throbber
INDEX NO. 190374/2014
`FILED: NEW YORK COUNTY CLERK 10/19/2016 12:04 PM
`NYSCEF DOC. NO. 272
`RECEIVED NYSCEF: 10/19/2016
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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
`
`SANDRA GERITANO, Individually and as Executrix
`Of the Estate of VINCENT ANTHONY GERITANO,
`deceased,
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`Plaintiffs,
`
`-against-
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`A.O. SMITH WATER PRODUCTS CO., et a1.,
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`Defendants.
`................................................................__X
`
`HON. CYNTHIA KERN, J.S.C.
`
`Index No. 190374/2014
`_
`DECISION/ORDER
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`Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion
`for :
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`Papers
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`= Numbered
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`1
`2
`3
`. 4
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`Notice of Motion and Affidavits Annexed..... ..
`Answering Affidavits........................... ..
`Replying Affidavits.
`Exhibits................................................................... ..
`
`
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`Defendant Burnham LLC (“Burnham") has filed the present post-‘trial motion pursuant to
`CPLR § 4401 and § 4404 for a directed verdict or an order setting aside the verdict and directing
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`that judgment be entered in favor of Bumham, or in the alternative, for a new trial, or in the
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`alternative, for remittitur of the jury verdict. For the reasons set forth below, Bumham’s motion
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`is granted in part and denied in part.
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`In or around October 2014, decedent Vincent Anthony Geritano (hereinafter referred to
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`as “Mr. Geritano” or “decedent”) instituted this asbestos product—1iability action alleging that he
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`developed mesothelioma as a result of his exposure to asbestos-containing products
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`manufactured, supplied or distributed by the defendants. Following Mr. Geritano’s death on
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`February 16, 2015, his wife, plaintiff Sandra Geritano (“Mrs. Geritano”), filed a First Amended
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`Complaint as executrix of the Mr. Geritano’s estate adding a claim for wrongful death.
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`At the time the trial commenced, there were seven remaining defendants, Burnham,
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`Crown Boiler Co., ECR International, Inc., Kohler Co., Columbia Boiler Company of Pottstown,
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`Crane Co. and Sid Harvey Industries, Inc. During the course of the trial, plaintiff settled the
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`case with Columbia Boiler Company of Pottstown, ECR International, Inc., Crane Co., Sid
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`Harvey Industries, Inc. and Kohler and the case went to verdict against Crown Boiler C0. and
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`Burnham only. The jury rendered a verdict of no liability against Crovxm Boiler Co. and in favor
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`of plaintiff and against Bumham in the amount of $6.25 million for past pain and suffering. The
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`jury also allocated one percent liability to Sid Harvey Industries, Inc. and nine percent liability to
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`each of the following entities: Burnham, American Radiator Co., Columbia Boiler Company of
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`Pottstown, Compudyne Corporation, individually and as successor to York-Shipley, Inc., Crane
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`Co., ECR International, Inc. f/k/a Dunkirk Radiator Corporation and as successor by merger to
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`the Utica Companies, Inc., Oakfabco, Inc., individually and as successor-in-interest to Kewanee
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`Boiler Corporation, Kohler Co., Peerless Industries, Inc., Weil-McLain, a division of Marley-
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`Wylain Company and Zum Industries, LLC, individually and as successor-in-interest to Eric
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`City Iron Works. Additionally, the jury found that Burnham did not act with reckless disregard
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`for the safety of Mr. Geritano.
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`Plaintiff testified at his deposition regarding his exposure to Burnham boilers. He
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`testified that he was exposed to asbestos from various products and equipment while he worked
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`as a mechanic’s apprentice and mechanic for Kleen Heat Oil Company, ABC Fuel and Bayside
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`Fuel Company from June 1962 to June 1965. Specifically, Mr. Geritano testified that when he
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`worked as an apprentice mechanic for Kleen Heat Oil Company, he was exposed to asbestos
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`from removing the jackets of boilers, breaking down the chambers and cleaning up the debris.
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`He also claimed asbestos exposure from breaking off the inspection plates with a screwdriver
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`and re—patching the area by mixing a powder of asbestos and applying it with a trowel. Mr.
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`Geritano testified that when he worked at ABC Fuel he was exposed to asbestos while servicing
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`residential oil burners and inspecting boilers. He claimed asbestos exposure from opening the
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`inspection plates and rescaling them with powdered asbestos. Mr. Geritano further testified that
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`when he worked at Bayside Fuel Company, he was exposed to asbestos while removing
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`residential and commercial boilers. Specifically, he claimed asbestos exposure from removing
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`and building chambers, checking inspection plates, rescaling the doors and cleaning up after his
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`work. During his deposition, Mr. Geritano identified Burnham as well as ARCO, Weil-McLain,
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`Peerless, Kewanee, Columbia, Kohler, York Shipley, Crown, Crane, Utica, Cleaver Brooks and
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`Eric as the manufacturers of the boilers he encountered during his career. Mr. Geritano also
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`testified that while he was working with such boilers, he saw “lots of visible dust.”
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`Burnham makes a number of arguments in support of its motion.
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`It argues that (1) it is
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`entitled to a directed verdict or judgment notwithstanding the verdict because plaintiffs expert
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`opinion was insufficient as a matter of law to establish specific causation; (2) the jury verdict
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`should be set aside, a new trial should be ordered, or in the alternative, the jury verdict should be
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`remitted because plaintiffs counsel made improper and misleading statements during his
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`summation concerning the jury’s formulation of damages award; (3) the jury verdict should be
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`set aside, a new trial should be ordered, or in the alternative, the jury verdict should be remitted
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`because the jury verdict deviated materially from what is reasonable; and (4) the jury verdict
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`should be set aside or a new trial should be ordered because Burnham was denied its right to a
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`fair trial based on this court’s consolidation of this case for trial with two other cases.
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`Pursuant to CPLR § 4404(a), “upon a motion of any party or on its own initiative, a court
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`may set aside a verdict .
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`.
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`. and direct that judgment be entered in favor of a party entitled to
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`judgment as a matter of law or it may order a new trial .
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`.
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`. where the verdict is contrary to the
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`weight of the evidence, [or] in the interest ofjustice.” The standard for setting aside a verdict is
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`very high. The Court of Appeals has held that a verdict may be set aside only when “there is
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`simply no valid line of reasoning and permissible inferences” which could have led to the
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`conclusion reached by the jury. Cohen v. Hallmark Cards, Inc. , 45 N.¥.2d 493, 499 (1978).
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`The First Department has held that a verdict “will not be set aside unless the preponderance of
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`the evidence is so great that the jury could not have reached its verdict upon any fair
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`interpretation of the evidence.” Pavlou v. City ofNew York, 21 A.D.3d 74, 76 (15‘ Dept 2005).
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`Moreover, the evidence must be construed in the light most favorable to the party that prevailed
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`at trial. See Motichka v. Cody, 279 A.D.2d 310 (1“ Dept 2001). Where the case presents
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`conflicting expert testimony, “[t]he weight to be accorded the conflicting testimony of experts is
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`'a matter peculiarly within the province of the jury."' Torricelli v. Pisacano, 9 A.D.3d 291, 293
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`(1“ Dept 2004) (citations omitted); see also Cholewinski v. Wisnicki, 21 A.D.3d 791 (1“ Dept
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`2005).
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`The court first turns to Burnham’s motion for a directed verdict or judgment
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`notwithstanding the verdict on the ground that plaintiffs exnert oninion was insufficient as a
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`matter of law to establish specific causation as required under the holding in Parker v. Mobil Oil
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`Carp., 7 N.Y.3d 434 (2006).
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`In Parker, the court held that it “is well established that an opinion
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`on causation should set forth a plaintiffs exposure to a toxin, that the toxin is capable of causing
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`the 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.)."
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`Id at 448. However, “it is not always
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`necessary for a plaintiff to quantify exposure levels precisely or use the dose-response
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`relationship, provided that whatever methods an expert uses to establish causation are generally
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`accepted in the scientific community.” Id.
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`In Parker, the court rejected the plaintiffs experts’
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`testimony that exposure to gasoline caused plaintiffs AML as “[p]laintiffs experts were unable
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`to identify a single epidemiologic study finding an increased risk of AML a s a result of exposure
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`to gasoline.” Id. at 450.
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`In Cornell v. 360 W. 51st Realty LLC, 22 N.Y. 762 (2014), the Court of
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`Appeals again addressed the issue of what showing must be made to establish specific causation
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`in a toxic tort case, explaining 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 that are known to
`cause the kind of harm that the plaintiff claims to have suffered.
`Id.
`at 784.
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`In Lustenring v. AC&S, Inc., 13 A.D.3d 69 (15‘ Dept 2004), lv. denied, 4 N.Y.3d 708
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`(2005), an asbestos case, the First Department addressed what showing must be made to
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`establish specific causation in an asbestos case. According to the court, the evidence showed
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`that nlaintiffs wnrked all dav for long nerinds in clouds ofdust which was raised bv the
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`manipulation and crushing of defendant's packing and gaskets, which were made with asbestos.
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`The court found that "[v]alid expert testimony indicated that such dust, raised from asbestos
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`products and not just from industrial air in general, necessarily contains enough asbestos to cause
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`mesothelioma.”
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`Id. at 70.
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`In the present case, the court finds that the expert testimony presented in this case was
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`sufficient to satisfy the standards enunciated by the Court of Appeals in Parker and Cornell.
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`Initially, the trial and appellate courts in New York which have addressed the issue, both before
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`and after Parker have been decided, have consistently held that the presence of visible dust from
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`an asbestos-containing product establishes a sufficient foundation for an expert to conclude that
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`the use of such product was a substantial factor in causing mesothelioma and Burnham has not
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`cited to any New York cases where a court has not upheld a finding of specific causation where
`visible dust was present. See, e.g., Lustenring; Perm v. Amchem, 85 A.:D.3d 475, 476 (l“ Dept
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`2010)(“On the issue of causation, sufficient evidence was provided by [plaintiffs] testimony that
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`visible dust emanated while working with the dental liners and by his expert's testimony that
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`such dust must have contained enough asbestos to cause his mesotheliorha”); Matter ofNew York
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`Asbestos Litig, 28 A.D.3d 255 (IS‘ Dept 2006)(evidence fairly interpreted, permitted liability
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`verdicts reached by the jury where the “evidence demonstrated that both plaintiffs were regularly
`exposed to dust from working with defendant's gaskets and packing, which were made of
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`asbestos. The experts indicated that such dust from asbestos containing products contained
`enough asbestos to cause mesothelioma”); Berger v. Achem Products, Misc. 3d 335, 346 (Sup
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`Ct NY Co 2006)(“It has long been established that mesothelioma caused by asbestos exposure is
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`frequently not dose related and relatively small numbers of fiber that are inhaled may remain in
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`the lungs for long periods and cause mesothelioma“). Cf Arthur Juni v. A.O. Smith Water
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`Product, Index No. 190315/2012 (Sup Ct NY Co20l5)(evidence offered insufficient to prove
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`that dust to which plaintiff was exposed contained any asbestos).
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`Moreover, the court finds that the expert testimony of Edwin Holstein, M.D. was
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`sufficient to present the issue of specific causation to the jury to be resolved.
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`Initially, he
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`testified that there is no safe level of exposure to asbestos in regard to causing mesothelioma as
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`there are people who develop mesothelioma after being exposed to extraordinarily low
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`concentrations of asbestos. Tr. at 370. He further identified specific scientific literature,
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`including one epidemiological study, supporting his low dose opinion. Tr. at 370. Dr. Holstein
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`further testified that the critical inquiry for specific causation is whether asbestos “can become
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`liberated into the air as dust so that people can breathe it and that’s where it becomes important
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`as to how people are working with it.” Tr. at 296. He further testified that exposure to the
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`refractory mortar in a boiler during removal would expose the worker to clouds of asbestos-laden
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`dust and visible dust seen during boiler tear out is “guaranteed” to contain asbestos. Tr. at 503-
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`04, 508-09, 462. He testified that sweeping asbestos-laden dust is “a fantastic way to get lots of
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`dust in the air” and that dust release measurements from such sweeping activities have been
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`reported in the scientific literature to range as high as 15 f/cc and noted that such huge numbers
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`would be a “terrific” exposure. Tr. at 317-18. Thus, Dr. Holstein concluded that Mr.
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`Geritano’s exposure to asbestos from servicing and removing Bumham boilers was a substantial
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`contributing factor to his mesothelioma. He based his opinion on a collection of scientific and
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`medical research literature, including articles discussing how much asbestos gets released into
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`the air to be breathed by a person doing the kind of work performed by Mr. Geritano; scientific
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`studies addressing the issue of how much exposure to asbestos will cause mesothelioma; and Mr.
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`Geritano’s description of “lots of visible dust” during the performance of his work “particularly
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`when he was cleaning out chambers in the combustion chamber when he was doing service
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`work” and the dust he saw “when he [was] demolishing boilers for the purpose of removing
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`them.” Tr. at 406-7. Dr. Holstein explained as follows:
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`So when you put together the exposure information, that is to say
`how much asbestos goes into the air when you do work of this sort,
`with the other literature which is how much asbestos exposure will
`cause how many cases of mesothelioma, when you put that together
`you arrive at the conclusions I’ve stated; namely, that Mr. Geritano
`had quite substantial exposures to asbestos.
`They weren’t
`borderline, they weren’t gray area, they weren’t maybe yes, maybe
`no, these were very substantial exposures. And that has allowed
`me to reach the conclusion I just stated. Tr. at 406.
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`The court finds that the methods used by Dr. Holstein at trial to establish that plaintiff
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`was exposed to sufficient levels of asbestos from Burnham‘s products for those products to have
`'l
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`been a substantial contributing factor in causing plaintiffs mesothelioma are generally accepted
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`in the scientific community. Based on the testimony presented at trial, Dr. Holstein sufficiently
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`established that it is generally accepted in the scientific community that there is no safe_ level of
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`exposure to asbestos, that even a low dose exposure to asbestos can cause mesothelioma and that
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`plaintiff was exposed to asbestos from Burnham boilers based on the release of visible dust when
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`he serviced the boilers and when he demolished the boilers for purposes of removing them. As
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`the Court of Appeals made clear in Parker, “it is not always necessary for a plaintiff to quantify
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`exposure levels precisely or use the dose-response relationship, provided that whatever methods
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`an expert uses to establish causation are generally accepted in the scientific community." Id.
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`The court next turns to that portion of Burnham’s motion to set aside the jury verdict and
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`for a new trial, or in the alternative, to remit the jury verdict on the ground that plaintiffs counsel
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`made improper and misleading statements during his summation concerning the jury’s
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`formulation of damages award. A new trial should only be granted based on comments made by
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`counsel where such comments “improperly affected the verdict.” Pareja v. City ofNew York, 49
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`A.D.3d 470, 470 (1“ Dept 2008). Comments made by counsel during the trial will be found to
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`improperly affect the verdict if they are so fundamentally erroneous as to “cause[] a gross
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`injustice,” Wilson v. City ofNew York, 65 A.D.3d 906, 908 (1" Dept 2009), or they “permeate[]
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`the trial and create[] a climate of hostility that effectively destroy[s] the [hdverse party’s] ability
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`to obtain a fair trial,” DiMichel v. S. Buflalo R. C0,, 80 N.Y.2d 184, 199 (1992). See also Penn
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`v. Amchern Prods, 85 A.D.3d 475 (1“ Dept 201 1)(holding that the counsel’s comments must be
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`so egregious as to deprive the adverse party of a fair trial.) Generally, isolated comments, a
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`comment to which an objection was sustained, comments cured by the court’s instruction or
`comments that posed no danger ofleading to a verdict that was unsupported by the evidence do
`not present circumstances sufficient to warrant the granting of a new trial. See, e. g., Wilson, 65
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`A.D.3d at 908 (no danger that jury was influenced by comments); Avila Robani Energy Inc.,
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`12 A.D.3d 223 (15‘ Dept 2004)(comment isolated and cured by instruction); Calzado v. New York
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`City Transit Auth., 304 A.D.2d 385 (1“ Dept 2003)(isolated comment); Lambert v. Salto, 216
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`A.D.2d 210 (15‘ Dept 1995)(objection to comment sustained). Moreover, courts have found that
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`where the comments made by counsel are brief and are made after a lengthy trial with. numerous
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`witnesses and evidence, they are unlikely to affect the outcome of the trial. See Pareja, 49
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`A.D.3d at 470 (“these remarks were brief and, after a 12-day trial with numerous witnesses, were
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`unlikely to have affected the outcome”); see also Wilson, 65 A.D.3d at 908 (“after a seven-week
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`trial with numerous witnesses and exhibits, thousands of pages of testimony and lengthy closing
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`statements, these remarks were unlikely to have affected the outcome. ...”)
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`In the present case, Bumharn is not entitled to a new trial or a remittitur of the verdict as
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`the court finds that the comments made by plaintiffs counsel during his closing remarks did not
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`improperly affect the verdict as they were not so erroneous that they caused a gross injustice or
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`such that they created a climate of hostility that deprived Burnharn of a fair trial. The comments
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`at issue in the instant motion are those that were made during plaintiffs counsel’s summation
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`regarding the jury’s calculation of damages. Specifically, plaintiffs counsel stated to the jury as
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`follows:
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`We you know as a society we place values on things. There was a
`— somebody paid $33 million for a 1936 Mercedes the other day.
`Just people have signing bonuses, people have contracts to play
`basketball, play baseball like Mr. Geritano did. There is value that
`is placed on things.
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`There is value on this. But this exercise of trying to evaluate what
`the proper total compensation is for Mr. Geritano is not easy. The
`— whatever you do, whatever you decide is the total compensation
`that is appropriate in terms of these percentages, all the things that
`you do, the Judge will then take that and do the judge thing and
`decide how that gets divvied up, but your job is to — if you get this
`far, of course, to decide what the total compensation is for Mr.
`Geritano that can roughly capture what he has gone through.
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`There is no — the only thing I could say is I think [defendant’s
`counsel] talked about it month by month, which I think is not an
`appropriate way to do this, but his company has been around for a
`160 years.
`If you were to take his own kind of measure of things
`and to assign $10,000 for every year that that company has been
`around and done nothing to protect people.
`"
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`At that point in plaintiffs counsel’s summation, Bumham’s counsel objected on the ground that
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`plaintiffs counsel’s statement regarding the calculation of damages was'i.“inappropriate.” This
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`court sustained the objection and instructed the jury to “disregard that last bit.” Plaintiffs
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`counsel then continued, stating that “[s]ixteen — a 160 years if you were to decide that, $16
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`million was the appropriate amount that would be fine. That ties it to the amount of years that
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`they spent in business without doing anything to protect people.
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`Bumham’s counsel then
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`objected again, which the court sustained. Bumham’s counsel then moved for a mistrial based
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`on plaintiffs counsel’s statement that the Judge would “divv[y]” up the damages and “do the
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`judge thing” after the jury determines an award for pain and suffering on the ground that such
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`comments incorrectly conveyed to the jury that whatever amount it awarded to plaintiff for pain
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`and suffering would not ultimately be the amount plaintiffs estate would receive. This court
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`denied the request for a mistrial and informed the jury that “[i]n arriving at the total amount, you
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`must not consider the percentages of fault but must simply report the total amount of plaintiffs
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`damages.” Bumham’s counsel also asserted that plaintiffs counsel’s comment that the jury
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`should award plaintiff $16 million based on the number of years Bumham has been in business
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`was improper as the damages in this case are limited solely to compensating plaintiff for his pain
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`and suffering and not to punish Bumham for the way in which it may have treated other
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`individuals. Regarding that statement, this court gave the following instruction to the jury:
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`In determining the amount of damages you should award Plaintiff,
`if you find :1 Defendant to be liable, the only consideration should
`be the amount of pain and suffering Plaintiff incurred until the date
`of his death and‘ should not be based on the length of years Bumham
`has been in business or any other factors.
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`In the present case, the court finds that the comments at issue made by plaintiffs counsel
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`during his summation do not entitle Bumham to a new trial as such comments were isolated,
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`cured by this court’s instructions and the objections to same were sustained.
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`Initially, in the
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`event that the jury interpreted plaintiffs counsel’s comment that the court would “divv[y]” up
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`the damages and “do the judge thing” after the jury determined an award for pain and suffering
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`to mean that it should consider apportionment when fixing damages, this court took clear
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`curative action by instructing the jury that it must only report the total amount of plaintiffs
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`damages and not consider the percentages of fault. Further, it is well-settled that the jury is
`presumed to have followed this instruction. See 1515 Summer St. Corp! v. Parikh, 13 A.D.3d
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`305, 308 (l5‘ Dept 2004)(ho1ding that to the extent counsel’s comment during summation was
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`improper, “the trial court gave sufficient curative instructions that the jury presumably
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`followed”); see also People v. Morris, 21 N.Y.3d 588, 598 (2013)(it is presumed that a jury will
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`follow a court’s limiting instructions). Additionally, with regard to plaintiffs counsel’s
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`comment that the jury should calculate the damages based on the number of years Burnham has
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`been in business, the court sustained Burnham’s counsel’s objection to that isolated remark,
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`instructed the jury to disregard it and immediately provided a curative instruction that the only
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`factors the jury should take into consideration when calculating plaintiff’ s damages are pain and
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`suffering and not the number of years Burnham has been in business or any other factor, which
`sufficiently cured any impropriety stemming from plaintiffs counsel’s comment. Moreover,
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`there is no evidence that such comment improperly affected the jury’s verdict as the jury
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`awarded plaintiff $6.25 million for past pain and suffering, not $16 million, thus rejecting
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`plaintiffs counsel’s suggested damages calculation based on the numberof years Burnham has
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`been in business. Further, the comments at issue made by plaintiffs counsel during his
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`summation do not entitle Burnham to a new trial as they were brief and were made after a
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`month—long trial with numerous witnesses and evidence and defendant has not presented any
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`evidence that such comments affected the outcome of the trial.
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`The court next turns to Burnham’s motion to set aside the jury verdict and for a new trial,
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`or in the alternative, remittitur of the jury verdict because the jury verdict of $6.25 million for
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`past pain and suffering deviated materially from what is reasonable. Pursuant to CPLR §
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`5501(c), an award will be considered excessive “if it deviates materially from what would be '
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`reasonable compensation."
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`In order to determine whether the award deviates materially from
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`what would be reasonable compensation, the court must compare the instant case with analogous
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`cases with awards that have been previously upheld. See Donlon v. City ofNew York, 284
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`A.D.2d 13, 18 ( 15‘ Dept 2001). The most recent decisions from the First Department addressing
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`the issue of the amount of damages to be awarded for past pain and suffering in a mesothelioma
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`case are Hackshaw v. ABB, Inc., et al., 2016 N.Y. Slip Op. 06558 (1“ Dept 2016) and Peraica v.
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`A.O. Smith Water Products Co., et al., 2016 N.Y. Slip Op. 06537 (1“ Dept 2016).
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`In Hackshaw,
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`the First Department held that a reduced jury award of $6 million for past pain and suffering
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`deviated materially from what is reasonable compensation and lowered the award to $3 million.
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`In Peraica, the First Department held that a reduced jury award of $9.9 million for past pain and
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`suffering deviated materially from what is reasonable compensation and lowered the award to
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`$4.25 million.
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`In the present case, based on Hackshaw and Peraica, the court finds that the jury award
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`of $6.25 million for past pain and suffering deviates materially from what would be reasonable
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`compensation. The record establishes that plaintiff started experiencing symptoms in May of
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`2014, he was diagnosed with mesothelioma in August of 2014 and he passed away in February
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`of 201 5. During that period, he experienced severe pain; shortness of breath; great difficulty
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`breathing; difficulty sleeping; multiple thoracenteses; and debilitating chemotherapy treatments.
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`In Hackshaw, the plaintiff suffered similar symptoms over a similar period of time and the First
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`Department lowered the past pain and suffering award to $3 million. Thus, this court finds that
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`pursuant to CPLR 5501(0), the award for past pain and suffering is vacated and a new trial
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`ordered on the issue of damages for past pain and suffering unless plaintiff, within thirty days of
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`service of a copy of this decision and order with notice of entry thereof, stipulates to reduce the
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`award of damages for past pain and suffering to $3 million.
`
`Finally, the court turns to Burnham’s motion for an Order setting aside the jury verdict or
`
`directing a new trial on the ground that Burnham was denied its right to a fair trial based on this
`
`court’s consolidation of this case for trial with two other cases. The court declines to set aside
`
`the verdict or direct a new trial on such basis as this court has already provided the reasons why
`
`it found it appropriate to consolidate these particular cases in this court's initial decision allowing
`
`consolidation.
`
`Accordingly, it is hereby
`
`ORDERED that Burnham’s motion is granted only to the extent of vacating the award of
`
`past pain and suffering and ordering a new trial on this issue unless plaintiff, within thirty days of
`
`service of a copy of this decision and order with notice of entry thereof, stipulates to reduce the
`
`amount of past pain and suffering to $3 million. This constitutes the decision and order of the
`
`court.
`
`Dated: \Ol lq l
`
`Enter:
`
`Q KJ.S.C.
`
`HON. CYNTHIA S. KERN
`J.S.C.
`
`14
`
`15 of 15
`15 of 15
`
`

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