Brooklyn Navy Yard Asbestos Litigation, In re, No. 1197

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtOAKES
Citation971 F.2d 831
PartiesProd.Liab.Rep. (CCH) P 13,245 In re BROOKLYN NAVY YARD ASBESTOS LITIGATION (Joint Eastern and Southern District Asbestos Litigation). * , Docket 91-9325(L) * .
Decision Date30 June 1992
Docket NumberNo. 1197

Page 831

971 F.2d 831
Prod.Liab.Rep. (CCH) P 13,245
In re BROOKLYN NAVY YARD ASBESTOS LITIGATION (Joint Eastern
and Southern District Asbestos Litigation).
No. 1197 *, Docket 91-9325(L) *.
United States Court of Appeals,
Second Circuit.
Argued April 21, 1992.
Decided June 30, 1992.

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Steven J. Phillips, New York City (Alani Golanski, Moshe Maimon, Levy, Phillips & Konigsberg, of counsel), for plaintiffs-appellees-cross-appellants Rose Failla, Joanna Baumann, Helen Dacey, Carolyn Foglia, Vendura L. Foglia, Dominick Fusco, Eileen Granelle, Mollie Minan, Ann Pesce, Eugene Schepis, Kenneth Alexander Sandberg,

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Morris Thierman, Nancy Thierman, Arnold Sherman Whitten, Catherine Whitten, David Shopkorn, Charlotte Shopkorn and Katherine Falteisek, for plaintiff-appellant Goldie Feldman, and for plaintiffs-appellants-cross-appellees Perrell V. Barone and Roberta Barone.

Jerry Kristal, Greitzer & Locks, New York City, of counsel, for plaintiffs-appellees Thomas P. Walsh and Teresa Walsh, and for plaintiffs-appellees-cross-appellants Bertram S. Bermar, Rita Liebson, Vernon Green, Salvatore Tecchio and Rose Tecchio.

John A. Collins, Michael Ponterio, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo, N.Y., of counsel, for plaintiffs-appellees-cross-appellants Ronald P. Bellizzi, Michael J. Boland, Mary Ellen Boland, Vincent Lentini, Connie Lentini, Joan Wilson Newton, Leonard Saks, Evelyn Saks, Lorraine Apt, Annette Epstein and Lucia Ferraiuolo.

Abby J. Resnick, Sullivan & Liapakis, New York City, of counsel, for plaintiffs-appellees-cross-appellants John Caliendo, Mary Caliendo, Hilda Ehrlich, John Morgan, Rose Morgan, Gregory Pirozzi, Audrey Pirozzi, Phyllis E. Yardley, Michael Rafaniello and Florence Rafaniello.

Jay W. Dankner, Lipsig, Sullivan & Liapakis, New York City, of counsel, for plaintiffs-appellees-cross-appellants Santo Fiumano, Larry Gewirts, Abe Goldberg and Paula Goldberg.

Louis C. Woolf, Knoxville, Tenn. (Baker, Worthington, Crossley, Stansberry & Woolf, of counsel), for defendant-appellant-cross-appellee Owens-Illinois, Inc.

Frank Santoro, Joyce A. Lagnese, Danaher, Tedford, Lagnese & Neal, Hartford, Conn., of counsel, for defendants-appellants-cross-appellees Pittsburgh Corning Corp. and Fibreboard Corp.

Andrew T. Berry, Newark, N.J. (Richard P. O'Leary, McCarter & English, of counsel), for defendants-appellants-cross-appellees Owens-Illinois, Inc. and Keene Corp.

David Henry Sculnick, Steven Sold, Gordon & Silber, New York City, of counsel, for defendant-appellant-cross-appellee Manville Personal Injury Settlement Trust.

Before: OAKES, Chief Judge, LUMBARD and WALKER, Circuit Judges.

OAKES, Chief Judge:

BACKGROUND

From the 1930's through 1966, thousands of workers at the New York Naval Shipyard, commonly known as the Brooklyn Navy Yard (BNY), breathed air laden with carcinogenic asbestos fibers. Manufacturers of the asbestos-containing products used at BNY did not warn users of the hazards posed by asbestos dust. Nor did the Navy warn its workers of those hazards, despite its own knowledge of the danger of asbestos. Decades after exposure, many of these workers found themselves with asbestos-related injuries--lung cancer, colon cancer, mesothelioma, laryngeal cancer, pleural disease, asbestosis.

New York amended its statute of limitations in 1986 to start the running of the statute from discovery of the disease. New York Toxic Tort Reform Act of 1986, L.1986, ch. 682, § 2 (codified at N.Y.C.P.L.R. § 214-c (McKinney 1990)). The legislation explicitly revived previously barred asbestos actions. L.1986, ch. 682, § 4, reprinted after N.Y.C.P.L.R. § 214-c (McKinney 1990). Prior to 1986, the New York statute of limitations ran from the date of exposure. See In re Joint Eastern & Southern Dist. Asbestos Litig.; Maiorana v. Owens-Corning Fiberglas Corp., 964 F.2d 92, 93-94 (2d Cir.1992). New York's state and federal courts were soon inundated with previously barred asbestos suits. Of several thousand jointly managed asbestos actions filed in the Eastern District of New York, the Southern District of New York, and the Supreme Court of the State of New York, roughly six hundred involved workers exposed to asbestos at BNY. The BNY cases were consolidated by a joint federal-state order. Through the efforts of Referee and Settlement Master Kenneth R. Feinberg, and under the supervision of Judge Jack B. Weinstein and Justice Helen E. Freedman, most

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of the BNY plaintiffs settled most of their claims.

The BNY cases heading for trial were divided into three categories: Phase I for cases in which over 90% of plaintiffs' asbestos exposure occurred at BNY; Phase II for cases in which 50% to 90% of exposure occurred there; and Phase III for the remainder. The sixty-four Phase I cases were tried jointly in federal court before Judge Weinstein. 1 Later, the fifteen Phase II and Phase III cases went to consolidated trial, before the same judge and jury. The trials were handled with utmost care to ensure that the jurors could assimilate the vast amounts of information necessary to assess the claims. See In re Eastern & Southern Dists. Asbestos Litig., 772 F.Supp. 1380, 1386 (E. & S.D.N.Y.1991) (describing jury selection, documentary materials provided to jurors, interim summations and charges, and other procedures designed to enhance efficiency and juror performance). In Phase I, after four months of trial and four weeks of deliberation, the jury rendered fifty-two verdicts in favor of plaintiffs, with damages in excess of thirty million dollars, and twelve verdicts for the defense. In Phases II and III, the jury returned twelve plaintiffs' verdicts, with damages over seven million dollars, and three defense verdicts. The jury awarded no punitive damages, but found every company that shipped asbestos-containing products to BNY liable to at least some plaintiff for failure to warn workers of asbestos's health hazards.

Judge Weinstein then embarked upon the tortuous course charted by New York statutes for molding those jury verdicts into judgments. See N.Y.C.P.L.R. arts. 14 and 16 (McKinney 1976 & Supp.1992), 50 and 50-B (McKinney 1963 & Supp.1992); N.Y.E.P.T.L. § 5-4.3(a) (McKinney Supp.1992); N.Y.G.O.L. § 15-108 (McKinney 1989). These computations determined how the judgments would be affected by settlements and bankruptcies, as well as the assessment of prejudgment interest.

Defendants now appeal, arguing that plaintiffs' evidence of causation was insufficient as a matter of law and that the court failed adequately to instruct the jury regarding the doctrine of superseding cause, and challenging a number of the court's interpretations and applications of New York's verdict-molding statutes. Plaintiffs cross-appeal, challenging among other things the court's decision to exclude their design defect claim, and, like defendants, criticizing various of the district court's verdict-molding decisions. In addition, two individual plaintiffs raise issues in addition to those raised by the plaintiffs as a group. Plaintiff Feldman urges that the jury's finding that her husband did not die from asbestos-related illness was against the weight of the evidence, warranting a new trial; plaintiffs Barone attack their pain and suffering award as shockingly low.

DISCUSSION

After addressing several issues concerning the conduct of the trial, we will turn to the heart of the appeal--issues concerning the molding of the verdicts under New York law. Lastly, we will consider the individual appeals of plaintiffs Feldman and Barone.

I. Trial Issues

A. Causation

First, defendants argue that plaintiffs' proof of causation was insufficient as a matter of law. They point not to the medical aspect of causation, but rather to product identification. Defendants contend that plaintiffs failed to identify the exact manufacturers whose products injured each plaintiff, and that New York law requires such proof in a products liability action.

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We have addressed the identical argument twice before, first in Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990), and more recently in O'Brien v. National Gypsum Co., 944 F.2d 69 (2d Cir.1991), each time finding proof of causation sufficient in the absence of identification of the precise product that injured a given plaintiff. Each of those cases involved asbestos exposure at BNY. In dealing with the BNY asbestos cases, it would have defied reason to require each plaintiff to prove causation as specifically as defendants suggest. We therefore upheld a jury's finding of causation in Johnson based on the circumstantial evidence that the defendants' asbestos-containing products were present on particular ships and that asbestos fibers were " '[a]ll over the deck.' " 899 F.2d at 1286. And in O'Brien we upheld the jury's causation finding based on evidence that the decedent died from an asbestos-related disease, and "testimony that asbestos products were used interchangeably on virtually all of the warships under construction in the Navy Yard." 944 F.2d at 73; see also Roehling v. National Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225, 1228 (4th Cir.1986) ("We disagree with the district court that direct evidence is needed showing that [plaintiff] identified the asbestos products or that the witnesses knew, had contact with, or recognized [plaintiff] as being on the job site. Such burden is unreasonable."); Lockwood v. AC & S, Inc., 109 Wash.2d 235, 246-47, 744 P.2d 605, 612 (1987).

In considering a contention that the evidence was insufficient to support plaintiffs' claim, we view the evidence in the light most favorable to the plaintiffs. O'Brien, 944 F.2d at 72 (citing Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1042 (2d Cir.), cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976)). Viewed in that light, the evidence at trial established that...

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184 practice notes
  • Dacosta v. City of N.Y., 15–CV–5174
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 8, 2017
    ...the best indicators of how it would decide are often the decisions of lower state courts." In re Brooklyn Navy Yard Asbestos Litig. , 971 F.2d 831, 850 (2d Cir. 1992) (internal citations omitted).Not every New York state court interprets the term "mistake" in the state relation-back test in......
  • State of N.Y. v. Blank, Nos. 1092-1094
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 13, 1994
    ...772 F.Supp. 1380, 1389 (E. & S.D.N.Y.1991) (predicting New York law), rev'd on other grounds, In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Cir.1992). We will, of course, give greatest weight "to the pronouncements of the New York Court of Appeals." Travelers, 14 F.3d at 119. B......
  • Brady v. Wal-Mart Stores, Inc., No. CV 03-3843(JO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 29, 2006
    ...how it "would" do so. O'Neill v. City of Auburn, 23 F.3d 685, 689 (2d Cir.1994); see also In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 850 (2d Cir. 1992). Although not binding, the "best indicators of how it would decide are often the decisions of lower state courts." Id. I t......
  • Chase Manhattan Bank, NA v. T & N PLC, No. 87 Civ. 4436 (JGK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 18, 1995
    ...772 F.Supp. 1380, 1388-91 (E. & S.D.N.Y.1991) (Weinstein, J.), rev'd on other grounds sub nom. In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Cir.1992). Decisions of the Appellate Division "are entitled to persuasive, if not decisive consideration." Sphere Drake Ins. Co. v. P.B.......
  • Request a trial to view additional results
185 cases
  • Dacosta v. City of N.Y., 15–CV–5174
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 8, 2017
    ...the best indicators of how it would decide are often the decisions of lower state courts." In re Brooklyn Navy Yard Asbestos Litig. , 971 F.2d 831, 850 (2d Cir. 1992) (internal citations omitted).Not every New York state court interprets the term "mistake" in the state relation-back test in......
  • State of N.Y. v. Blank, Nos. 1092-1094
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 13, 1994
    ...772 F.Supp. 1380, 1389 (E. & S.D.N.Y.1991) (predicting New York law), rev'd on other grounds, In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Cir.1992). We will, of course, give greatest weight "to the pronouncements of the New York Court of Appeals." Travelers, 14 F.3d at 119. B......
  • Brady v. Wal-Mart Stores, Inc., No. CV 03-3843(JO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 29, 2006
    ...how it "would" do so. O'Neill v. City of Auburn, 23 F.3d 685, 689 (2d Cir.1994); see also In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 850 (2d Cir. 1992). Although not binding, the "best indicators of how it would decide are often the decisions of lower state courts." Id. I t......
  • Chase Manhattan Bank, NA v. T & N PLC, No. 87 Civ. 4436 (JGK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 18, 1995
    ...772 F.Supp. 1380, 1388-91 (E. & S.D.N.Y.1991) (Weinstein, J.), rev'd on other grounds sub nom. In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Cir.1992). Decisions of the Appellate Division "are entitled to persuasive, if not decisive consideration." Sphere Drake Ins. Co. v. P.B.......
  • Request a trial to view additional results

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