72 F.3d 1003 (2nd Cir. 1995), 857, Consorti v. Armstrong World Industries, Inc.

Docket Nº:857, Docket 94-7501.
Citation:72 F.3d 1003
Party Name:John CONSORTI & Frances Consorti, Plaintiffs-Appellees, v. ARMSTRONG WORLD INDUSTRIES, INC., formerly known as Armstrong Cork Co.; Combustion Engineering, Inc., et al., Defendants, Owens-Corning Fiberglas Corp., Defendant-Appellant.
Case Date:August 28, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1003

72 F.3d 1003 (2nd Cir. 1995)

John CONSORTI & Frances Consorti, Plaintiffs-Appellees,



Armstrong Cork Co.; Combustion Engineering, Inc.,

et al., Defendants,

Owens-Corning Fiberglas Corp., Defendant-Appellant.

No. 857, Docket 94-7501.

United States Court of Appeals, Second Circuit

August 28, 1995

Argued Nov. 14, 1994.

Amended Dec. 22, 1995.

Page 1004

Steven J. Phillips, New York City (Moshe Maimon, Robert I. Komitor, Alani Golanski, Levy Phillips & Konigsberg, New York City, of counsel), for Plaintiffs-Appellees.

William G. Ballaine, New York City (Mark S. Landman, Joanna L. Watman, Siff Rosen, New York City, of counsel), for Defendant-Appellant.

Before: NEWMAN, Chief Judge, ALTIMARI and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

Owens-Corning Fiberglas Corporation ("OCF"), a fabricator of asbestos pipe-covering products, appeals from jury verdicts in favor of John Consorti, a pipe insulation worker who developed mesothelioma as the result of exposure to asbestos dust, and his wife Frances for loss of consortium. The trial in the Southern District of New York before Robert W. Sweet, Judge, which consumed 25 trial days, consolidated the claims of four plaintiff couples against numerous manufacturers of asbestos products. The jury rendered verdicts for the plaintiffs totalling in excess of $47 million. OCF's main claims on appeal are: (1) that the four cases should not have been consolidated; (2) that the $12 million award for John Consorti's pain and suffering was excessive; and (3) that Frances Consorti had no claim under New York law for loss of consortium because John's noxious exposure occurred prior to their marriage. OCF also challenges the sufficiency of evidence on various points, and numerous rulings made at trial.

We certified the question of Mrs. Consorti's entitlement to sue for loss of consortium to the New York Court of Appeals. Consorti

Page 1005

v. Owens-Corning Fiberglas Corp., 45 F.3d 48, 49 (2d Cir.1995). On October 24, 1995, the Court of Appeals ruled that the facts proved do not give rise to a cause of action for loss of consortium under New York law. Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 634 N.Y.S.2d 18, 657 N.E.2d 1301 (1995). Accordingly, we vacate the award for loss of consortium. We affirm on all other issues except the size of John Consorti's award for pain and suffering, which we believe was beyond what New York law permits.


A detailed account of the case is set forth in the district court's opinion in In re New York Asbestos Litig., 847 F.Supp. 1086 (S.D.N.Y.1994) ("Consorti et al."). We include here only the facts necessary for the discussion below.

John Consorti ("Consorti") was a 40% owner of Veteran Pipe Covering, a family insulator business. He worked for Veteran as a pipe covering insulator from 1960 to 1963, and from 1970 to 1978. From 1963 to 1970, he worked as an insulator for another family business, State Pipe Covering. In 1978, he became Vice-President of Veteran, a position in which he remained until 1992. While working at these businesses, and at least through the mid-1970s, Consorti was exposed to asbestos products, including OCF's product.

Consorti began to suffer back problems in August 1991. In February 1992, he was diagnosed with pleural mesothelioma, an incurable cancer of the lining of the lung. He died after trial, at the age of 51, in November 1993.

Consorti initiated his asbestos personal injury action in August 1992 against numerous defendants in the Southern District of New York. His suit was one of the many thousands of asbestos cases reassigned by the Multi-District Litigation Panel to the Eastern District of Pennsylvania for discovery and pre-trial proceedings. Because of his rapidly advancing illness, his case was deemed an emergency "hardship" and was remanded to the Southern District of New York for expedited trial. It was consolidated for trial in 1993 with three other cases of mesothelioma due to asbestos exposure. In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y.1993) ("New York Asbestos I "); In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y.1993) ("New York Asbestos II "). OCF was a defendant only in the Consorti action.

OCF moved to sever the Consortis' case from the other plaintiffs, and the court denied the motion. New York Asbestos II, 149 F.R.D. at 491.

The trial of the consolidated action began on June 21, 1993. At trial, Consorti proved that his incurable fatal disease was caused by his ingestion and respiration of asbestos fibers. He demonstrated that he had endured enormous suffering from the mesothelioma and was likely to die within a few more months.

On July 22, 1993, after a five-week trial, the jury returned its first special verdict, awarding another plaintiff, Vincent Tabolt, over $13 million in damages, including $7.5 million for approximately 18 months of pain and suffering. After the jury announced the award, Judge Sweet, seeking to encourage the panel after its long days of hard work, said:

You are probably the best jury that has ever been put together in the United States of America. You paid very close attention, you worked very hard.... Thank you very much for the good work you have done.

Outside the presence of the jury, OCF objected to the court's praise of the jury, arguing that the judge's remarks would be taken as approval of the enormous verdict and would influence the verdicts yet to be rendered. The following day, the court denied a motion for a mistrial, but gave a curative instruction:

I wanted to be clear that since you have entered a verdict in one case that I was referring, of course, not to the verdict in any way, about which I have no control, that is entirely in your hands, but, rather, in the way in which you conducted yourselves.... It's the way in which you have conducted yourself, not the verdict itself.

Page 1006

The jury then deliberated on the Consorti case. In summation, plaintiffs' counsel had suggested awards of $8 million for John Consorti's past pain and suffering, plus $4 million for his future suffering. The jury returned a verdict that awarded exactly those amounts. The jury found John's remaining life expectancy to be nine months. OCF was found 7% responsible for Consorti's injuries.

OCF moved for judgment as a matter of law, a new trial, or a remittitur, all of which were denied. However, the court did conclude that the jury's calculation of Frances Consorti's future non-economic loss was against the weight of the evidence and must be set aside. Consorti et al., 847 F.Supp. at 1105. In lieu of a new trial, the parties stipulated to an award for non-economic consortium of $332,000. The district court also reduced the verdict on economic damages for Frances's loss of future consortium to $750,000. Id. at 1106.

After judgment molding, the district court entered judgment against OCF for more than $11.5 million. Id. at 1086. This appeal followed.


OCF appeals numerous aspects of the case below and asks that the judgment be set aside or that remittitur be ordered.

  1. Consolidation

    Relying on a flawed understanding of our holding in Malcolm v. Nat'l Gypsum Co., 995 F.2d 346 (2d Cir.1993), OCF contends that Judge Sweet erred in consolidating the cases of several plaintiffs into a single trial. OCF treats Malcolm as establishing a strong anti-consolidation bias. We take pains to emphasize that we have made no such suggestion. The reversal in Malcolm was attributable to factors unique to that case. We stressed that "[w]e do not wish to be understood as condemning all consolidations of asbestos cases." 995 F.2d at 354. In fact, after observing that the federal courts were "swamped with asbestos suits," 995 F.2d at 348, and that the " 'heyday of individual adjudication of asbestos mass tort lawsuits has long passed,' " id. (quoting In re Asbestos Prods. Liab. Litig. (No. VI), 771 F.Supp. 415, 419 (J.P.M.L.1991)), we indicated that another consolidation of a substantially larger number of asbestos cases coming from the Brooklyn Navy Yard (which were not appealed on that ground) would have passed muster. 995 F.2d at 353.

    Consolidation is a valuable and important tool of judicial administration. This is especially true when the courts are overwhelmed with huge numbers of cases which involve substantially the same questions of fact, as happens when large numbers of plaintiffs allege that they have developed similar illnesses in reaction to a particular toxic substance. See Fed.R.Civ.P. 42(a). In such circumstances, consolidation permits the federal court to furnish trials in hundreds, even thousands of cases it might otherwise not reach for many years. If carefully and properly administered, as it was by Judge Sweet below, consolidation is also capable of producing, with efficiency and greatly reduced expense for all parties, a fairer, more rational and evenhanded delivery of justice.

    We noted in Malcolm that at that time more than 200,000 asbestos cases had been filed in state and federal courts, with as many as 250,000 additional cases expected to come. 995 F.2d at 348. It requires little imagination to recognize that without consolidation the courts are simply incapable of handling litigation of such volume. The waste of time and expense involved in empaneling separate juries to decide the same sorts of questions over and over again is staggering. This is all the more true when one recognizes that each successive jury must be educated by expert witnesses to understand the toxicity of asbestos fibers, the etiology of asbestos-induced diseases, the state of the art regarding the industry's knowledge of these dangers through the years, and the economic issues involving loss of services and future income that recur so frequently in these cases.

    Needless to say, efficiency cannot be permitted to...

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