986 F.Supp. 761 (S.D.N.Y. 1997), 87 Civ. 8085, In re Asbestos Litigation

Docket Nº87 Civ. 8085(RWS), 90 Civ. 3473(RWS) and 92 Civ. 3901(RWS).
Citation986 F.Supp. 761
Party NameIn re ASBESTOS LITIGATION This Document Relates to Greff, McPadden, Ciletti.
Case DateNovember 05, 1997
CourtUnited States District Courts, 2nd Circuit, Southern District of New York

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986 F.Supp. 761 (S.D.N.Y. 1997)

In re ASBESTOS LITIGATION

This Document Relates to Greff, McPadden, Ciletti.

Nos. 87 Civ. 8085(RWS), 90 Civ. 3473(RWS) and 92 Civ. 3901(RWS).

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

Nov. 5, 1997

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[Copyrighted Material Omitted]

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

Thompson, McNaboe, Ashley & Bull, Portland, ME, Thomas R. McNaboe, of counsel, for defendant.

OPINION

SWEET, Senior District Judge.

Defendant Raymark Industries, Inc. ("Raymark") has brought a trio of post-trial motions in response to a jury verdict entered in favor of three plaintiffs in these consolidated asbestos actions. First, Raymark has moved for judgment as a matter of law pursuant to Rule 50(b), Fed.R.Civ.P., or in the alternative, grant of a new trial, pursuant to

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Rule 59(a), Fed.R.Civ.P., as against Helen Greff, Ann McPadden, and Rosalie Ciletti, plaintiffs in this asbestos litigation, (collectively "Plaintiffs"). Second, Raymark has moved for amendment of the judgment, pursuant to Rule 59(e), Fed.R.Civ.P., in all three actions. Finally, Raymark has moved for entry of judgment, pursuant to Rule 58, Fed.R.Civ.P., in favor of Raymark and against Empire Ace, Owens-Corning Fiberglas, and Manville Trust in the action brought by Rosalie Ciletti. Plaintiffs have cross-moved for judgment as a matter of law and to amend the judgments in all three actions. For the reasons set forth below, Plaintiffs' motion is denied, and Raymark's motions for new trial, amendment of the judgment and entry of judgment are denied. Raymark's motion for judgment as a matter of law is granted only as to the setting aside of an award for loss of parental consortium in the McPadden action.

Facts and Prior Proceedings

Ciletti, 92 Civ. 3901, (" Ciletti "), Greff, 87 Civ. 8085, (" Greff "), and McPadden, 90 Civ. 3473, (" McPadden "), are three of the asbestos cases that have been supervised by the Multi-District Litigation Panel for discovery and pretrial purposes. Each of these actions was originally filed in the Southern District of New York and subsequently transferred by order of the Multidistrict Litigation Panel to the Honorable Charles Weiner of the Eastern District of Pennsylvania. They were then transferred back to this Court for trial purposes on the basis of hardship arising out of trial delay.

The three actions were consolidated by opinion dated March 28, 1997, along with two others, Strafford, 92 Civ. 3900, (" Strafford ") and Moore, 88 Civ. 4214 (" Moore "). In re Asbestos Litigation, 173 F.R.D. 81 (S.D.N.Y.1997). Of the consolidated actions, Ciletti, Greff, McPadden and Strafford proceeded to trial against defendants Raymark and John Crane, Inc., ("John Crane"). A sixteen day trial was held between May 20, 1997 and June 20, 1997.

The claims in Ciletti are brought by Rosalie Ciletti, the widow of Alfred Ciletti. Mr. Ciletti worked as a sheet-metal worker at various shipyards between 1940 and 1973, including the Brooklyn Naval Shipyard from 1955 to 1966. Mr. Ciletti worked aboard several Navy vessels on which asbestos products manufactured by or sold by Raymark's predecessor, Raybestos Manhattan, were actually used. Testimony established that Raybestos Manhattan asbestos cloth was used on these vessels during sheet-metal work. In March of 1992, Mr. Ciletti was diagnosed with malignant mesothelioma, a cancer uniquely associated with exposure to asbestos, the symptoms of which had begun during the summer of 1991. On July 1, 1992, Mr. Ciletti died as a result of his cancer, survived by plaintiff Rosalie Ciletti, three children and a grandson.

The claims in Greff are brought by Helen Greff, the widow of Joseph Greff. Mr. Greff worked as a welder at a shipyard between 1941 and 1984. Proofs at trial established that Mr. Greff regularly used asbestos cloth to protect himself from welding sparks. Testimony of Mr. Greff's co-workers established that Raymark's asbestos cloth was widely used at the shipyards where Mr. Greff worked. Supply buyers for both the Staten Island and Hoboken shipyards testified that they purchased asbestos products from Raybestos Manhattan. Mr. Greff developed malignant mesothelioma in the summer of 1985, and died from the cancer on March 25, 1986. He was survived by plaintiff Helen Greff, three children and six grandchildren.

The claims in McPadden are brought by Ann McPadden, the widow of Martin McPadden. Mr. McPadden worked as a mechanic and steam fitter between 1957 and 1973 on several naval ships and in several power-generating stations. Testimony established that asbestos cloth sold and manufactured by Raybestos Manhattan was used in shipyards during the time Mr. McPadden was serving aboard ships undergoing repair. Testimony also established Mr. McPadden's exposure to packing material distributed by John Crane, in which Raybestos Manhattan asbestos yarn was used. Mr. McPadden was diagnosed with malignant mesothelioma in 1989. He died a little over one year after his diagnosis, on October 6, 1990. He was survived by plaintiff Ann McPadden, and his two daughters, one twenty-five years and the other fifteen years old at the time of his death.

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On June 13, the jury returned a verdict on liability for Plaintiffs in Ciletti, Greff and McPadden against defendant Raymark only. The jury found for defendant John Crane in all four actions, and found for defendant Raymark in Strafford. On June 16, the jury returned a verdict on damages in Ciletti, Greff and McPadden. All three Plaintiffs also received costs and post-judgment interest. Judgment was entered on June 20, 1997. The post-trial motions were filed in July and August. Opposition papers, cross-motion and replies in the motions were fully submitted by October 1, 1997.

Discussion

I. Raymark's Motion for Judgment as a Matter of Law or New Trial

Motion for judgment as a matter of law is granted where:

(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it.

Cruz v. Local Union Number 3 of IBEW, 34 F.3d 1148, 1154 (2d Cir.1994) (quoting Bauer v. Raymark Indus., Inc., 849 F.2d 790, 792 (2d Cir.1988)); accord Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537, 542 (2d Cir.1994); Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir.1993); Mattivi v. South African Marine Corp, "Huguenot", 618 F.2d 163, 168 (2d Cir.1980). The evidence must be viewed in the light most favorable to the non-moving party and must draw all reasonable inferences in its favor. Taylor v. National Railroad Passenger Corp., 868 F.Supp. 479, 482 (E.D.N.Y.1994) (citing Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 60 (2d Cir.1993)).

A post-trial motion for judgment as a matter of law may not be asserted unless such a motion has also been made prior to submission of the case to the jury. Fed.R.Civ.P. 50(b); Piesco v. Koch, 12 F.3d 332, 340 (2d Cir.1993): Taylor, 868 F.Supp. at 482. The grounds supporting the earlier motion must be specifically articulated, and may include explicit references to materials and arguments previously supplied to the court. Piesco, 12 F.3d at 340. The post-verdict motion for judgment as a matter of law may not assert any grounds which were not raised in the earlier motion. Lambert v. Genesee Hospital, 10 F.3d 46, 54 (2d Cir.1993); Hilord Chemical Corp. v. Ricoh Electronics, Inc., 875 F.2d 32, 37-38 (2d Cir.1989). The only exception to the requirement of a pre-verdict motion arises where denial of judgment as a matter of law would result in "manifest injustice." Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir.1994).

The standard for granting a new trial is less stringent than that for judgment as a matter of law. Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir.1987); Bseirani v. Mahshie, 881 F.Supp. 778, 783 (N.D.N.Y.1995) aff'd, 107 F.3d 2 (2d Cir.1997). On a motion for new trial "the judge may set aside the verdict even though there is substantial evidence to support it." 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d, § 2806 at 65 (2d ed.1995). The court may weigh the evidence for itself without viewing it in the light most favorable to the verdict winner. Id. at 67; Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir.1992); Paper Corp. of the U.S. v. Schoeller Technical Papers, Inc., 807 F.Supp. 337, 347 (S.D.N.Y.1992). Still, new trial may only be granted if "the court is convinced that the jury has reached a seriously erroneous result, or that the verdict is against the weight of the evidence, making its enforcement a miscarriage of justice." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir.1988); Taylor v. National Railroad Passenger Corporation, 868 F.Supp. 479, 484 (E.D.N.Y.1994). Where, as here, a party moves jointly under Federal Rules of Civil Procedure 50(b) and 59(a), the court must rule separately on each motion. 9A Charles Alan Wright & Arthur R. Miller, § 2539 at 361; Taylor, 868 F.Supp. at 482.

A. The Court Did Not Err in Permitting Claim of Design Defect to Go to the Jury

Raymark contends that the Court should have directed a defense verdict as to Plaintiffs'

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design defect claims because case law has established that design defect actions are barred where the defendant has presented a military contractor defense, and Raymark asserted certain elements of that defense.

The theory of design defect permits a manufacturer to be found strictly liable for placing an unreasonably...

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9 practice notes
  • 36 Misc.3d 1234(A), 2012-51597, In re New York City Asbestos Litigation Dummitt
    • United States
    • August 20, 2012
    ...(Sup Ct, N.Y. Co 2007); Hamilton v. Garlock, Inc, 96 F.Supp.2d 352 (SD N.Y. 2000); In re Asbestos Litigation (Greff, McPadden, Ciletti), 986 F.Supp. 761 (SD N.Y. 1997). VIII. CONSOLIDATION Crane moves for a new trial on the ground that the consolidation of plaintiff's case with six other in......
  • 9 F.Supp.2d 307 (S.D.N.Y. 1998), 92 Civ. 6377, In re Joint Eastern and Southern Dist. Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • June 15, 1998
    ...'the best guide for a federal court' " in determining " 'at what point awards become excessive.' " In re Asbestos Litig., 986 F.Supp. 761, 770 (S.D.N.Y.1997) (quoting Consorti II, 72 F.3d at 1013). Page 314 While OCF's first, third, and fourth reasons are persuasive, the seco......
  • 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
    ...here. See Caruolo v. AC and S, Inc., 1999 WL 147740, at *2 (S.D.N.Y. Mar.18, 1999); In re Asbestos Litigation (Greff, et al.), 986 F.Supp. 761, 765 (S.D.N.Y.1997). Simply stated, the evidence offered by Hamilton was sufficient to support the verdict against Atlas Turner. B. The Evidence Of ......
  • 37 Misc.3d 1206(A), 2012-51905, Konstantin v. 630 Third Ave. Associates
    • United States
    • September 20, 2012
    ...(Sup Ct, N.Y. Co 2007); Hamiliton v. Garlock, Inc, 96 F.Supp.2d 352 (SDNY 2000); In re Asbestos Litigation (Greff, McPadden, Ciletti), 986 F.Supp. 761 (SDNY 1997). Finally, nothing in the record suggests that the recklessness charge had an impact on the amount of pain and suffering awarded ......
  • Request a trial to view additional results
9 cases
  • 36 Misc.3d 1234(A), 2012-51597, In re New York City Asbestos Litigation Dummitt
    • United States
    • August 20, 2012
    ...(Sup Ct, N.Y. Co 2007); Hamilton v. Garlock, Inc, 96 F.Supp.2d 352 (SD N.Y. 2000); In re Asbestos Litigation (Greff, McPadden, Ciletti), 986 F.Supp. 761 (SD N.Y. 1997). VIII. CONSOLIDATION Crane moves for a new trial on the ground that the consolidation of plaintiff's case with six other in......
  • 9 F.Supp.2d 307 (S.D.N.Y. 1998), 92 Civ. 6377, In re Joint Eastern and Southern Dist. Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • June 15, 1998
    ...'the best guide for a federal court' " in determining " 'at what point awards become excessive.' " In re Asbestos Litig., 986 F.Supp. 761, 770 (S.D.N.Y.1997) (quoting Consorti II, 72 F.3d at 1013). Page 314 While OCF's first, third, and fourth reasons are persuasive, the seco......
  • 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
    ...here. See Caruolo v. AC and S, Inc., 1999 WL 147740, at *2 (S.D.N.Y. Mar.18, 1999); In re Asbestos Litigation (Greff, et al.), 986 F.Supp. 761, 765 (S.D.N.Y.1997). Simply stated, the evidence offered by Hamilton was sufficient to support the verdict against Atlas Turner. B. The Evidence Of ......
  • 37 Misc.3d 1206(A), 2012-51905, Konstantin v. 630 Third Ave. Associates
    • United States
    • September 20, 2012
    ...(Sup Ct, N.Y. Co 2007); Hamiliton v. Garlock, Inc, 96 F.Supp.2d 352 (SDNY 2000); In re Asbestos Litigation (Greff, McPadden, Ciletti), 986 F.Supp. 761 (SDNY 1997). Finally, nothing in the record suggests that the recklessness charge had an impact on the amount of pain and suffering awarded ......
  • Request a trial to view additional results