throbber
FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`Exhibit B
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`.
`
`SUPREME
`COUNTY
`
`OF THE STATE OF NEW YORK
`COURT
`OF NEW YORIC - PART 57
`
`PRESENT:
`
`Hon. Marcy S. Friedman,
`
`JSC
`
`IN RE· NEW YORK ASBESTOS
`
`LlTIOATION,
`
`JOHN MATTESON,
`JOHN LUSTENRING,
`
`Index No. 105240/01
`105155/01
`Index.No.
`
`.
`
`.
`
`x
`
`x
`
`DECISION/ORDP.R
`
`In these asbestoe cases, defendant
`
`The Olsonite Company
`
`(*‰nite")
`
`moves
`
`for
`
`judgment
`
`notwithstanding
`
`the yerdict.in
`
`the Matteson
`
`case, and defendant
`
`John Crane,
`
`Inc.
`
`(%hn
`
`Crane") moves
`
`for
`
`the same relief
`
`in the Matteman and Lusteering
`
`cases. Defendants
`
`argue that
`
`the evidence
`
`is insufHcient
`
`to support
`
`the verdicts
`
`in plaintiffs'
`
`favor;
`
`that
`
`the verdicts
`
`should
`
`be set aside based on errors in evidentiaty
`
`rulings
`
`and juror misconduct;
`
`that
`
`the verdicts
`
`are internally
`
`inconsistent;
`
`and,
`
`in the attemative,
`
`that
`
`thedamage
`
`awards are excessive.
`
`Okonite
`
`contends
`
`97
`
`toge
`
`as to
`
`gan
`
`of pl
`
`cont
`
`the c
`
`the r
`
`was
`
`Deft
`
`ream
`
`Defendant
`
`that
`
`the evidence was insufficient
`
`to support
`
`the jurfs
`
`findings
`
`that plaintiff
`
`Matteson was exposed to its product,
`
`and.that
`
`its pmduct
`
`contained
`
`asbestos.
`
`It
`
`is well
`
`settled that a court may not c;mdude
`
`as a inatter
`
`of
`
`law that
`
`the verdict
`
`is not
`
`supported
`
`by sufficient
`
`evidence
`
`unless "there is simply
`
`no valid line ofteasoning
`
`and
`
`perraissibh;
`
`inferences
`
`which
`
`could possibly
`
`lead rational
`
`[persons]
`
`to the conclusion
`
`reached
`
`by
`
`the jury on the basis of
`
`the evidence
`
`presented
`
`at trial."
`
`(Cohen v Halhnark
`
`Cards,
`
`Inc.. 45 NY2d
`
`493, 499 [1978].)
`
`In contrast,
`
`a detm=.ination
`
`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
`
`interpatation
`
`of
`
`the
`
`evidence.''
`
`(Delgado
`
`v Board of Educ., 65 AD2d
`
`547[2d
`
`Dept 1978], a@ an o_gn 48 NY2d
`
`643
`
`then
`
`no e
`
`or th
`
`side:
`
`jury
`
`nece
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`p979].)
`
`Under
`
`either standard, Mr. Matteson's
`
`testimony
`
`as to his use of Okonite's
`
`products,
`
`together with circumstantial
`
`evidence,
`
`ine!"ding
`
`testimony
`
`ofplaintin's
`
`expert, Richard Horan,
`
`as to the composition
`
`of
`
`the products,
`
`was sufficient
`
`to raise a jmy
`
`issue as to whether Mr.
`
`Matteson was exposed
`
`to ashestos-containing
`
`cable manufactured
`
`by Okonite.
`
`Both Okonite
`
`and John Crane further
`
`argoe that
`
`the cost
`
`erred in ad:nEng
`
`the testimony
`
`plaintiffs'
`
`of
`
`expert, Dr. J=qucline
`
`Moline,
`
`that visible
`
`dust
`
`from asbestos-containing
`
`products
`
`contains
`
`fibers in a sufficient
`
`quantity
`
`to be hazardous.
`
`This argurnent
`
`in effect seeks to reargue
`
`the comt's
`
`trial
`
`ruling
`
`on
`
`defendants'
`
`request
`
`for a Frye bearing.
`
`The court adheres to that
`
`ruling,
`
`the reasons for which were fully
`
`set
`
`forth on therecord.
`
`The court also finds that a *~=d-d-
`
`was laid for
`
`the testimony.
`
`(See Carnolo
`
`v John Crane.
`
`Inc.. 226 F3d 46 [2d Cir 2000].)
`
`.
`
`Defendants
`
`also challenge
`
`several other significant
`
`rulings.
`
`evidentiary
`
`and trial
`
`Defendants
`
`do not
`
`raise new legal arguments,
`
`and the contt adheres to its trial ndings,
`
`the
`
`reasons for which were generally
`
`set
`
`forth at length on the trial
`
`record.
`
`D&...d-.es'
`
`further
`
`claim ofjuror
`
`misconduct
`
`is without
`
`support
`
`in the meopl.
`
`Akhough
`
`there were personal
`
`disagreements
`
`anong
`
`the jurors, which
`
`are documented
`
`in the record,
`
`thereis
`
`no evidence
`
`that
`
`the jurers
`
`took
`
`sides.on
`
`any of
`
`the issues in the. cases pñor
`
`to the deliberations,
`
`or that any personality
`
`conflicts
`
`affected
`
`the jurors'
`
`ability
`
`to debberate
`
`fully and fairly
`
`to both
`
`sides.
`
`.
`
`Okonite
`
`does persuasively
`
`argue, however,
`
`that
`
`the evidence
`
`is insufficient
`
`to support
`
`the
`
`jury's
`
`finding
`
`that Okonite
`
`acted recklessly.
`
`Under
`
`settled authority,
`
`the level of conduct
`
`necessary
`
`to establish
`
`recklessness must satisfy
`
`"a gross negligence
`
`standard,
`
`requiring
`
`that
`
`the
`
`Page -2-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`actor has inh4:::"y
`
`done an act of an unreasonable
`
`character
`
`in disregaal
`
`of a known
`
`or
`
`obvious
`
`risk that was so great as to make it highlyprobable
`
`that harm would
`
`follow and has done
`
`so with canacinue
`
`indifference
`
`to the
`
`outcome."
`
`(Matter
`
`of New York City Ashestos
`
`Litigation
`
`t
`
`TMaltese
`
`v Westinghouse
`
`Blee. Corp4
`
`89 NY2d
`
`955, 956[1997][intemal
`
`citations
`
`and quotation
`
`marks
`
`omitted].)
`
`While
`
`there wgs evidence
`
`from which
`
`the jmy
`
`pould rationally
`
`have coacInded
`
`that
`
`Okonite
`
`had or should have had knowledge
`
`of
`
`the 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 knowiadge
`
`that
`
`"workers
`
`such [as Mr. Mattesen]
`
`were at risk at any time it
`
`could have wamed
`
`thern." GL at 957.) Moreover,
`
`contrary
`
`to plaintiff's
`
`contention,
`
`Okonite's
`
`membership
`
`in the Association
`
`of American Railroads
`
`is not a sufHaient
`
`basis fbr a finding-of
`
`knowledge
`
`offhe
`
`recklessness,
`
`because it bears on Okonite's
`
`general
`
`dangers of asbestos, and not
`
`on its knowledge
`
`of dangers
`
`to specific wodress
`
`in plaintiff's
`
`position.
`
`The jury's
`
`fmding
`
`as to
`
`Okonite's
`
`recklessness will
`
`accordingly
`
`be set aside.
`
`Okonite
`
`and John Crane next argue that a new 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 inter-satarf
`
`finding
`
`that
`
`the plaintiff
`
`was exposed
`
`to
`
`.asbestos-containing
`
`products
`
`of companies
`
`other
`
`than moving
`
`defendants.
`
`Specifically,
`
`in
`
`Matteson,
`
`the jury answered
`
`interrogatory
`
`7 finding
`
`that Matteson was exposed to the asbeston-
`
`containing
`
`products
`
`6f 23 other companies, while
`
`in Lusteering,
`
`the jury
`
`enswered
`
`intermgatory
`
`6 finding
`
`that he was exposed
`
`fo the ashestosentaining
`
`pmducts
`
`of 12 other cornpanies.
`
`In cach
`
`case thejmy
`
`then found
`
`these other companies were not negligent
`
`in manufacturing
`
`or selling
`
`Page ,3-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`asbestosmontaining
`
`products without
`
`adequate warning
`
`(interrogatory
`
`8 in Matteson,
`
`and
`
`iracragatory
`
`7 in Lustenring).
`
`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
`
`Crane (45%)
`
`and Okonite
`
`(55%),
`
`the sole defendants
`
`found liable in Matteson
`
`(see interrogatory
`
`10); and John Crane
`
`(100%),
`
`the sole defendantfound
`
`liable in Lustenring
`
`(see interrogatory
`
`9).
`
`Defendants
`
`argue that
`
`the fmding
`
`that plaintiffs
`
`were exposed to other companies'
`
`products
`
`is inconsistent
`
`with the finding
`
`that
`
`these other companies were not negligent.
`
`Perhaps
`
`recognizing
`
`that
`
`the fmdings
`
`are not
`
`inconsistent
`
`on their
`
`face (exposure
`
`obviously
`
`does not
`
`.
`
`mandate
`
`a fmding
`
`of negligence),
`
`defendants
`
`also argue thatthe
`
`jury's
`
`finding
`
`that
`
`the other
`
`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 imowledge
`
`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
`
`tim other companies
`
`knew or
`
`.
`
`should have known
`
`of
`
`the dangers
`
`fmm their asbestos-containing
`
`products,
`
`but also they failed to
`
`watu of such dangers.
`
`(Sgg Carnolo
`
`v A C & S, Ine,, 1999 WL 147740 [SD NY 1999], aEd in
`
`ImrL vacated 4 rernanded
`
`ja agr.1 pn p_tigr grounds 226 F3d 46 [2d Cir 2000]; George v Celotex
`
`Coro.. 914 P2d 26, 28 [2d Cir 1990],)
`
`While
`
`tim 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 ostablishing
`
`that
`
`the other cornpanies
`
`failed to w±rn. Defendants
`
`rely on
`
`Plaintiffs'
`
`testimony
`
`that
`
`they never saw wamings
`
`on any ashestos-containing
`
`products
`
`to which
`
`Page -4-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`A40
`
`they were exposed.
`
`However,
`
`such testimony
`
`by plain6ffs
`
`"did not compel
`
`the jury
`
`to a--e!=êe
`
`that
`
`there were,
`
`in fact, no such
`
`wamings,"
`
`(Zalinka
`
`v Owens-CaninpJiberglass
`
`Com.. 221
`
`AD2d
`
`830, 832 [3d Dept 1995].) Marcover,
`
`darendants
`
`do not cite, and the conet does not:ecall,
`
`any sjiecific
`
`references
`
`in the trial
`
`reconi
`
`to any other company's
`
`lack of warnings.
`
`Under
`
`these
`
`circumstances,
`
`the comt
`
`cannot
`
`find thatdarendants
`
`austainerl
`
`their baden
`
`of proving
`
`that
`
`the
`
`other companies were negligent
`
`in not giving warnings.
`
`LSgggi4)
`
`Finally,
`
`dafandanta
`
`argue that
`
`the damages were excessive.
`
`Under New Yak
`
`law, an
`
`awed
`
`in excessive
`
`"if
`
`it deviater mannially
`
`fmm what would be reasonable
`
`compensation."
`
`(CPLR 5501[c].)
`
`In Weigl
`
`v Ottincy Specialties Cn.
`
`(190 Misc 2d 1[2001)),
`
`this court
`
`considered
`
`the "deviates materially"
`
`standard at length.
`
`As held in Egigh
`
`and hes1ardenlated
`
`in
`
`federal
`
`the comt must balance respect
`
`for a jmy's
`
`award,
`
`.
`
`asbestos cases applying New York law,
`
`recognizing
`
`that a court has no greater expertiss
`
`than ajury
`
`in =*••ing
`
`the value of pain and
`
`suffering,
`
`against
`
`the cent's
`
`obligation
`
`and ability,
`
`given its access to infoonation
`
`about other
`
`jury
`
`awards,
`
`to ensure that similarly
`
`situated-litigants
`
`receive similar
`
`awards.
`
`(190 Misc
`
`2d at 3-
`
`4; Consorti
`
`v Armstrona World
`
`Indus..
`
`Inc,. 72 F3d 1003, 1009 {2d Cir 1995][Consorti
`
`III,
`
`vacated on aggg arounds Consorti
`
`v OwensaComing
`
`Fibendas Corp..518
`
`US 1031 [1996].)
`
`Given this concern
`
`for predictability,
`
`itis not surprising
`
`that New York
`
`costs
`
`applying
`
`the deviates materially
`
`standard
`
`have "lookedio
`
`awards approved
`
`in similar
`
`cases."
`
`(Sgg
`
`Gasperini
`
`v Center
`
`for Hm::=:ities.
`
`Inc.. 518 US. 415, 425 [1996]; Consorti H. 72 F3d atTD12;
`
`Weial.
`
`190 Misc2d
`
`at 4-5 [and authorities
`
`cited therein].)
`
`Indeed,
`
`"case comparison
`
`analysis"
`
`is
`
`mandated
`
`by CPLR 5501(c).
`
`(Donlon
`
`v City of New York. 284 AD2d
`
`13 [1" Dept 2001).)
`
`However,
`
`the courts have repeatedly
`
`recognized
`
`the difficulties
`
`in ccep-:i::g
`
`injuries
`
`in dif Terent
`
`.
`
`Page -5-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`A41
`
`cases, given the uniq=ess
`
`of each experience
`
`ofan0cring
`
`and the relative
`
`paucity of
`
`inicññation
`
`in remittitur
`
`deter=i=tions
`
`shout
`
`the injuries
`
`involved.
`
`(See Matter of Joint Eastern
`
`& Southern Dist. Asbestos
`
`Litigation
`
`[Consorti
`
`y Añasticñg World indus..
`
`Inc., 9 F Supp 2d
`
`307, 311 [applyingNew
`
`York
`
`law]; Sp v Wing Tat Realty,Inc..
`
`259 AD2d 373 [18 Dept 1999];
`
`Senko
`
`v Funda.53
`
`AD2d
`
`638 [2d Dept 1976].)
`
`Thus,
`
`the courts have emphasized
`
`that each
`
`case rnust be evaluated
`
`on its own facts, and that "considerable
`
`deference"
`
`should be accorded
`
`to
`
`.
`
`the jmy's
`
`award:-
`
`(Weiel
`
`190 Misc
`
`2d at 4-5 {and New York
`
`case& cited therein]; Consorti.
`
`9 F
`
`Supp 2d at 311, 314; Caruolo.
`
`1999 WL 147740 at 17 {applying New Yodt
`
`law),)
`
`As recently
`
`amplain¾
`
`'¶c]ase comparison
`
`cannot be expected to depend upap perfect
`
`thctual
`
`identity. Mere
`
`.often, analogons
`
`cases will
`
`be usefh! as benmb-h."
`
`(Danlan.
`
`284 AD2d at 16.) Comis
`
`undertaking
`
`case comparison
`
`analysis
`
`have also noted that
`
`"a comt's
`
`understanding
`
`of what
`
`is
`
`for
`
`reasonable
`
`compensation
`
`must notremain
`
`fixed in time, but
`
`Isther must
`
`retain the capacity
`
`change based onits
`
`own experience,
`
`the experience
`
`of others, and the deterrain•*lana
`
`made in
`
`paticular
`
`cases."
`
`(Consorti.
`
`9 F Supp 2d st314.
`
`Egg Mathg of NewYork
`
`CitvAsbestos
`
`Litig.ation
`
`IFallon
`
`v Westinghouse
`
`FJee- Com.1. Sup Ct, NY County, Freedman,
`
`J., Feb. 20,
`
`1996, Transcript
`
`of Proceedings,
`
`Ex. D to P.'s Aff.In
`
`Opp., quoted in Consceti9
`
`F Supp 2d at
`
`.
`
`315-316.)
`
`In comparing
`
`vadicts
`
`in asbestos
`
`cases,
`
`the comte have finther
`
`noted that
`
`the various
`
`methods
`
`ernployed
`
`for assessing
`
`a reasonable
`
`damage anunmt
`
`include
`
`the application
`
`of (1) a
`
`Percentage method,
`
`catailing
`
`a percentage
`
`reduction
`
`based on the percentage
`
`used to reditae
`
`verdicts
`
`in similar
`
`cases;
`
`(2) a monthly
`
`rze.Itip'.ier,
`
`anived
`
`st by calculatings
`
`figute which
`
`.
`
`represents
`
`an amount
`
`that
`
`is reasonable
`
`f br a mesothelioma
`
`victim to be awarded per month
`
`of
`
`Page -6-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`A42
`
`pain and suffering,
`
`and then adtiplying
`
`this figure by thennmber
`
`of months
`
`of past and thture
`
`pain and suffering;
`
`and (3) a totality
`
`of circumstances
`
`approach.
`
`(Caraolo.
`
`1999 WL 147740 at
`
`17; Consorti.
`
`9 P Supp 2d at 317-318.)
`
`The percentage
`
`redtiction
`
`and monthly
`
`sialtiplier
`
`appmaches
`
`have been criticized
`
`as
`
`ignoring
`
`the "human
`
`element"
`
`or factual
`
`specifies
`
`of each case (ii
`
`at 318), and have been
`
`rejected
`
`by federal
`
`courts applying New York
`
`law in favorof
`
`the "totality
`
`of circtanstances
`
`approach.
`
`Gi; Caruolo,
`
`1999 WL .147740 at 17.) Underthis
`
`appnosch,
`
`the duration
`
`of
`
`the
`
`illness as well as degree of suffering
`
`are factors
`
`in detennining
`
`whether
`
`the jmy award is
`
`excessive.
`
`Qi)
`
`In theinstant
`
`cases,each
`
`plaindff
`
`was diagnned
`
`withmesolbeliqma.
`
`The onset of
`
`plaintiffMatteson's
`
`illnes
`
`was January 2001, approximately
`
`17 mouths before the date of
`
`verdict.
`
`The onset of Mr. Lustenring's
`
`illness was April
`
`2000, and he died in August
`
`2001,
`
`appmximately
`
`17 roonths
`
`later.
`
`The jmy
`
`awardal Mr. Matteson
`
`5 million
`
`dollars
`
`for past pain
`
`and auffining,
`
`and 8 million
`
`dollars
`
`for
`
`future pain and affering
`
`for a period
`
`of 24 months.
`
`In
`
`the Matteson
`
`case, a los
`
`of comamrtium claim was not put
`
`tb the jmy.
`
`The jury awarded
`
`the
`
`estate of Mr. Lusteering
`
`5 million
`
`dollars
`
`for pain and suffedng,
`
`Damages
`
`for
`
`loss of comortium
`
`IThe percentage reduction method appears to derive than Didner vXeene Corp.
`Jan. 4,
`(NYLJ,
`15 [1"
`1991, at 22, oo12 [3up Ct, NY County
`t990]), g.Gi1[without
`discussion ofremittitory
`188 AD2d
`82 NY2d 342),
`Dept 1993], modified
`in which Justice Helen Freedgma, New York's
`leading jurist
`handling asbestos cases, remitted pain and suffering asbestos awards in 1990 and 1991 litigation.
`($_es
`hi a later decision, Marmintr v Georgia Pacific Com.
`Consorti. 9 F Supp 2d at 3I2-313.)
`(sup Ct, NY
`Index No. 10275754),
`County, Feb. 3, 1995,
`Justice Freedman stated:"While
`rnay no longer be
`Diggg
`I believe that reasonableness should prevail"
`it does not appear that
`hi Manning. moreover,
`cotttrolling,
`to case lawreports
`Justice Freedman herself applied a percentage reduction fortnula. According
`of
`in 19963 she reiterated that Didner
`forther
`remittitor
`decisions by Justice Freedman,
`is no longer
`and noted "while
`in the past I have remitted cases to lower amounts,
`it seems thejuriles
`are
`controlling
`to come in with higher verdicts."
`(Carenla.
`1999 WL 147740 at 19; Consorti.9F
`Supp 2d at
`continuing
`315.)
`
`Page -7-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`.
`
`------------
`
`-
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`._.
`.
`_....
`.. .__
`
`in the amount
`
`of L5 million
`
`dollars were awarded to his wife.
`
`In aid of
`
`this court's
`
`case comparison
`
`analysis, both sides submitted
`
`smmmaries of
`
`asbestos verdicts
`
`for pain and suffering.
`
`These summaries
`
`did not distinguish
`
`between
`
`awards
`
`for past and future pain and s::f½ing.
`
`Defendants
`
`subn:itted
`
`25 remitted
`
`verdicts.
`
`The verd jets
`
`for pain ad suffaing
`
`of approximately
`
`the same dmation
`
`as plaintiffs'
`
`(18 maths
`
`and
`
`above),'
`
`maged from 1.5 to 5 million
`
`dollers,
`
`broken down by amount per month from a low of
`
`appuaimately
`
`$83,000
`
`to a high of approximately
`
`$166,000.
`
`Plaintiffs
`
`submitted
`
`30 verdicts.
`
`Plaintiffs'
`
`summary
`
`doet not appear
`
`to include remitted
`
`awards, although
`
`it does contain
`
`several
`
`verdicts
`
`as to which
`
`=nittit:::motions
`
`were denied. Plaintiffs'
`
`==:::i*.ed
`
`verdicts
`
`for pain and
`
`of 18 months
`
`and above ranged from 5 to 14.6 million
`
`brolam down by amount
`
`suffering
`
`dollars,
`
`permouth
`
`from a low of approximately
`
`$212,000
`
`to a high of approximately
`
`$521,000.
`
`The
`
`highest awards,
`
`listed on plaintiffs'
`
`simSmany f br which =::ittit::-
`
`was denied, were in the
`
`amounts
`
`of 6 and 6.5 million
`
`dollars, which broke down to appmximately
`
`$1B7,000
`
`per month
`
`fdr32 months,
`
`and 366,000
`
`permonth
`
`for99months.
`
`On consideration
`
`of
`
`the sample ofmesothelloma
`
`venlicts which were summarized
`
`by the
`
`parties and reported
`
`in the case Jaw, as well as consideration
`
`of
`
`the totality
`
`of circundances
`
`of
`
`eacit pldintiffscase,
`
`the comt
`
`concludes
`
`that
`
`the venlicts
`
`roust he 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, gregorious man, he was still active.ly involved
`
`in athletic,
`
`.
`
`,
`
`social and family
`-
`
`activities.
`
`Shortly
`
`af Wr the onset of his fllness,
`
`he underwent
`
`9 months
`
`of
`
`.
`
`8No verdicts for a 15 to 17 reonds period were adanitted.
`
`Page -8-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`A44
`
`. chemotherapy,
`
`from which
`
`he sufferedmirerse
`
`effects, and experienced
`
`a progressive
`
`deterioration
`
`of his health,
`
`b::cming
`
`increasingly
`
`weak mul depressed,
`
`The trial
`
`tecord showed
`
`that he experienced
`
`a radical
`
`di-r
`
`::
`
`inhis
`
`ability
`
`to participate
`
`in the activities
`
`that he had
`
`enjoyed prior
`
`to his illness.
`
`In addition,
`
`his ability
`
`to eate far his wife of over 50 years, who
`
`sufTered from physical
`
`and emotional
`
`problems, was substantially
`
`diminished.
`
`The evidence
`
`at trial providae
`
`ample support
`
`for a fimfmg
`
`that Mr. Malteson
`
`is entitled
`
`to
`
`an award in the ange
`
`of
`
`the highest
`
`verdicts
`
`fbr past pain and suffering.
`
`However,
`
`the jurfs
`
`verdict
`
`of 5 snillion
`
`dollars
`
`appeam to substantially
`
`exceed any comparable
`
`verdict
`
`to data
`
`Thus,
`
`without
`
`ide:
`
`y the sufibring
`
`that Mr. Matteson
`
`has endured,
`
`the award forpast
`
`pain and
`
`suffering
`
`should be reduced
`
`to 3 million
`
`dollars
`
`(or approximately
`
`$175,000
`
`per month).
`
`supports
`
`the jmy's
`
`As to future pain and suffedng,
`
`the evidence
`
`finding
`
`that Mr.
`
`Matteson
`
`would
`
`live another
`
`24 amaths,
`
`a figure in line with the mafim1
`
`testimony
`
`as to the
`
`survivalsates
`
`for
`
`this incurable
`
`disease. Moreover,
`
`thereis
`
`no basis to believe
`
`that Mr. Matteson
`
`will
`
`not suffer
`
`the almost unimaginably
`
`grnesomermal
`
`illness that
`
`the evidence
`
`showed
`
`is
`
`characteristic
`
`of a death from mesothelioma.
`
`Awards
`
`fbr future
`
`gain and sufTering
`
`in the range of 4million
`
`dollars
`
`have been upheld.
`
`(Sgg Consorti.
`
`9 F Supp 2d 307, agun[future
`
`award rernitted
`
`to 4 million
`
`dollars
`
`in 1998];
`
`Fallon. Sup Ct, NY County,
`
`Ex. D to P.'s AfE In Opp., aggg.[futwe
`
`award remitted
`
`to 3.6
`
`million
`
`dollars
`
`in 1996].)
`
`Relying
`
`on these awards, Okonite
`
`argues that
`
`the future
`
`award fbr Mr.
`
`Matteson
`
`should
`
`be no higher
`
`than 3.6 million.
`
`IIowever,
`
`taking into account
`
`the passage of
`
`tune and increases
`
`in the amounts
`
`ofjury
`
`awards aince these awards were upheld,
`
`the court
`
`finds
`
`that an award in the smount
`
`of 4.5 million
`
`dollars
`
`for future pain and suffering
`
`would
`
`not be
`
`Page-9-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`A45
`
`ex cessive.
`
`Turning
`
`to the Lustenring
`
`cam lWr. Lusteming,
`
`although
`
`in his mid-70s,. was physically
`
`and socially
`
`active,
`
`and in excellent
`
`health prior
`
`to the onset of his illness. He first eaperienced
`
`gmpic¬.s
`
`in April
`
`2000. He underwent
`
`two painful
`
`surgeries
`
`(thoracotomics)
`
`in October
`
`and
`
`December
`
`2000 to drain pleural
`
`ef Fusions, During
`
`the course of his illness,he
`
`notperienced
`
`intense pain,
`
`thtstness
`
`of breath, progressive
`
`weakening
`
`ad weight
`
`loss, and increasing
`
`depression.
`
`His social and family
`
`activities
`
`were increasingly
`
`emailed
`
`antil,
`
`in the final months
`
`of his illnea.
`
`he was unable to do "much
`
`ofanything
`
`" As his condition
`
`father
`
`deteriorated,
`
`he
`
`became bedridden,
`
`anable to care for himself;
`
`and af$icted with agonizing
`
`pain.
`
`Based on the trial
`
`reco4
`
`and considaing
`
`comparable
`
`verdicts,
`
`the comt
`
`concludes
`
`that
`
`an award to Mr. Lusteering's
`
`estate of 4.5 million
`
`dollars would
`
`notbe
`
`cacessive.
`
`As to the loss
`
`.
`
`;
`
`!
`
`of consordum
`
`awad
`
`to Mr. Lustening's
`
`wife,
`
`there appeara to be scet
`
`a-thm.ts
`
`addressing
`
`the
`
`reasonableness
`
`of such an awant
`
`in the asbestos litigation
`
`context.
`
`Arguing.that
`
`a parcentage
`
`reduction
`
`founcla
`
`should be applied
`
`to reduce thia award to a maximum of $20,000
`
`per month,
`
`defendant
`
`John Crano 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
`
`therecord
`
`supports
`
`the fin4ng
`
`that
`
`the Lustenrings
`
`had a long and loving marriage
`
`of over50
`
`years, and that Mr. Lusteering
`
`was a=nciderable
`
`source of support
`
`to bis wife,
`
`the court
`
`finds that
`
`the award should be reduced to 3750,000.
`
`Accordingly,
`
`it
`
`is hereby ORDERED
`
`that
`
`the motions
`
`of defendants Okonite
`
`and Jolm
`
`Crane are granted
`
`to the following
`
`extent:
`
`The jury's
`
`finding
`
`ofrecklaanee=
`
`against Okonite
`
`isstruck•,
`
`and it
`
`is fitrther
`
`Page -10-
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/05/2019 11:35 PM
`NYSCEF DOC. NO. 434
`
`INDEX NO. 190389/2017
`
`RECEIVED NYSCEF: 03/05/2019
`
`A46
`
`ORDEiGED
`
`that a new trial by plaintiff Matteson
`
`against def bndants Okonite
`
`and John
`
`Cranc
`
`is ordered
`
`unless plaintiff
`
`Matteson
`
`stipulates
`
`to the entry of a new judgment
`
`in the
`
`amount
`
`of7.5 million
`
`dollang
`
`and it
`
`is father
`
`ORDERED
`
`that a new trial by the estate of John Lestenring
`
`andNatalie
`
`Inste
`
`ing is
`
`ordered
`
`unless plaintiff
`
`estate stipulates
`
`to the entry of a nsw judgment
`
`in the amount
`
`of 4.5
`
`million
`
`dollars,
`
`and plaintiff
`
`Natalie
`
`Lusteering
`
`stipulates
`
`to f be entry ofa new judgment
`
`in the
`
`amount
`
`of $750,000;
`
`and it
`
`is furthat
`
`ORDERED
`
`that
`
`the motions
`
`as otherwise
`
`denied.
`
`Settle judgment.
`
`This constitutes
`
`the decision
`
`and order of
`
`the comt.
`
`Dated: New Yadr. New York
`April 4 2003
`
`MARC
`
`MAN,
`
`J.S.C.
`
`.
`
`.
`
`Page -11-
`
`

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