FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
`
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`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK: PART 1
`---------------------------------------------------------------------)(
`IN RE: NEW YORK CITY ASBESTOS LITIGATION
`-----------------~---------------------------------------------------)(
`IVANA PERAICA, as Administratrix for the Estate of
`IVO J. PERAICA, and MILICA PERAICA,
`Individually,
`
`Plaintiffs,
`
`Index No.: 190339/2011
`
`- against-
`
`A.O. SMITH WATER PRODUCTS CO., ET AL.,
`
`Defendants.
`---------------------------------------------------------------------)(
`HON. MARTIN SHULMAN:
`
`.
`
`Decision and Order
`
`Defendant Crane Co. ("Crane" or "Defendant") has filed a post-trial motion
`
`pursuant
`
`to CPLR 4404(a)
`
`for judgment as a matter of law notwithstanding a jury verdict
`
`rendered in favor of Decedent-Plaintiff
`
`Ivo J. Peraica ("Peraica" or "Plaintiff')
`
`in this
`
`product
`
`liability (asbestos exposure) action. The underlying joint trial
`
`initially involving
`
`eight plaintiffs and numerous defendants began on November 11,2012 and ended on
`
`March 1, 2013, when the jury returned a verdict awarding Peraica,
`
`the sole remaining
`
`plaintiff, $35 million for personal
`
`injuries and wrongful death. The jury found Crane, the
`
`sole remaining defendant, 15% liable for Plaintiff contracting, and dying from
`
`mesothelioma, an asbestos-related disease and, for purposes of CPLR 1602, also
`
`found Crane was "reckless"
`
`in failing to warn of the toxic hazards of asbestos.
`
`In seeking judgment setting aside the verdict and dismissing Peraica's action as
`
`against Defendant as a matter of law, Crane principally relies on Rastelli v Goodyear
`
`Tire & Rubber Co., 79 NY2d 289 (1992)("Rastellt'),
`
`In re: Eighth Jud. Dist. Asbestos
`
`Litig. (Drabczyk), 92 AD 3d 1259 (4th Dept), Iv denied 19 NY3d 803 (2012) ("Drabczyf(')
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`as well as Surre v Foster Wheeler, LLC, 831 F Supp 2d 797 (SONY 2011). Reduced to
`
`its essence, Crane particularly contends, as it did throughout
`
`this protracted trial, that
`
`based on the record evidence, Defendant's "bare metal" defense (i.e., the boilers in
`
`issue Crane manufactured and placed into the stream of commerce contained no
`
`asbestos-containing materials, components or parts ["bare metal product"]) shields it
`
`from any liability for Peraica's asbestos-related illness and wrongful death. Crane also
`
`contends that a post-verdict
`
`judgment of dismissal
`
`is warranted because admittedly
`
`there was no evidence Defendant manufactured/supplied
`
`the asbestos-containing
`
`insulation materials ("ACMs") to which Plaintiff was fatally exposed. Consequently,
`
`Crane had no legal duty to warn of the dangers inherent
`
`in the ACMs others
`
`manufactured/supplied,
`
`even if the use of these ACMs with its boilers was foreseeable
`
`(viz., foreseeability, alone, does not define duty--it merely determines the scope of the
`
`duty once it is determined to exist [quotation marks and citations omitted]).
`
`In addition to the foregoing, Crane alternatively highlights alleged errors which
`
`either warrant a judgment of dismissal or, at a minimum, a new trial: 1) instructions to
`
`the jury were not consistent with Rastelli and/or Drabczyk (i.e., liability attaches only
`
`when a manufacturer or distributer actually placed the harm-causing product
`
`into the
`
`stream of commerce); 2) an instruction to the jury was not consistent with the "law of
`
`the case" in a prior decision of the NYCAL Coordinating Justice in the Peraica action
`
`granting Taco Pump's motion for summary judgment of dismissal
`
`(Peraica v A.D. Smith
`
`Water Prods., nor, Index No. 190339/11, August 27, 2012 [Sup Ct NY Co, Klein-Heitler,
`
`-2-
`
`

`

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`NYSCEF DOC. NO. 628
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`J])1 (Exhibit A to Cottle Aff in Support of Post-Trial Motion); 3) a claimed absence of
`
`evidence that Plaintiff would have read and heeded an asbestos-related
`
`health warning
`
`precluded a "heeding presumption"
`
`instruction to the jury that was arguably given
`
`erroneously as a conclusive presumption rather than a rebuttable one; 4) a "continuing
`
`duty to warn" instruction to the jury was unwarranted in the absence of post-sale
`
`evidence of later-discovered dangers triggering a duty for Crane to continuously warn
`
`about the hazards of asbestos thermal
`
`insulation supplied by others; 5) consolidated
`
`jury trials with multiple plaintiffs and other co-defendants allegedly charged with
`
`manufacturing and supplying products and equipment with ACMs severely prejudices
`
`any defendant proffering a "bare metal" defense; 6) the trial record neither supported a
`
`"recklessness"
`
`instruction to the jury nor its finding of recklessness against Crane; 7)
`
`where Peraica's varied employers as well as owners of certain work sites that
`
`underwent asbestos removal were knowledgeable about the hazards of ACMs and
`
`failed to warn Peraica and others similarly situated about same,
`
`then a jury instruction
`
`should have been given advancing the superceding/intervening
`
`cause doctrine;2 and/or
`
`found no evidence that Taco's pumps,
`1 In searching the record, Justice Klein-Heitler
`manufactured and supplied without any ACMs, needed same to properly function or that ACMs
`were ever recommended or specified for this machinery in its sales catalogues, etc. This ruling
`obviously involved a different co-defendant, was grounded on a different
`factual
`record and is
`simply not applicable to Crane. Moreover, by failing to assert
`this "law of the case" challenge
`during the trial or even at the charge conference, Defendant effeCtively waived this challenge
`(see Golanski Opp Aff at ~~ 57-60).
`
`2 Crane claims there was evidence suggesting that Peraica's employers and certain
`entities such as Mt. Sinai Medical Center and New York Port Authority, among other owners of
`certain sites where Plaintiff worked, had an independent
`legal duty to not only warn of the
`dangers of asbestos, but also to implement safety measures to control/protect against worker
`exposure. Thus, Crane argues that this instruction would have enabled the jury to consider
`whether Peraica's employers and these owners jointly and severally breached their respective
`legal duty to Plaintiff constituting a superceding/intervening
`cause which,
`in turn, breaks the
`
`-3-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`8) remittitur because the $35 million pain and suffering award for Peraica's asbestos
`
`related illness and,wrongful death is excessive and unreasonable under the
`
`.circumstances (e.g., reported sustainable verdicts awarded decedent plaintiffs in similar
`
`circumstances were in the low/high-mid seven figure range).
`
`Finally, Crane seeks post-verdict discovery to obtain the total amount of funds
`
`Peraica has recovered or stands to recover from the bankruptcy trusts, settling
`
`defendants, etc., for asbestos related injuries to properly mold a judgment,
`
`if any, in
`
`Plaintiff's favor.
`
`Peraica's counsel,
`
`in urging the court to deny entirely Crane's post-verdict
`
`motion, extensively particularizes the following factual/legal points raised before, during
`
`and after the verdict:3
`
`•
`
`Not only did Crane's earliest product catalogs published during the first decade
`of the 20th Century (see illustratively, Exhibits 3 and 4 to Golanski Opp Aff),
`aggressively promote the sale of asbestos insulation to be applied to its boilers
`"making the benefits of asbestos insulation an integral part of its marketing
`"designed and
`scheme ... ",4 but record evidence also established that Defendant
`supplied its products with asbestos containing gaskets, packing,
`insulation and
`.. ";5
`cement.
`
`I
`i
`
`.
`
`causal chain thereby absolving Crane of any liability for Peraica's mesothelioma and wrongful
`death.
`
`3 Alani Golanski, Esq. submitted a 100 page affirmation ("Golanski Opp Aff") with
`extensive references/citations
`to 49 exhibits comprising portions of trial transcripts,
`trial
`evidence including,
`inter alia, Crane's product catalogues, state of the art documents (e.g., US
`government
`reports,
`industrial and scientific journals,
`trade journals, etc.) as well as court
`decisions, copies of which were contained in 4 bound volumes.
`
`Index No. 190320/10,
`v A. 0. Smith Water Prods.; nor,
`4 See Vespe-Benchimol
`November 15, 2011 (Sup Ct NY Co, Klein-Heitler, J)(Exhibit 22 to Golanski Opp Aft at pp 3-4).
`
`5 See Contento v A.G. & S., Inc., 2012 NY Misc LEXIS 1156, 2012 Slip Op 39617U,
`(Sup Ct NY Co, Klein-Heitler, J)(Exhibit 24 to Golanski Opp Aff).
`
`[*6]
`
`-4-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
`
`RECEIVED NYSCEF: 10/23/2017
`
`•
`
`•
`
`•
`
`•
`
`•
`
`Crane's corporate representative candidly acknowledged that at least from the
`turn ?f the 20th Century through the 1970s, this multi-national company was a
`dominant pla~er ma~ufacturing and/or distributing equipment
`(e.g., boilers,
`pumps, etc.),
`Industnal components (i.e., valves) and associated insulation
`pr?ducts (e.g., asbestos~containing pipe covering, block, cement, cement pipe,
`millboard, gaskets, packing and rope, etc.)6 and did the latter through its Branch
`Houses a/k/a Crane Supply Houses (smaller versions of a "Home Depot"),
`located regionally throughout
`the United States (Exhibits 1-6 to Golanski Opp
`Aft);
`
`Throughout decades of Crane's national sales of these widely-used ACMs,
`Defendant knew/foresaw the ACMs it manufactured and/or distributed
`were/would be used to insulate heat-generating equipment and components for
`safety and cost-efficiency, did/would require regular removal and replacement
`and did/would generate high levels of visible dust upon manipulation (installation
`or removal
`[i.e., rip-outs]) due to their friability;
`
`From lectures and panel discussions at regional/national business conferences,
`from medical and scientific literature disseminated in varied continents and the
`United States (from the 1890s through the 1960s) (see illustratively, Exhibits 7
`and 36 to Golanski Opp Aft) as well as from trade association journals, Crane's
`high-level executives (and particularly its medical director
`[s]) acquired state-of-
`the-art knowledge that exposure from ACMs can cause asbestos-related
`diseases such as mesothelioma;
`
`In accordance with Berkowitz v A. C. & S., Inc., 288 AD2d 148 (1st Dept 2001)
`the jury properly determined the Berkowitz duty issue, viz., even
`("Berkowitz"),
`though Crane sold a bare metal product,
`it had a duty to warn about the
`conspicuous hazards of ACMs third-parties foreseeably manufactured and/or
`used therewith subsequent
`to that sale, and Crane's failure to warn was a basis
`for liability to Peraica, who was injured and ultimately killed from toxic exposure
`to ACMs applied to/installed on its bare metal product;
`
`in-
`Ample record evidence proved that despite having a century's worth of actual,
`depth knowledge that workers such as Peraica were at high risk of injury due to
`high-dose asbestos exposure from removing ACMs from Defendant's boilers (far
`more than a general awareness of the linkage between asbestos exposure and
`disease), Crane displayed a reckless disregard for Plaintiff's safety concerns
`warranting a "recklessness"
`jury charge;
`
`6 For more than three quarters of a century, Crane also sold ACMs manufactured by
`third parties and closely identified with these products and their manufacturing companies
`which Defendant perceived to be as good as its own (Golanski Opp Aff at ~ 12).
`
`-5-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
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`RECEIVED NYSCEF: 10/23/2017
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`finding Crane was reckless
`T~e record evidence amply supported the jury verdict
`failure to warn workers such as Peraica
`(VIZ., Defendant's intentional
`demonstrated its conscious indifference to the high probability that Peraica would
`contract a fatal asbestos-related disease);
`
`Plaintiff's unrebutted testimony read into the record of his newfound, albeit
`cursory, knowledge about the hazards of ACMs during the latter part of his
`working life as an asbestos remover as well as his then rudimentary efforts to
`protect himself (Exhibit 1 to Golanski Opp Aff at pp 5149-5168) allowed the jury
`to apply the correctly given "heeding presumption"
`instruction and conclude that
`Peraica would have heeded a warning about the dangers of breathing asbestos,
`if Crane had provided one, and taken appropriate precautions;
`
`Crane not only had a duty to warn about the hazards of asbestos exposure when
`it sold its boilers, but Defendant also had a continuing post-sale duty to warn
`because of the foreseeable use of ACMs for the operation and maintenance of
`its boilers, and because of the medical and scientific research (from the turn of
`the 20th Century up to and including the period of Peraica's working life)
`incontrovertibly showing the causative link between ultra hazardous asbestos
`exposure (even to low doses for short durations) and disease,
`justifying this
`correctly given jury instruction as to the latter;
`
`is the product of a jury
`While Crane hyperbolically claims the Peraica verdict
`exposed to irrelevant, cumulative and inflammatory evidence admitted in this
`joint trial of eight mesothelioma plaintiffs,
`including Peraica, nonetheless,
`there is
`no legal and/or factual basis to set aside the verdict and seek a new trial based
`on Crane's post-trial challenge to the underlying trial consolidation order (Adler V
`Air & Liquid Sys. Corp., nor, Index No. 190181/11, August 7,2012 [Sup Ct NY
`Co, Feinman, J])("Consolidation Order") (Exhibit 40 to Golanski Opp Aft);
`
`Crane cannot point to any record evidence that warranted the jury allocating
`more even percentages of fault among the tortfeasor-entities
`listed on the verdict
`sheet, whereas,
`the reported assigned percentages reflected the jury's fair
`interpretation of the evidentiary factors supporting Crane's and each listed
`tortfeasor's relative degree of fault (CPLR 1402) for Peraica's mesothelioma;
`
`Because the record is devoid of any evidence that the claimed negligent acts of
`Peraica's employers and/or worksite property owners (in failing to protect Plaintiff
`from asbestos exposure) were so extraordinary and, perforce, unforeseeable as
`to shield Crane from liability for its failure to warn, the court correctly did not give
`a superceding/intervening
`cause instruction to the jury;
`
`Taking a "totality of circumstances" approach to Peraica's daughter's
`unchallenged testimonial account of the breadth, depth and two-year duration of
`Peraica's extraordinary pain and suffering (both physically and emotionally from
`
`-6-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
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`
`the onset of his mesothelioma up to and including his wrongful death) as well as
`to the unchallenged portion of the expert medical
`testimony about Plaintiff's
`at,-r,-r 181-206) the jury
`terminal
`i1lne~s pro~ression (see G61anski OppAff
`awarded a fair and Just sum of $35 million, still,
`if remittitur
`is being considered
`the reduction should be a modest one; and
`
`'
`
`•
`
`Finally, Crane's p~st-verdict discovery requests are improper and unnecessary to
`properly mold the Judgment.
`.
`.
`.
`
`DISCUSSION
`
`The following is the basic legal framework for deciding a post-verdict motion for a
`.
`judgment of dismissal notwithstanding the verdict or, alternatively,
`
`to set it aside and
`
`.
`
`grant a new trial:
`
`A court may set aside a jury verdict and grant judgment as a matter of law
`to the losing party only where "there is simply no valid line of reasoning
`to
`and permissible inferences which could possibly lead rational
`[persons]
`the conclusion reached by the jury on the basis of the evidence presented
`at trial" (Cohen v Hallmark Cards, 45 NY2d 493,499).
`
`Brewster v Prince Apts.,
`
`Inc., 264 AD2d 611; 612 (1st Dept 1999), Iv denied 94 NY2d
`
`762 (2000); see also, Smolinsky v 46 Rampasture Owners,
`
`Inc., 230 AD2d 620, 646
`
`NYS2d 110 (1st Dept 1996); and Niewieroski v National Cleaning Contrs., 126 AD2d
`
`424, 425 (1st Dept 1987). Upon the court's review of the trialrecord,
`
`it must construe
`
`the evidence in the light most favorable to the non-moving party (see Mirand v City of
`
`New York, 84 NY2d 44, 50 (1994]). Restating the latter standard more broadly:
`
`To be entitled to a judgment as a matter of law, the defendant-movant
`must demonstrate that the plaintiff
`failed to make.out a prima facie case;
`the plaintiff's evidence must be accepted as true, and the plaintiff must be
`given the benefit of every favorable inference which can reasonably be
`drawn from the evidence (Windisch V Weiman, 161 AD2d 433, 437). The
`motion should be granted onlyifthere
`is no rational process by which the
`jury could find for plaintiff as against
`the moving defendant
`...
`
`Campbell v Rogers & Wells, 218 AD2d576, 580 (1st Dept 1995).
`
`-7-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`
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`
`"[w]hile the trial court has the power to set
`Under a different standard,
`aside the jury's verdict
`if contrary to the weight of the evidence (CPLR
`4404 [a]), the court must first conclude 'that the jury could not have
`reached its verdict on any fair interpretation of the evidence'
`(Delgado v
`Board of Educ., 65 AD2d 547, affd 48 NY2d 643) ... " Wiseberg v
`Douglas Elliman-Gibbons & Ives, Inc., 224 AD2d 361,638 NYS2d 82 (1st
`Dept 1996).
`In this context,
`the court's analysis will not involve a question
`of law, but rather will require a discretionary balancing of many factors.
`See Nicastro v Park, 113 AD2d 129, 495 NYS2d 184 (2nd Dept 1985).
`Thus,
`the trial court may not set aside the jury verdict "merely because it
`disagrees with the result.
`Its power in this area must be exercised with
`caution since,
`in the absence of an indication that substantial
`justice has
`not been done, a litigant
`is entitled to the benefit of a favorable verdict.
`Fact-finding is within the province of the jury, not the trial court
`... " Brown
`v Taylor, 221 AD2d 208, 209, 633 NYS2d 170,171 (1st Dept 1995).
`
`Sorrenti v City of New York, 17 Misc3d 1102(A), 2007 NY Slip Op 51796(U), at *6-7
`
`(Sup Ct NY Co, August 16, 2007), affd 67 AD 3d 407 (1st Dept 2009), affd 16 NY3d 472
`
`(2011).
`
`During the trial, the jury heard undisputed evidence that: Peraica, after
`
`emigrating to the United States from Croatia in 1978, obtained employment as an
`
`asbestos remover, and at various commercial sites throughout New York City, Plaintiff
`
`removed exterior asbestos insulation from pumps, valves, chillers,
`
`turbines and boilers;
`
`where relevant here, the jury learned that due to the nature of his work over a period of
`
`20 years, Peraica was always in close proximity to asbestos-insulated Crane boilers
`
`and was regularly and frequently exposed to harmful asbestos dust created after he
`
`removed the old insulation from this equipment;7 Crane never provided any warning
`
`fact as to the quantitative
`there was no genuine issue of material
`7 Parenthetically,
`nature of Peraica's asbestos exposure and the jury never had to engage in any fact-based
`analysis of Plaintiff's work-related, high-dose exposure to asbestos thermal
`insulation on
`Crane's boilers to determine whether he met the "frequency-regularity-proximity"
`test (see,
`Lohrmann v Pittsburgh Corning Corp., 782 F2d 1157 [4th Cir 1986]), adopted as a legal
`standard of exposure in many jurisdictions.
`
`-8-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
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`
`about the hazards of asbestos, and Peraica contracted, and eventually died from,
`
`asbestos-caused mesothelioma; and his exposure to asbestos-insulated Crane boilers
`
`was among the contributing significant causes of Plaintiff's fatal cancer (see relevant
`
`portions of the trial transcript at Exhibit 1 to Golanski Opp Aft).
`
`Against
`
`this undisputed factual backdrop,
`
`the crux of Crane's post-verdict motion
`
`is its oft-stated claim made throughouUhislitigation
`
`that as a manufacturer and
`
`distributor of an otherwise sound bare metal product, .ithad no duty to warn against
`
`the
`
`hazards of ACMs subsequently supplied/applied by others to insulate its boilers a!'"Jd,
`
`therefore, cannot be liable for Peraica's asbestos7related illness and wrongful death.
`
`Simply restated, Crane contends the Berkowitz duty issue was a legal one for the court
`
`to resolve in its favor and should never have been deemed a disputed issue of material
`In this context, Crane relies on a perceived national
`
`fact for the jury to resolve.
`
`jurisprudential
`
`trend to shield a manufacturer advancing a bare metal defense from
`
`liability,8 a trend Crane persistently urges New York courts to adopt.
`
`(
`
`Nonetheless,
`
`this court declines to do so.
`
`In addressing the Berkowitz duty
`
`issue, there is no need to reinvent
`
`the wheel as this decision adopts and fully
`
`incorporates the thorough, well-reasoned analysis the Hon. Joan Madden, JSC,
`
`provided in Dummitt v A. W. Chesterton (In re: New YorkGity Asbestos Litig.), 36
`
`Misc3d 1234(A), 2012 NY Slip Op 51597(U)-(Sup Ct, NY Co, August 20,2012,
`
`Madden, J) ("Dummitt). Hence,
`
`this court readily concurs with the ratio decidendi
`
`contained in the comprehensive Duty to Warn section of Dummitt at [***4-25], and
`
`8E.g., O'Neil v Crane Co, 266 P3d 987 (Sup Ct Cal, 2012), Simonetta v Viad Corp., 197
`P3d 127 (Sup Ct Wash 2008) and Conner v Alfa Laval,
`Inc., 842 F Supp 2d 791 (EDPA 2012).
`
`-9-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
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`
`tailors it to this case in a one-sentence summary, namely, Berkowitz and successive
`
`New York case law (see Exhibits 9-28 to Golanski Opp Aff), applying a well developed
`
`products liability doctrine wholly consistent with Rastelli (e.g., Liriano v Hobart Corp., 92
`
`NY2d 232 [1998]), make clear that the Berkowitz duty issue is a factual one for a trier of
`
`fact to determine even though others supplied/applied ACMs to Crane's bare metal
`
`product after its sale.9
`
`This being said, there was more than sufficient
`
`record evidence to persuade the
`
`jury to resolve the Berkowitz duty issue and conclude that "Crane meant
`
`for its ...
`
`[boilers] to be used, or knew or should have known that
`
`its ...
`
`[boilers] would be used
`
`with asbestos-containing
`
`...
`
`insulation to warrant a [jury] determination that Crane was
`
`...
`
`liable under a failure to warn theory in strict products liability and negligence ...
`
`ff
`
`(bracketed matter added)
`
`(Dummitf at ***14). On this record,
`
`the jury properly resolved
`
`the Berkowitz duty issue against Crane, finding Defendant
`
`liable for its failure to warn
`
`not on the mere possibility that ACMs would be used to insulate Crane boilers, but
`
`rather on a known probability,
`
`,
`
`if not a cast-iron certainty,
`
`'
`that Crane "meant
`
`for its [bare
`
`metal] product
`
`to be used with a defective product
`
`[Le., ACMs](even]
`
`of another
`
`manufacturer, or knew or should have known of its use ...
`
`ff (bracketed matter
`
`added)(Id.
`
`at ***15).
`
`the Appellate Division, Fourth Department,
`in Drabczyk,
`that
`is mindful
`9 This court
`concluded that a defendant-manufacturer
`and distributer of both asbestos-containing
`valves
`and bare metal valves could not be liable for the decedent-plaintiff's work-site exposure to
`ACMs others supplied/applied to the latter, post-sale. Even so, Drabczyk is not binding authority
`for this court on the Berkowitz duty issue. See generally, Mountain View Coach Lines,
`Inc. v
`Storms, 102 AD2d 663,664-665
`(2d Dept 1984).
`
`-10-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
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`
`Accordingly,
`
`the branch of Crane's post-verdict motion for a judgment of
`
`dismissal notwithstanding the verdict because it claimed no legal duty to warn of the
`
`hazards of ACMs others manufactured and subsequently supplied/applied to its boilers
`
`is denied. LePatner v VJM Home Renovations,
`
`Inc., 295 AD2d 322 (2d Dept 2002).
`
`In
`
`considering this same central argument
`
`in Crane's post-verdict motion to set aside the
`
`verdict as being against
`
`the weight of the evidence,
`
`it also can"not be said that the
`
`~"verdict [on liability]
`
`for the [P]laintiff
`
`... so preponderate[d]
`
`in favor of ...
`
`[Crane] "that
`
`[the verdict] could not have been reached on any fair interpretation of the
`
`evidence ... " (bracketed matter added). Moffatt v Moffatt, 86 AD2d 864 (2d Dept
`
`1982), quoted with approval
`
`in Lolikv £Jig V Supermarkets,
`
`Inc., 86 NY2d 744 (1995).
`
`In conducting a factual
`
`inquiry of the trial record, this court further finds no basis to set
`
`aside the verdict as against
`
`the weight of the evidence and direct a new trial.
`
`Regarding the "heeding presumption"
`
`instruction,
`
`this court cannot
`
`fathom the
`
`basis for Crane's claim that
`
`its wording, either express or implied,
`
`renders the
`
`presumption a conclusive one. This claim is simplyunsupportable.
`
`In any event, the
`
`Appellate Division, First Department, citing wittt approval
`
`the relevant
`
`federal case law
`
`interpreting New York law in "failure.to warn" cases, endorsed the proposition that "New
`
`York Law presumes users will heed warnings provided with a product
`
`... " (Union
`
`Carbide Corp. v Affiliated FM Ins. Co., 101.AD3d 434[15t Dept 2012]). Thus,
`
`this
`
`properly worded instruction has solid jurisprudential support. Moreover, Crane had a
`
`full and fair opportunity to submit evidence to rebut,this presumption and persuade this
`
`jury that even with a proper warning, Peraica would more than likely not have heeded it.
`
`Contrarily, except
`
`for Crane directing the jury's attention to information about Plaintiff's
`
`-11-
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`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
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`RECEIVED NYSCEF: 10/23/2017
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`regular wine intake, albeit without evidence of any long-term .ill effects, Defendant
`
`cannot turn to anything in the trial record that would .have demonstrated that had
`
`Peraica been properly warned about the hazards of breathing toxic asbestos dust, he
`
`would not have taken appropriate precaujions to avoid the harmful effects of his
`
`extensive exposure.
`
`Given Crane's admitted "state-of-the-art" knowledge about the ever growing
`
`dangers of asbestos-containing
`
`insulation used with its boilers (expanded with each
`
`passing decade during a 75 year period),
`
`it was proper for the jury to consider not only
`
`whether Crane had a duty to warn of the ultra-hazardous risks of exposure to ACMs
`
`Crane knew or should have known would be supplied/applied to its bare metal product
`
`at the time of sale, but also whether Crane had a continuing duty to warn throughout
`
`its
`
`useful
`
`life (see Cover v Cohen, 61 NY2d 261,265 [1984])(a duty to warn may be
`
`imposed on a manufacturer of a productotherwise
`
`safe at the time of sale when
`
`notified of emerging post-sale risks of harm from user-operation). Accordingly,
`
`this
`
`court properly gave a "continuing duty" instruction in consonance with the law.
`
`On the strength of the adopted Dummitt analysis of the Berkowitz duty issue, this
`
`court also concludes that a reasonable view of the evidence justified giving the jury a
`
`I
`
`recklessness instruction, and, its inquiry here establishes "there ...
`
`[was a] valid line of
`
`reasoning and permissible inferences that,
`
`, . [led t~is] rational
`
`jury to conclude that
`
`[D]efendant acted with reckless disregard for decedent's safety for failing to warn him of
`
`the dangers associated with,
`
`. , [insula~ing ACMs others manufactured
`
`and supplied
`
`that was meant to be/was applied to its boilers]
`,
`
`, , ,"(bracketed matter added and
`
`.
`
`citations omitted)(Drabczyk,
`
`92 AD3d at 1260).
`
`-12-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
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`RECEIVED NYSCEF: 10/23/2017
`
`The branch of Crane's post-v_erdict motion to set aside the verdict and grant a
`
`new trial based on this court's unwiHingnes~ to give the jury a "superceding cause"
`
`instruction is groundless as well.
`
`Where the acts of a third person intervene between the defendant's
`conduct and the plaintiff's injury, the causal connection is not
`the
`automatically severed.
`In such a case, liability turns upon whether
`intervening act is a normal or foreseeable consequence of the situation'
`created by the defendant's n'.egligence . ..
`If the intervening act is
`extraordinary under the circumstances, not foreseeable in the normal
`course of events, or independent ofar
`far removed from the defendant's
`conduct,
`it maywell be a superseding act which breaks the causal nexus.
`
`Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 (1980) (citations omitted).
`
`As the trial record makes clear, Crane did not prove any alleged negligence of
`
`Peraica's employers and/or work-site property owners in failing to protect Peraica from
`
`work-site asbestos exposure (e.g., a failure to warn, etc.) was so extraordinary as to be
`
`unforeseeable to Defendant
`
`thereby shielding Crane from any culpability for its own
`
`negligence in failing to warn. This challenge also seems to be borne of an afterthought
`
`especially when Crane made no requ~st to even list any employer or work-site property
`
`owner on the verdict sheet, which could have otherwise allowed the jury to consider
`
`allocating a percentage of fault to that entity for contributing to Plaintiff's asbestos-
`
`related illness (see Golanski Opp Aff at ~ 176, n. 7).
`
`Crane's post-verdict motion also takes issue with the jury finding Defendant 15%
`
`liable for causing Peraica's terminal
`
`illness complaining that this percentage of fault was
`
`greater than the percentages of fault allocated to other tortfeasors not at trial.
`
`In other
`
`words, Crane believes the jury indefensibly assigned it a greater share of the blame
`
`because it chose to defend to the bitter end and therefore, deserves a new trial. To
`
`-13~
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`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
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`RECEIVED NYSCEF: 10/23/2017
`
`mitigate against
`
`its share of liability, Crane had the burden of proving the respective
`
`culpability of one or more of its co-defendants, any settling tortfeasor and one or more
`
`absentee bankrupt
`
`tortfeasors 10 and persuading the jury that the degrees of fault among
`
`all the listed tortfeasors were of.the same magnitude. Evidently, Defendant managed to
`
`do so with at least one absentee bankrupt
`
`tortfeasor as the jury found Johns-Manville
`
`15% liable as well (see Exhibit 47 to Golanski Opp Aft).
`
`In any event,
`
`the relative
`
`degrees of fault the jury apportioned among the listed tortfeasors on the verdict sheet
`
`were based on a fair interpretation of the evidence and will not be disturbed. Beecham
`
`v New York City Trans. Auth., 54 AD 3d 594 (1st Dept 2008).
`
`In Crane's post-verdict motion, Defendant briefly reargues its prior challenge to
`
`the Consolidation Order. A traditional standard in the defense playbook, defendants
`
`routinely oppose consolidation of varied clu'sters of NYCAL cases for joint trials always
`
`claiming prejudice and due process violations (viz., justice can only be achieved one
`
`case at time).
`
`During the pre-trial stages of this litigation, 22 personal
`
`injury/wrongful death
`
`actions comprising an April 2012 in extremis cluster were referred to Hon. Paul
`
`Feinman, JSC, for trial pursuant
`
`to the NYCAL Amended Case Management Order.
`
`Crane, having had a full and fair opportunity to oppose an omnibus order to show cause
`
`which sought to consolidate these cases for joint trials, expansively made the'same
`
`from
`is not exempt
`10 It is now well settled in NYCAL, a bankrupt "tortfeasor
`that such entity's culpability is
`consideration of damages under CPLR article 16. To the extent
`50% or less, exposure for non-economic damages can still be calculated in apportioning
`liability ...
`11 Tancredi v A.C.& S., Inc. (In re: New York City Asbestos Litig.) , 6 AD 3d 352 (1st
`Dept 2004).
`, )
`
`-14-
`
`

`

`FILED: NEW YORK COUNTY CLERK 10/23/2017 04:22 PM
`NYSCEF DOC. NO. 628
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`INDEX NO. 190245/2015
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`RECEIVED NYSCEF: 10/23/2017
`
`points it now summarily makes in its post-verdict motion.
`
`In exercising discretion on a
`
`consolidation application pursuant
`
`to CPLR 9 602(a), Justice Feinman considered
`
`certain suggested factors for determining the appropriateness of joint
`
`trials in asbestos
`
`exposure cases (see Malcolm v National Gypsum Co., 995 F2d 346, 351-352 (2d Cir
`
`1993]), weighed the pros and cons, namely,
`
`the commonalities and individualities and
`
`divided the 22 cases into three d