9 F.Supp.2d 307 (S.D.N.Y. 1998), 92 Civ. 6377, In re Joint Eastern and Southern Dist. Asbestos Litigation

Docket Nº92 Civ. 6377(RWS).
Citation9 F.Supp.2d 307
Party NameIn re JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION. John CONSORTI and Frances Consorti, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants.
Case DateJune 15, 1998
CourtUnited States District Courts, 2nd Circuit, Southern District of New York

Page 307

9 F.Supp.2d 307 (S.D.N.Y. 1998)

In re JOINT EASTERN AND

SOUTHERN DISTRICT ASBESTOS

LITIGATION.

John CONSORTI and Frances Consorti, Plaintiffs,

v.

ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants.

No. 92 Civ. 6377(RWS).

United States District Court, S.D. New York.

June 15, 1998

Page 308

Levy Phillips & Konigsberg (Moshe Maimon, of counsel), New York City, for plaintiffs.

Ddebevoise & Plimpton (Mark P. Goodman, Karis S. Schwartz, of counsel), New York City (Tucker & Associates, of counsel), Randolph, MA, for defendant Owens Corning.

OPINION

SWEET, District Judge.

After twenty-five days of trial, the jury awarded plaintiff John Consorti ("Consorti") $12 million for pain and suffering. Defendant Owens Corning Fiberglas Corporation ("OCF") now moves for a new trial or a remittitur reducing Consorti's pain and suffering to an amount no greater than $3.5 million. Although the motion for a new trial or, in the alternative, a remittitur had been previously denied, revisitation of the issue in light of the United States Supreme Court's decision in Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), is required. The Second Circuit has remanded the case to this Court for reconsideration of the motion for remittitur in conformity with the opinion of the Supreme Court.

For the reasons set forth below, OCF's motion for a new trial is granted. However, its motion for remittitur of at least $8.5 million is denied. The remitted amount of Consorti's pain and suffering award, if Consorti acquiesces, will be set at $5 million.

Prior Proceedings and Facts

The procedural path that this case followed from its filing through trial and the first set of post-trial motions, as well as a detailed account of the facts, are fully recounted in prior opinions, familiarity with which is assumed. See In re New York Asbestos Litig., 847 F.Supp. 1086 (S.D.N.Y.1994); In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y.1993); In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y.1993). The prior proceedings and facts relevant to the instant motion are set forth below.

Consorti owned 40% of Veteran Pipe Covering ("Veteran"), 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 at 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 this asbestos personal injury action against numerous defendants in this district in 1992. His suit was one of the many thousands of asbestos cases reassigned by the Multidistrict Litigation Panel to the Eastern District of Pennsylvania for discovery and pretrial proceedings. Because of his rapidly advancing illness, Consorti's case was remanded to this district for expedited trial.

The trial of Consorti's action, which had been consolidated with three other cases of mesothelioma due to asbestos exposure, 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.

Page 309

On July 23, 1993, the jury in this action returned a verdict in favor of Consorti and his wife, Frances, against OCF. In doing so, the jury awarded nonpecuniary damages of $18 million, $12 million of which was awarded to Consorti for 32 months of pain and suffering. The jury awarded $8 million for approximately 23 months of pain and suffering prior to trial, and $4 million for what it estimated would be the suffering Consorti would endure during the final nine months of his life. The instant issue concerns the $12 million pain and suffering award.

On January 21, 1994, this Court denied a motion for new trial or remittitur, finding that the award did not "shock the conscience" of the court, which "must not remain fixed in time but must rather retain the capacity for change based on the experience of others and the determinations made in particular cases." In re New York Asbestos Litig., 847 F.Supp. 1086, 1096 (S.D.N.Y.1994) [hereinafter Consorti I ] The holding was based largely on a comparison to awards permitted by other federal courts in asbestos cases filed in New York. See id. at 1095-98, 1141-43. In particular, the decision relied on the denial of remittitur of a $4.5 million award for pain and suffering in a mesothelioma case of 11 months duration. See id. at 1096-97, 1142-44 (citing In re Joint E. & S. Dists. Asbestos Litig., 798 F.Supp. 925, 937-38 (E.D.N.Y.1992), rev'd on other grounds, 995 F.2d 346 (2d Cir. 1993) [hereinafter McPadden ]). Consorti I found that the award to Consorti did not shock the conscience based on its observation that the plaintiff in McPadden received a pain and suffering award of approximately $409,000 per month, see Consorti I, 847 F.Supp. at 1097, as compared to Consorti's award of $375,000 per month.

The Second Circuit reversed, ruling that this Court had erred by (i) applying the "shock the conscience" standard rather than the less deferential "deviates materially from reasonable compensation" standard applied in the New York courts, see Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1009-15 (2d Cir. 1995) [hereinafter Consorti II ] (citing CPLR § 5501(c)), and (ii) relying largely on federal rather than state decisions in assessing the reasonableness of the award. See id. at 1012-13. The Second Circuit held that the appropriate comparison was to awards in mesothelioma cases of similar duration to Consorti's which were considered by Justice Freedman in cases litigated in New York Supreme Court. See id. at 1014. Finding that pain and suffering awards in New York state courts in comparable cases ranged from approximately $1 million to a maximum of $3 million, the Second Circuit concluded that "an award exceeding $3.5 million would deviate materially from what is deemed reasonable under New York law." Id. at 1015.1

On July 1, 1996, the United States Supreme Court granted certiorari, vacated the Second Circuit's decision in Consorti II, and remanded the case to the Second Circuit for further consideration in light of Gasperini v. Center of Humanities, Inc., 518 U.S. 415, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). See Consorti v. Owens-Corning Fiberglas Corp., 518 U.S. 1031, 116 S.Ct. 2576, 135 L.Ed.2d 1091 [hereinafter Consorti III ].

In Gasperini, the Supreme Court affirmed the Second Circuit's holding that, in a diversity action, state law governs the issue of remittitur, but reversed, finding it error for the Second Circuit itself to have applied the New York state court standard, CPLR § 5501(c) (as the Second Circuit also did in the instant case), instead of reviewing the district court's application of § 5501(c) for abuse of discretion. See Gasperini, 116 S.Ct. at 2225.2

Following the Supreme Court's direction in Gasperini, the Second Circuit, on December 16, 1996, remanded the instant matter so that

Page 310

this Court could "reconsider the motion for remittitur, 'check the jury's verdict against the relevant New York decisions' and 'test [it] against CPLR § 5501(c)'s "deviates materially" standard.' " Consorti v. Armstrong World Indus. Inc., 103 F.3d 2, 4-5 (2d Cir. 1995) [hereinafter Consorti IV ]. The remand order clarifies that in assessing the size of Consorti's pain and suffering award, this Court must look to the "governing decisions of the New York state courts" rather than the "federal court precedents" that guided the earlier analysis. Id. at 4.

OCF filed the instant motion requesting a new trial or, in the alternative, a remittitur reducing Consorti's $12 million pain and suffering award to no greater than $3.5 million on February 2, 1998. Oral arguments were heard on April 1, 1998, at which time the motion was deemed fully submitted.

Discussion

I. Legal Standard Applicable in Deciding OCF's Motion for New Trial or Remittitur

In deciding a motion challenging the size of a verdict and requesting a new trial on damages, the Supreme Court has determined that a federal district court sitting in diversity should apply state law standards. See Gasperini, 116 S.Ct. at 2224 n. 22. In New York, this standard is set by New York's CPLR § 5501(c), which provides that appellate courts are to review jury damage awards under a "deviates materially" standard. This is also the standard to be applied by New York trial courts. See Gasperini, 116 S.Ct. at 2218 (citing, inter alia, Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440 (4th Dep't1994); Lightfoot v. Union Carbide Corp., 901 F.Supp. 166, 169 (S.D.N.Y.1995)). Because Gasperini directs federal district courts applying New York law to employ the "deviates materially" standard rather than the federal courts' more rigorous "shock the conscience" standard to questions of the adequacy of a verdict, that standard will be utilized in reviewing Consorti's $12 million pain and suffering award.

The standard " 'for determining excessiveness and appropriateness of remittitur is somewhat ambiguous.' " Gasperini, 116 S.Ct. at 2217 (quoting Consorti II, 72 F.3d at 1012-13). Historically, New York courts, like those in the federal system and the majority of jurisdictions in the...

To continue reading

Request your trial
15 practice notes
  • 705 F.Supp.2d 220 (E.D.N.Y. 2010), C. A. CV-05-3580 (DGT)(RLM), Cantu v. Flanigan
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • April 14, 2010
    ..." one of the most difficult decisions required to be made by a court." In re Joint Eastern and Southern Dist. Asbestos Litig., 9 F.Supp.2d 307, 311 (S.D.N.Y.1998) (internal citation omitted). " The task at hand requires not only the determination of sufficient compensation to......
  • 906 F.Supp.2d 274 (S.D.N.Y. 2012), 09 C 10580(MEA), Allam v. Meyers
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • November 19, 2012
    ...for past medical bills. Okraynets, 555 F.Supp.2d at 435 (internal quotation omitted); In re Joint E. & S. Dist. Asbestos Litig., 9 F.Supp.2d 307, 311-12 (S.D.N.Y.1998); see McDougald, 536 N.E.2d at 374-75, 538 N.Y.S.2d at 939-40 (explaining our indulgence in the legal fiction that money......
  • 705 F.Supp.2d 287 (S.D.N.Y. 2010), 05 Civ. 751 (RJS), Adebiyi v. Yankee Fiber Control, Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • April 5, 2010
    ...former ‘ shocks the conscience’ standard for reviewing and altering jury awards." In re Joint E. & S. Dist. Asbestos Litig., 9 F.Supp.2d 307, 310 (S.D.N.Y.1998). Nevertheless, in exercising its remittitur power, the Court must use the " least intrusive standard for calculating......
  • 96 F.Supp.2d 352 (S.D.N.Y. 2000), 94 Civ. 4397, Hamilton v. Garlock, Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 18, 2000
    ...case did not "deviate[] materially from what would be reasonable compensation." Consorti v. Armstrong World Indus., Inc., 9 F.Supp.2d 307 (S.D.N.Y.1998). The instant verdict of over $4 million (rendered in 1998), when submitted to the same "totality of the circumstances appro......
  • Request a trial to view additional results
15 cases
  • 705 F.Supp.2d 220 (E.D.N.Y. 2010), C. A. CV-05-3580 (DGT)(RLM), Cantu v. Flanigan
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • April 14, 2010
    ..." one of the most difficult decisions required to be made by a court." In re Joint Eastern and Southern Dist. Asbestos Litig., 9 F.Supp.2d 307, 311 (S.D.N.Y.1998) (internal citation omitted). " The task at hand requires not only the determination of sufficient compensation to......
  • 906 F.Supp.2d 274 (S.D.N.Y. 2012), 09 C 10580(MEA), Allam v. Meyers
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • November 19, 2012
    ...for past medical bills. Okraynets, 555 F.Supp.2d at 435 (internal quotation omitted); In re Joint E. & S. Dist. Asbestos Litig., 9 F.Supp.2d 307, 311-12 (S.D.N.Y.1998); see McDougald, 536 N.E.2d at 374-75, 538 N.Y.S.2d at 939-40 (explaining our indulgence in the legal fiction that money......
  • 705 F.Supp.2d 287 (S.D.N.Y. 2010), 05 Civ. 751 (RJS), Adebiyi v. Yankee Fiber Control, Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • April 5, 2010
    ...former ‘ shocks the conscience’ standard for reviewing and altering jury awards." In re Joint E. & S. Dist. Asbestos Litig., 9 F.Supp.2d 307, 310 (S.D.N.Y.1998). Nevertheless, in exercising its remittitur power, the Court must use the " least intrusive standard for calculating......
  • 96 F.Supp.2d 352 (S.D.N.Y. 2000), 94 Civ. 4397, Hamilton v. Garlock, Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 18, 2000
    ...case did not "deviate[] materially from what would be reasonable compensation." Consorti v. Armstrong World Indus., Inc., 9 F.Supp.2d 307 (S.D.N.Y.1998). The instant verdict of over $4 million (rendered in 1998), when submitted to the same "totality of the circumstances appro......
  • Request a trial to view additional results