throbber
INDEX NO. 2015EF1062
`FILED: ONONDAGA COUNTY CLERK 10/07/2016 04:02 PM
`INDEX NO- 2015EF1062
`FILED: ONONDAGA COUNTY CLERK 102016 04:02 P
`RECEIVED NYSCEF: 10 07/2016
`NYSCEF DOC. NO. 225
`RECEIVED NYSCEF: 10/07/2016
`NYSCEF DOC. NO. 225
`E INDEX NO‘ 190132 2°13
`NYSCEF DOC. NO. 360
`RECEIVED NYSCEF: O5/15/2015
`
`SUWHKEDIE(30IHRT1DF”FHIEST¥KEE(3FWVEWV3N)RJ(
`
`NEW YORK COUNTY
`
`PART
`
`INDEX NO.
`
`MOTION DATE
`
`MOTION SEQ. NO.
`
`| No(s).
`
`| No(s).
`
`| No(s).
`
`PRESENT:
`
`'
`
`e)K¥lxH1AS'KERQNG
`
`" '
`
`
`Justice
`
`inde§ZEIJn‘6€r{'19o132/2013
`I
`I HILLYER, CHARLES F.

`VS.
`9 A.O. SMITH WATER PRODUCTS co..
`I
`SEQUENCE NUMBER 1 011
`TRIAL DE NOVO
`
`The following papers, numbered 1 to __________ , were read on this motion to/for
`
`Notice of Motionlorder to Show Cause — Affidavits —-— Exhibits
`
`Answering Affidavits — Exhibits
`
`
`Replying Affidavits
`
`Upon the foregoing papers, It is ordered that this motion is
`
`is decided in accordance w‘
`ith the annexed decision
`
`
`
`MOTIONICASEISRESPECTFULLYREFERREDTOJUSTICE
`
`
`
`FORTHEFOLLOWINGREASON(S):
`
`W SI \§ M5
`
`2%,
`
`,J.S.C.
`
`’
`
`1. cuecx ONE: ..................................................................... 2§ CASE DISPOSED
`2. cuscx AS APPROPRIATE: ...........................MOTlON IS: [3 GRANTED
`D DENIED
`
`I s. KERN
`
`CYNTH E NON;F_I_NA:L DISPOSITION
`C] GRANTED IN PART
`E] OTHER
`
`3. cnecx IF APPROPRIATE: ................................................ C] SETTLE ORDER
`[3 Do NOT POST
`
`[3 SUBMIT ORDER
`[J FIDUCIARY APPOINTMENT
`E] REFERENCE
`
`~
`
`

`

`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK: Part 55
`................................................................--x
`
`IN RE: NEW YORK CITY ASBESTOS LITIGATION
`....................................................................x
`
`CHARLENE I-IILLYER, as Executrix for the Estate of
`CHARLES F. HILLYER,
`
`Plaintiffs,
`
`Index No.l90l 32/13
`
`-against—
`A.O. SMITH WATER PRODUCTS CO., et a1.,
`
`DECISION/ORDER
`
`Defendants.
`................................................................_-X
`
`HON. CYNTHIA KERN, J.S.C.
`
`Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion
`for :
`
`Papers
`
`Numbered
`
`Notice of Motion and Affidavits Annexed .................................. ..
`
`Answering Affidavits................................................................. ..
`Replying Affidavits .................................................................... ..
`Exhibits .................................................................................... ..
`
`I
`
`-
`
`2 '
`3
`
`Defendant Bumham LLC (“Bumham”) 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
`
`that judgment be entered in favor of Bumham, or in the alternative, for a new trial.
`
`In the
`
`alternative, it seeks remittitur of the verdict.
`
`Decedent Charles Hillyer instituted this asbestos product-liability action. At the time trial
`
`commenced, there were three remaining defendants, Bumham,Cleaver Brooks, Inc. and William
`
`Powell Company. Plaintiff and Cleaver Brooks Inc. resolved the case during the trial and
`
`plaintiff voluntarily discontinued as against William Powell Company before jury deliberations
`
`

`

`began. The jury rendered a verdict in favor of plaintiff and against defendant Bumham in the
`
`amount of $20 million for past pain and suffering. The jury also allocated thirty percent of
`liability to Bumham, thirty percent to Cleaver Brooks Inc. and forty percent to William Powell
`
`Company. The jury also found that Bumham was reckless in failing to warn of the toxic hazards
`
`of asbestos.
`
`Plaintiff testified at his deposition regarding his exposure to Bumham boilers. He
`
`testified that he worked around many Bumham boilers as a steamfitter infthe 1970's and that he
`
`was exposed to asbestos from Bumham boilers when he worked around l3umham boilers. Tr. at
`
`651-652, 700. He testified that he believed he was exposed to asbestos from Bumham boilers
`
`and other boilers when other workers would tear off the insulation from the boilers. Tr. at 700.
`
`He testified as follows:
`
`Again, they would tear off the insulation, we would be taking off valves and that—and I be
`in the general area that they were working and they were just throwing it on the ground
`and again, walking in it, creating dust.
`
`Tr. at 700.
`
`Bumham makes a number of arguments as to why the verdict should be set aside.
`
`It
`
`argues that (1) it is entitled to a directed verdict or a new trial because plaintiff failed to prove
`
`that Bumham’s failure to warn was a proximate cause of plaintiffs injury: (2) the jury’s
`
`recklessness findings were not supported by the evidence; (3) the court’s instruction on
`
`recklessness was improper; (5) it is entitled to a directed verdict or judgment notwithstanding the
`
`verdict because plaintiffs expert opinion was insufficient as a matter of law to establish specific
`
`causation; and (6) it is entitled to a new trial because thejury’s allocation of fault is against the
`I
`
`

`

`weight of the evidence.
`
`In the alternative, it argues that the jury’s award exceeds what is a
`
`reasonable award under the circumstances.
`
`Section 4404(a) of the CPLR provides that “upon a motion of any party or on its own
`
`initiative, a court may set aside a verdict .
`
`.
`
`. and direct thatjudgment be entered in favor of a
`
`party entitled to judgment as a matter of law or it may order a new trial .
`
`. where the verdict is
`
`contrary to the weight of the evidence, [or] in the interest ofjustice.” The standard for setting
`
`aside a verdict is very high. The Court of Appeals has held that a verdictjmay be set aside only
`
`when “there is simply no valid line of reasoning and permissible inferences” which could have
`
`led to the conclusion reached by the jury. Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493 (1978).
`
`The First Department held that a verdict “will not be set aside unless the preponderance of the
`
`evidence is so great that the jury could not have reached its verdict upon any fair interpretation of
`
`the evidence.” Pavlou v. City ofNew York, 21 A.D.3d 74, 76 US‘ Dept 2005). Moreover, the
`evidence must be construed in the light most favorable to the party that prevailed at trial. See
`
`Motichka v. Cody, 279 A.D.2d 310 (l"“ Dept 2001). Where the casepresents conflicting expert
`
`testimony, “[t]he weight to be accorded the conflicting testimony of experts is ‘a matter
`
`peculiarly within the province of the jury.”’ Torricelli v. Pisacano, 9 A.D.3d 291 (1" Dept 2004)
`
`(citation omitted); see also Cholewinski v. Wisnicki, 21 A.D.3d 791 (l“ Dept 2005).
`Initially, Bumham argues that it is entitled to a directed verdict ortjudgment
`notwithstanding the verdict on the ground that plaintiff failed to prove that he would have heeded
`a warning if a warning had been provided by Bumham. However, this coiirt has already rendered
`
`a decision at the conclusion of the trial denying Burnham’s motion for a directed verdict on this
`
`issue and sees no reason to revisit this issue. This court specifically held as follows:
`
`

`

`After hearing arguments from both counsel and reading the relevant deposition testimony
`of the plaintiff in this action, and in light of the fact that plaintiff is deceased and not here
`and able to testify at trial, the court finds that there is enough testimony in the deposition
`transcript so that the issue of whether or not plaintiff would have heeded a [warning]
`should be an issue to be decided by the jury rather than by the cotirt as a matter of law;
`and that the jury could make a reasonable inference from the testimony of the plaintiff
`that he would have heeded a [warning] if it had been provided to him.
`
`Contrary to the argument made by Bumham, the court did not apply the heeding presumption in
`
`making its ruling denying the motion for a directed verdict. Rather, the churt found that there
`
`was sufficient factual evidence in the record to submit the issue of whether plaintiff would have
`
`heeded a warning if it had been provided to the jury, who was entitled to inake a credibility
`
`determination as to whether plaintiff would have heeded a warning if it had been given.
`
`Moreover, it is well settled that “[o]rdinarily, issues of proximate cause are fact questions
`
`to be decided by a jury.” White v. Diaz, 49 A.D.3d 134, 139 ( 15‘ Dept 20Oi8)V (internal citation
`
`omitted). Indeed, “[w]hile it is appropriate to decide the question of legal cause as a matter of
`
`law ‘where only one conclusion may be drawn from the established facts‘, where there is any
`
`doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter of
`
`law, the better course is to leave the point for the jury to decide.” Id. (quoting Derdiarian v.
`
`Felix Contr. Corp., 51 N.Y.2d 308, 315 (1980)). Based on these well established principles, it is
`
`appropriate under the circumstances of this cause for thejury to have determined the issue of
`
`whether the failure to warn was the proximate cause of plaintiffs injuriesirather than the court
`
`deciding the issue as a matter of law, as it is not clear that only one conclusion may be drawn
`
`from the deposition testimony as to whether plaintiff would have heeded a warning.
`
`To the extent that Bumham argues that the court committed an error by not specifically
`
`

`

`charging the jury that it was plaintiffs burden to prove that plaintiff would have heeded a
`
`warning if one had been given, the court finds this argument to be without merit. The court’s
`
`charges on duty to warn, proximate cause and burdens of proof were entirely consistent with the
`
`charges contained in the pattemjury instructions, there is no pattern jury instruction which
`
`contains the language Bumham wished the court to charge regarding burden of proof and
`
`Bumham has not cited to any authority for the proposition that the court is required to charge the
`
`foregoing language regarding burden of proof.
`
`Bumham next argues that the court should set aside the jury’s veriiict that Bumham acted
`
`with reckless disregard for plaintiff’ 5 safety as the evidence at trial did not warrant submission of
`the reckless disregard issue to the jury and the jury’s finding of recklessness was against the
`
`Its primary argument is that the evidence presented at trial did not
`weight of the evidence.
`establish recklessness based on the Court of Appeals decision in Maltese Westinghouse
`
`Electric Corp, 89 N.Y.2d 955 (1997).
`
`In Maltese, the court stated that itiwas adopting a “gross
`
`negligence standard” for reckless conduct, requiring a finding that “the actor has intentionally
`
`done an act of an unreasonable character in disregard ofa known and obvious risk that was so
`
`great as to make it highly probable that harm would follow and has done so with conscious
`
`indifference to the outcome.” The court stated that there was insufficient evidence to sustain a
`
`verdict of recklessness. According to the court, the evidence revealed that the defendant was
`
`aware that exposure to high concentrations of asbestos over time could cause injury “but not that
`
`workers such as [plaintiffs] were at risk at any time it could have warned them.” Id.
`
`The court finds that the jury’s finding that Bumham acted with reckless disregard is
`
`supported by the record and should not be set aside. There was a valid line of reasoning and
`
`

`

`permissible inferences which could have led a rational jury to conclude based on the evidence
`
`presented at trial that Bumham acted with reckless disregard, unlike the defendant in Maltese.
`
`Initially, there was evidence presented at trial from which a jury could have rationally concluded
`that Bumham had actual knowledge that exposure to high concentrationslof asbestos over time
`
`could cause injury. There was also evidence presented at trial from which a jury could have
`
`rationally concluded that during the period of plaintiff’ s claimed exposure to Bumham’s boilers
`
`in the 1970's that Bumham was aware of the following: that there were unjacketed Bumham
`boilers still in use; that Bumham had previously specified that these unjacketed boilers should be
`
`covered with asbestos cement; that these boilers were in fact covered with asbestos cement; that
`
`the asbestos cement would eventually have to be removed from the boilers when they were
`
`replaced or discarded; that when the asbestos cement was removed from the boilers, dust
`
`containing asbestos would be dispersed in the air and could be breathed in by workers in the
`
`vicinity, including workers who were not specifically working on the boilers; that Bumham never
`
`tested or investigated the safety of asbestos despite the fact that it knew asbestos was being used
`
`with its boilers; and that Bumham did not provide any warnings to any of these workers in
`
`violation of its continuing duty to warn post sale. Based on these inferences, which the jury
`
`could reasonably conclude based on the evidence presented at trial, there was a rational basis for
`
`the jury to conclude that Bumham “has intentionally done an act of an unreasonable character in
`
`disregard of a known and obvious risk that was so great as to make it highly probable that harm
`7
`
`would follow and has done so with conscious indifference to the outcome.’
`
`Id. Moreover, there
`
`was evidence presented from which ajury could rationally conclude that l3urnham could have
`
`warned workers such as plaintiff in the 1970's that they were at risk whenjthey were in the
`
`

`

`vicinity of the unjackcted boilers at the time that the asbestos cement was removed from the
`
`boilers.
`
`This exact issue was recently addressed by Justice Madden in Assenzio v. A.(). Smith
`
`Water Products, Co.. Index No. 190008/2012 (Sup Ct. NY Co 20l2). Inthat decision, she
`
`rejected the same argument being made in the present case that there wasiinsufficient evidence
`
`before the jury to uphold a finding of recklessness as against Bumham under the standard set
`
`forth by the Court of Appeals in Maltese. According to Justice Madden:
`
`Plaintiffs presented sufficient evidence with respect to the dangers of asbestos exposure
`from publically available information as well as information available in various trade
`journals and in other literature and in government regulations andgstatutes, including
`worker’s compensation laws, so that the jury could find that ...Burnham knew or should
`have known of the dangers of exposure to asbestos. Moreover, sufficient evidence at trial
`was presented to establish that Bumham...specified the use of, or knew that asbestos
`containing products would be used in their equipment.
`.,
`
`This evidence establishes sufficient proof to sustain the jury’s determination that
`Bumham acted with gross indifference to the rights or safety of others, as Bumham knew
`of the dangers of asbestos; it had a history of selling boilers for over one hundred years; it
`specified the use of asbestos insulation on the exterior and interior of its boilers and sold
`such insulation; it failed to perform any testing with respect to exposure to asbestos, and
`it failed to warn about the dangers of asbestos.
`so
`
`Moreover, as the First Department found in the Dummitt case against Crane, there was;
`
`sufficient evidence showing [defendant’s] reckless disregard for the hazards posed by
`asbestos. The evidence demonstrated that [defendant] had received warnings about the
`dangers of asbestos as early as the 1930's from various trade associations, and [defendant]
`admitted it knew of the dangers of asbestos by the early 1970's.
`4
`
`Similarly, in this case against Bumham, there was evidence admitted from which a jury could
`
`reasonably infer that defendant had received warnings about the danger of asbestos as early as the
`
`1930's from various trade associations and that it knew about the dangers of asbestos in the
`
`

`

`1970's when plaintiff was allegedly exposed to asbestos from Bumham boilers.
`
`Bumham next argues that the court’s instruction on recklessness was improper as it failed
`
`to adequately convey to the jury the level of culpability required to support a recklessness
`
`finding.
`
`It argues that the jury charge contained in pattemjury instruction 2:27S.2, which is the
`
`charge that this court used, fails to incorporate the standard required by the Court of Appeals
`decision in Maltese This argument is without basis as the court finds thatithe language it used to
`
`instruct the jury on the recklessness standard was proper. As Justice Madden recently held in
`
`Asserzzio v. A.0 Water Smith Prad., “in Maltese, the court did not hold that any specific language
`
`was required, and the PJI charge, as given, adequately expressed the standard.” Moreover, the
`
`First Department in In re New York City Asbestos Litig. (Konstantin and Dummitt), 121 A.D.3d
`
`230 (1“ Dept 2014) (“Dummitt”) recently upheld a finding of recklessness as to other defendants
`
`in an asbestos product liability litigation where the same exact language was used in charging the
`
`jury on recklessness. Moreover, Bumham has not cited any cases where a court has found that
`
`the language used in the pattern jury instruction to define recklessness has] ever been overturned
`
`by any court as not articulating the proper standard despite the fact that this charge has been used
`in countless litigations, including numerous asbestos and non-asbestos cases, and despite the fact
`
`that the Maltese decision is from 1997, approximately eighteen years ago.l
`
`Bumham next argues that it is entitled to a directed verdict or judgment notwithstanding
`
`the verdict because plaintiffs expert opinion was insufficient as a matter of law to establish
`specific causation as required under the holding in Parker v. Mobil Oil Corp., 7 N.Y.3d 434
`
`(2006). In Parker, the court held that it “is well established that an opinion on causation should
`
`set forth a plaintiffs exposure to a toxin, that the toxin is capable of causing the particular illness
`
`

`

`(general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the
`
`illness (specific causation.).” Id. at 448. However, “it is not always necessary for a plaintiff to
`
`quantify exposure levels precisely or use the dose—response relationship, provided that whatever
`
`methods an expert uses to establish causation are generally accepted in the scientific
`
`community.” Id.
`
`In that case, the court rejected the plaintiffs experts’ testimony that exposure to
`
`gasoline caused plaintiffs AML as “[p]laintifPs experts were unable to identify a single
`
`epidemiologic study finding an increased risk of AML a s a result of exposure to gasoline.” Id.
`
`at 450.
`
`In Cornell v. 360 W. 5151 Realty LLC, 22 N.Y. 762 (2014), the Court of Appeals again
`
`addressed the issue of what showing must be made to establish specific causation in a toxic tort
`
`case.
`
`It stated as follows:
`
`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.
`
`In Lustenring v. AC&S, 1m:., 13 A.D.3d 69 (l“ Dept 2004), lv. denied, 4 N.Y.3d 708
`
`(2005), an asbestos case, the First Department addressed what showing must be made to establish
`
`specific causation in an asbestos case. According to the court, the evidence showed that
`
`plaintiffs worked all day for long periods in clouds of dust which was raised by the manipulation
`
`and crushing of defendant’s packing and gaskets, which were made with asbestos. The court
`
`found that “[v]alid expert testimony indicated that such dust, raised from asbestos products and
`
`

`

`not just from industrial air in general, necessarily contains enough asbestos to cause
`
`mesothelioma.” Id. at 70.
`
`In the present case, the court finds that the expert testimony presented in this case was
`
`sufficient to satisfy the standards enunciated by the Court of Appeals in Parker and Cornell.
`
`Initially, the trial and appellate courts in New York which have addressed the issue, both before
`
`and after Parker have been decided, have consistently held that the presence of visible dust from
`
`an asbestos containing product establishes a sufficient foundation for an expert to conclude that
`
`the use of such product was a substantial factor in causing mesothelioma and Bumham has not
`
`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; Penn v. Amchem, 85 A.DE.3d 475, 476 (1“ Dept
`
`20lO)(“On the issue of causation, sufficient evidence was provided by [plaintiff s] testimony that
`
`visible dust emanated while working with the dental liners and by his expert’s testimony that
`
`such dust must have contained enough asbestos to cause his mesothelioma”); Matter ofNew York
`
`Asbestos Litig, 28 A.D.3d 255 (l“ Dept 2006)(evidence fairly interpreted,1perrnitted liability
`
`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
`
`asbestos. The experts indicated that such dust from asbestos containing products contained
`
`enough asbestos to cause mesothelioma”); Berger v. Achem Products, 13 Misc. 3d 335, 346 (Sup
`
`Ct NY Co 2006)( “It has long been established that mesothelioma caused by asbestos exposure is
`
`frequently not dose related and relatively small numbers of fiber that are inhaled may remain in
`
`the lungs for long periods and cause mesothelioma”). Cf Arthur Juni v. A.0. Smith Water
`
`Product, Index No. 190315/2012 (Sup Ct NY Co 201 5)(evidence offered insufficient to prove
`
`l0
`
`

`

`
`
`i
`
`i
`
`iilll
`
`that dust to which plaintiff was exposed contained any asbestos).
`
`Moreover, the court finds that the expert testimony of David Schwartz, M.D. was
`
`sufficient to present the issue of specific causation to the jury to be resolved. Initially, he
`
`testified that there is no safe level of exposure to asbestos in regard to causing mesothelioma and
`
`that there are people who develop mesothelioma after being exposed to extraordinarily low
`
`concentrations of asbestos. Tr. at 1019. He further testified that:
`
`you can never pick out the one fiber that caused the disease, even‘ though its possible that
`one fiber could cause disease. The risk is related to the amount ofexposure that someone
`experienced throughout their lifetime, and you can’t pick apart those individual
`exposures. What you can say is the exposures that took place within the latency period,
`the first exposure to onset of disease are all related to, and contribute to the risk of
`developing the particular outcome, in this case, the mesothelioma:'
`
`All we know is the cumulative exposure increased his cumulative ,risk of developing
`mesothelioma and that all of the exposure contributed to the development of his
`mesothelioma.
`
`Tr. at 1021, 1029. He further testified that plaintiffs mesothelioma was caused by occupational
`
`exposure to asbestos. Tr. at 1027. He testified that plaintiff “was exposed to asbestos between
`
`1960 and 1983. During that time he was exposed on a very regular basis to asbestos while
`
`working as a steamfitter. He was exposed by virtue of his own activities as a steamfitter and by
`
`virtue of working around others who were working in his environment oniproducts that were, or
`
`machinery that was insulated with asbestos.” Tr. at 1028. Finally, he alsoitestified that based on
`
`plaintiffs deposition testimony that while he was working as a steamfitter, he worked around
`
`many Bumham boilers, that other workers were tearing off insulation from the Bumham boilers
`
`in his presence and that there would be visible dust from this activity, that “the exposure to the
`
`dust from the boilers was a substantial contributing factor in terms of Mr. Hillyer developing
`
`ll
`
`

`

`mesothelioma.” Tr. at 1036. The basis for this opinion was his “personal and professional
`
`training in occupational environmental medicine as well as [his] experience in this area, the peer
`
`reviewed literature, the opinions of professional societies, and the opinion of scientific
`
`organizations as well as regulatory bodies.” Tr. at 1036.
`
`The court finds that the methods used by plaintiffs expert at trial to establish that
`
`plaintiff was exposed to sufficient levels of asbestos from Bumham’s products for those products
`
`to have been a substantial contributing factor in causing plaintiffs mesothelioma are generally
`
`accepted in the scientific community. Based on the testimony presented at trial, the expert
`sufficiently established that it is generally accepted in the scientific community that there is no
`
`safe level of exposure to asbestos, that even a low dose exposure to asbestos can cause
`
`mesothelioma and that plaintiff was exposed to asbestos from Bumham boilers based on the
`
`release ofvisible dust when the insulation was removed. As the Court of%Appeals made clear in
`
`Parker. “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the
`
`dose-response relationship, provided that whatever methods an expert uses to establish causation
`
`are generally accepted in the scientific community.” Id.
`
`Bumham’s argument that it is entitled to a new trial because the jury’s allocation of fault
`
`is not supported by the evidence is without basis. The court finds that there was a sufficient
`
`evidentiary basis for the jury’s determination as to the allocation of fault based on the evidence
`
`presented at trial, which allocated 30 percent of the fault to Bumham.
`
`The next issue the court must address is whether the jury’s award to Hillyer of
`
`$20,000,000 for past pain and suffering from the onset of mesothelioma to the date of his death
`
`was excessive and if so, whether a new trial on the issue of damages should be ordered. The
`
`12
`
`

`

`standard to be applied is whether the award “deviates materially from what would be reasonable
`
`compensation.” CPLR §550l (c). In order to determine whether the award was excessive, the
`
`court must compare the instant case with analogous cases with awards that have been previously
`
`upheld. See Donlon v. City ofNew York, 284 A.D.2d 13, l8 (l"" Dept 2001). The most recent
`
`decision from the First Department addressing the issue of the amount of damages to be awarded
`
`in a mesothelioma case is Dummitt.
`
`In that case, the First Department upheld an award of past
`
`pain and suffering of $4.5 million and $3.5 million for future pain and suffering.
`
`It also upheld
`
`an award of past pain and suffering of $5.5 million and an award for future pain and suffering for
`
`$2.5 million.
`
`In other decisions, the First Department upheld an award of $1 .5 million for past
`
`pain and suffering and $2 million for future pain and suffering (Penn v. Aichem Products, 85
`
`A.D.3d 475) US‘ Dept 2011) and $3 million and $4.5 million respectively (Matter ofNew York
`
`Asbestos Litig, Marshall, 28 A.D.3d 255) (l“ Dept 2006).
`
`In the instant case, the jury awarded plaintiff $20,000,000 for pastipain and suffering
`
`from the date of diagnosis until the time of death. He started experiencing symptoms in March
`
`of 2012, he was diagnosed with mesothelioma in March 2013 and passediaway in September
`
`20l4. During that period, he experienced severe pain; shortness of breath; great difficulty
`
`breathing; multiple thoracenteses; debilitating chemotherapy treatments; a radical pleurectomy;
`
`radiation; and pneumonia. Based on all the circumstances of Mr. Hillyer’s injuries, the award of
`
`$20,000,000 for past pain and suffering deviates materially from what would be reasonable
`
`compensation. Pursuant to CPLR 5501 (c), the award for past pain and suffering is vacated and a
`
`new trial ordered on the issue of damages unless plaintiff within 30 days of service of a copy of
`
`this decision and order with notice of entry stipulates to reduce the awardito $6 million.
`
`13
`
`

`

`Accordingly, it is hereby
`
`ORDERED that the branches of Bumham’s motion for ajudgment notwithstanding the
`
`verdict is denied; and it is further
`
`i
`
`ORDERED that the portion of Burnham’s motion to set aside the verdict is granted only
`
`to the extent of vacating the award of past pain and suffering to Hiilyer 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 stipulates to reduce the amount of past pain and sufferingto $6 million; and it is
`
`further
`
`Dated:
`
`ORDERED that the balance of Bumham’s motion to set aside the verdict is denied.
`
`Enter:
`
`O
`
`E
`
`14
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Try refreshing this document from the court, or go back to the docket to see other documents.

We are unable to display this document.

Go back to the docket to see more.