36 Misc.3d 1234(A), 2012-51597, In re New York City Asbestos Litigation Dummitt

• Citation: 960 N.Y.S.2d 51,36 Misc.3d 1234(A)
• Date: 20 August 2012
• Docket Number: 2012-51597,1090196/10
• Parties: In the Matter of New York City Asbestos Litigation Ronald Dummitt, Plaintiff, v. A.W. Chesterton et al., Defendants

Page 1234(A)

36 Misc.3d 1234(A)

960 N.Y.S.2d 51

In the Matter of New York City Asbestos Litigation Ronald Dummitt, Plaintiff,

v.

A.W. Chesterton et al., Defendants

Nos. 2012-51597, 1090196/10

Supreme Court of New York, New York

August 20, 2012

As Corrected August 30, 2012.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

For plaintiff: Belluck & Fox, LLP, by Jordan Fox, Esq. and Seth A. Dymond, Esq., N.Y. NY.

For defendant Crane Co.: K & L Gates, by Tara L. Pehush, Esq., Jeffrey S. King, Esq. and Angela DiGiglio, Esq., NY, NY.

OPINION

Joan A. Madden, J.

Defendant Crane Co. (Crane) moves pursuant to CPLR 4404(a) to set aside the judgment in favor of plaintiff and for judgment in its favor as a matter of law on the grounds that it is not liable for the mesothelioma plaintiff Ronald Dummitt alleges he developed as a result of exposure to asbestos while serving in the Navy. The jury found that Crane acted recklessly in failing to warn of the dangers of asbestos, and awarded damages of $32 million; $16 million for past and $16 million for future pain and suffering.¹ Specifically, Crane argues it is not liable as it did not manufacture, supply or place into the stream of commerce any of the asbestos containing products to which Mr. Dummitt was exposed; Mr. Dummitt was exposed to asbestos containing products manufactured by other companies; Crane is shielded from liability based on the government contractor defense; the Navy was a knowledgeable purchaser; the Navy's failure to warn was a supervening cause; and there was insufficient evidence of recklessness and insufficient evidence that any breach of a duty by Crane was a proximate cause of Mr. Dummitt's mesothelioma. In the event judgment is not entered in its favor, Crane moves to set aside the verdict and for a new trial on those grounds, and on the grounds that consolidation of Mr. Dummitt's case with several other cases was prejudicial; the court erred in excluding the Navy from the verdict sheet and in its instructions with respect to the burden of proof as to CPLR Article 16 apportionment; and the jury's failure to apportion damages to any companies other than Crane and Elliot was against the weight of the evidence. Finally, Crane moves to set aside the verdict of $16 million each for past and future pain and suffering on the grounds that it is excessive.

Plaintiff opposes the motion with respect to Crane's argument that it is entitled to judgment as a matter of law arguing that Crane bases its motion on an incorrect standard of review, that Crane's arguments address whether there was evidence to support its contentions, not whether there was a rational basis for the jury's verdict, the correct standard of review. Plaintiff further argues that the evidence at trial was sufficient to support the jury's verdict, the verdict was not excessive, and the court did not err as to the law with respect to the government contractor defense, the burden of proof under Article 16 and in excluding the Navy from the verdict sheet.

CPLR 4404(a) provides that " the court may set aside a verdict or any judgment entered thereon and direct that judgment 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 interests of justice." The standard for setting aside the verdict and entering judgment for the moving party as a matter of law is whether " there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men [and women] to the conclusion reached by the jury on the basis of the evidence presented at trial. The criteria to be applied in making this assessment are essentially those required of a Trial Judge asked to direct a verdict." Cohen v. Hallmark Cards, Inc, 45 N.Y.2d 493, 499, 382 N.E.2d 1145, 410 N.Y.S.2d 282 (1978). However, " in any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus, a valid question of fact does exist, the court may not conclude that the verdict is as a matter of law not supported by the evidence." Id.

The standard used in determining a motion to a set aside a verdict as against the weight of the evidence is " whether the evidence so preponderated in favor of [the moving party], that the verdict could not have been reached on any fair interpretation of the evidence." Lolik v. Big V Supermarkets, Inc, 86 N.Y.2d 744, 746, 655 N.E.2d 163, 631 N.Y.S.2d 122 (1995) (quoting Moffatt v. Moffatt, 86 A.D.2d 864, 447 N.Y.S.2d 313 [2nd Dept 1982], aff'd 62 N.Y.2d 875, 467 N.E.2d 528, 478 N.Y.S.2d 864 [1984]). This does not involve a question of law, but rather " a discretionary balancing of many factors." Cohen v. Hallmark Cards, Inc, supra at 499.

I. DUTY TO WARN

With respect to Crane's motion for judgment notwithstanding the verdict or in the alternative to set aside the verdict on the grounds that Crane had no duty to warn, for the reasons below, I conclude the motion should be denied. Plaintiff's theory of liability was that Crane, as a manufacturer of valves had a duty to warn of the use of defective products with its valves. Specifically, plaintiff asserted asbestos containing products, including gaskets, packing and insulation at issue here, are dangerous, and therefore defective, and that Crane knew of the dangers and knew such products would be used with its valves. Thus, plaintiff argues, Crane is liable for failing to warn of the dangers of using asbestos containing products in conjunction with its valves.

The evidence showed that during plaintiff's 17 years of service on Navy ships, he was exposed to asbestos not only from products used with Crane's valves, but also from products of other manufacturers. As to Crane, plaintiff established that he was exposed to asbestos during the maintenance and replacement of gaskets, packing and insulation used with Crane's valves. It is undisputed that plaintiff did not allege that the proof would establish that Crane manufactured or supplied either the original or replacement asbestos containing products to which he was exposed. Rather, plaintiff alleged and offered proof that as to some of the valves which Crane supplied to the Navy on the ships where plaintiff served, Crane supplied, although it did not manufacture, the original asbestos containing gaskets and packing. Plaintiff also offered proof that Crane rebranded asbestos sheet gaskets as Cranite and supplied some of its valves to the Navy with such Cranite gaskets, and sold asbestos containing gaskets and replacement parts for its valves. While plaintiff conceded he could not prove that he was exposed to original or replacement asbestos containing products supplied or sold by Crane, he offered this evidence to establish that Crane knew that asbestos containing products would be used with its valves.

In addition to the foregoing, plaintiff offered evidence that Navy drawings for Crane's valves used on the ships where he served specified internal gaskets and packing, and that Navy specifications required these components to be asbestos containing. Moreover, plaintiff produced evidence through Crane's corporate representative, Anthony Pantaleoni, that Crane was aware routine maintenance of the valves required replacement of packing and gaskets, and that such maintenance would release asbestos which would be hazardous. Plaintiff also introduced evidence that Crane knew asbestos insulation would be used with its valves. As to asbestos insulation, plaintiff's evidence showed that Crane published a manual in 1925 showing the use of asbestos containing covering and cement on Crane's valves to prevent the loss of heat, Crane contributed to a1946 Navy Machinery Manual specifying asbestos insulation for high heat applications, and Crane advertised its valves as easier to insulate. Moreover, plaintiff showed that the Navy required valves to be tested by the manufacturer with lagging, and that Crane sold asbestos insulation, advertising that it could be used to cover irregular surfaces like valves. Finally, plaintiff introduced ship records for the ships on which he served, showing that insulation work was performed on valves on the ships.

The Court of Appeals in Liriano v. Hobart Corp, 92 N.Y.2d 232, 700 N.E.2d 303, 677 N.Y.S.2d 764 (1998), explains the law of products liability and negligence as follows: A manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries. A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product. A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known. A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable.

Id at 237 (internal citations omitted).

As stated above, plaintiff's theory of liability was that Crane's valves were defective as Crane failed to warn of the dangers of exposure to asbestos from asbestos containing products used with its valves. Crane argues it is entitled to judgment as a matter of law, as under the New York law of products liability and negligence, a manufacturer has no duty to warn with respect to products it did not manufacture or place into the stream of commerce. Citing Amatulli v. Delhi Construction Corp, 77 N.Y.2d 525, 571 N.E.2d 645, 569 N.Y.S.2d 337 (1991), Crane argues a two-step analysis is used to determine whether a defendant has a duty: first, whether defendant is responsible for placing the product into the stream of commerce; and second, whether the use of the product was...