per month,
`
`defendant
`
`John Crane relies on Didner, whose continuing
`
`authority,
`
`as discussed above,
`
`is
`
`questionable.
`
`Even rejecting
`
`the percentage
`
`reduction
`
`approach, however,
`
`the court
`
`finds that
`
`the
`
`loss of consortium award is excessive. While the record supports the finding that
`
`the Lustenrings
`
`had a long and loving marriage
`
`of over 50 years, and that Mr. Lustenring was a considerable
`
`source of support
`
`to his wife,
`
`the court
`
`finds that
`
`the award should be reduced to S750,000.
`
`Accordingly,
`
`it
`
`is hereby ORDERED
`
`that
`
`the motions
`
`of defendants Okonite and John
`
`Crane are granted to the following
`
`extent:
`
`The fury's
`
`finding
`
`ofrecklessness
`
`against Okonite is struck; and it
`
`is further
`
`
`
`Page -10-Page-10-
`
`

`

`FILED: NEW YORK COUNTY CLERK 01/13/2018 01:36 AM
`NYSCEF DOC. NO. 952
`
`INDEX NO. 190219/2016
`
`RECEIVED NYSCEF: 01/13/2018
`
`I
`
`t5j
`
`.
`
`I i
`
`\\
`
`A46
`
`ORDERED
`
`that a new trial by plaintiff Matteson
`
`against defendants Okonite and John
`
`Crane is ordered unless plaintiff Matteson stipulates
`
`to the entry of a new judgment
`
`in the
`
`amount of 7.5 million
`
`dollars;
`
`and it
`
`is further
`
`ORDERED
`
`that a new trial by the estate of John Lustonring
`
`and Watalie Lustetaing
`
`is
`
`ordered unless plaintiff
`
`estate stipulates to the entry of a new judgment
`
`in the amount of 4.5
`
`million
`
`dollars, and plaintiff
`
`Natalie Lustenring
`
`stipulates
`
`to the entry of a new judgment
`
`in the
`
`amount of $750,000;
`
`and it
`
`is further
`
`ORDERED
`
`that
`
`the motions are otherwise
`
`denied.
`
`Settle judgment
`
`This constitutes
`
`the decision and order of
`
`the court.
`
`Dated. New York, New York
`4, 2003
`April
`
`MARCŸ
`
`MAN,
`
`J.S.C.
`
`II
`
`PagePage -l-l 1-l-
`
`