In re Joint Eastern & Southern Dist. Asbestos Lit., No. 88 Civ. 3317 (RWS).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation827 F. Supp. 1014
Docket NumberNo. 88 Civ. 3317 (RWS).
PartiesIn re JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION. Mrs. Arlene M. MAIORANA, Individually and as Administratrix of the Estate of John Maiorana, Plaintiff, v. NATIONAL GYPSUM COMPANY; AC & S, Inc., Armstrong World Industries, Inc., f/k/a Armstrong Cork Company; The Celotex Company, individually and as successor-in-interest to Philip Carey Corporation, Briggs Manufacturing Co., Smith and Kanzler Corporation and Panacon Corporation; Eagle Picher Industries, Inc.; GAF Corporation; Nicolet Inc., individually and successor-in-interest to Keasbey-Mattison Company; Raymark Industries, Inc.; individually and as successor-in-interest to Raybestos-Manhattan, Inc.; Owens-Corning Fiberglas Corp.; U.S. Mineral Products Company; H.K. Porter Company, Inc., individually and successor to Southern Textile Corporation and Southern Asbestos Company; The Flintkote Company; Carey Canada, Inc.; Fibreboard Corporation; Rock Wool Manufacturing Co., Inc.; Owens-Illinois, Inc.; Turner & Newall, PLC., individually and as successor to Keasbey-Mattison Corporation; United States Gypsum Company; Dana Corporation, individually and as successor to Smith & Kanzler Company and Victor Gasket Company; Certainteed Corporation; TAF International Ltd., formerly Turner Asbestos Fibers, Ltd.; Pittsburgh Corning Corporation, individually and as successor to Unarco Industries, Defendants. OWENS-CORNING FIBERGLAS CORPORATION, Third-Party Plaintiff, v. MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION FUND; Keene Corporation, individually and as successor-in-interest to the Baldwin-Ehret-Hill Company, Keene Building Products Company and Ehret Magnesia Manufacturing Company; H & A Construction Company, individually and as successor to Spraycraft Corporation; Garlock, Inc.; Empire-Ace Insulation Manufacturing Corporation, individually and as successor to Empire Asbestos Company; Combustion Engineering, Inc., W.R. Grace and Company; Babcock & Wilcox Company; Bell/Atlas Asbestos Corp.; Port Authority of New York and New Jersey; Nassau County Medical Center, a/d/a Meadowbrook Hospital; DNS Metal Industries, Inc., individually and as successor-in-interest to Alpine Sheetmetal; and Triangle Sheet Metal, Third-Party Defendants (Two Cases). UNITED STATES MINERAL PRODUCTS COMPANY, Second Third-Party Plaintiff, v. TRIANGLE SHEET METAL WORKS, INC.; New York Telephone Company; DNS Metal Industries, Inc.; individually and as successor to Alpine Sheetmetal & Ventilating Company, Inc.; Sheet Metal Workers International Union, Local 28; Tishman Realty & Construction Co., Inc.; Castagna & Son, Inc., HRH Construction Co., Mario & DiBono Plastering Co., Inc.; Port Authority of New York and New Jersey; Nassau County Medical Center, f/k/a Meadowbrook Hospital, Second Third-Party Defendants.
Decision Date23 July 1993

827 F. Supp. 1014

In re JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION.
Mrs. Arlene M. MAIORANA, Individually and as Administratrix of the Estate of John Maiorana, Plaintiff,
v.
NATIONAL GYPSUM COMPANY; AC & S, Inc., Armstrong World Industries, Inc., f/k/a Armstrong Cork Company; The Celotex Company, individually and as successor-in-interest to Philip Carey Corporation, Briggs Manufacturing Co., Smith and Kanzler Corporation and Panacon Corporation; Eagle Picher Industries, Inc.; GAF Corporation; Nicolet Inc., individually and successor-in-interest to Keasbey-Mattison Company; Raymark Industries, Inc.; individually and as successor-in-interest to Raybestos-Manhattan, Inc.; Owens-Corning Fiberglas Corp.; U.S. Mineral Products Company; H.K. Porter Company, Inc., individually and successor to Southern Textile Corporation and Southern Asbestos Company; The Flintkote Company; Carey Canada, Inc.; Fibreboard Corporation; Rock Wool Manufacturing Co., Inc.; Owens-Illinois, Inc.; Turner & Newall, PLC., individually and as successor to Keasbey-Mattison Corporation; United States Gypsum Company; Dana Corporation, individually and as successor to Smith & Kanzler Company and Victor Gasket Company; Certainteed Corporation; TAF International Ltd., formerly Turner Asbestos Fibers, Ltd.; Pittsburgh Corning Corporation, individually and as successor to Unarco Industries, Defendants.

OWENS-CORNING FIBERGLAS CORPORATION, Third-Party Plaintiff,
v.
MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION FUND; Keene Corporation, individually and as successor-in-interest to the Baldwin-Ehret-Hill Company, Keene Building Products Company and Ehret Magnesia

[827 F. Supp. 1015]

Manufacturing Company; H & A Construction Company, individually and as successor to Spraycraft Corporation; Garlock, Inc.; Empire-Ace Insulation Manufacturing Corporation, individually and as successor to Empire Asbestos Company; Combustion Engineering, Inc., W.R. Grace and Company; Babcock & Wilcox Company; Bell/Atlas Asbestos Corp.; Port Authority of New York and New Jersey; Nassau County Medical Center, a/d/a Meadowbrook Hospital; DNS Metal Industries, Inc., individually and as successor-in-interest to Alpine Sheetmetal; and Triangle Sheet Metal, Third-Party Defendants (Two Cases).
UNITED STATES MINERAL PRODUCTS COMPANY, Second Third-Party Plaintiff,
v.
TRIANGLE SHEET METAL WORKS, INC.; New York Telephone Company; DNS Metal Industries, Inc.; individually and as successor to Alpine Sheetmetal & Ventilating Company, Inc.; Sheet Metal Workers International Union, Local 28; Tishman Realty & Construction Co., Inc.; Castagna & Son, Inc., HRH Construction Co., Mario & DiBono Plastering Co., Inc.; Port Authority of New York and New Jersey; Nassau County Medical Center, f/k/a Meadowbrook Hospital, Second Third-Party Defendants

No. 88 Civ. 3317 (RWS).

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

July 23, 1993.


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Levy Phillips & Konigsberg by Moshe Maimon, of counsel, New York City, for plaintiff

Barry McTiernan & Moore by Suzanne M. Halbardier, of counsel, New York City, for defendant Mario & DiBono Plastering Co., Inc.

Congdon, Flaherty, O'Callaghan, Reid, Donlon & Travis by Tod Travis, of counsel, Garden City, for defendant Castagna & Son, Inc.

D'Amato & Lynch by John J. Cullen, of counsel, New York City, for Port Authority of NY and NJ.

827 F. Supp. 1023

Danaher, Tedford, Lagnese & Neal, P.C. by Kenneth R. Neal, Paul F. Slater, of counsel, New York City, for defendant U.S. Mineral Products Co.

McMahon, Martine & Merritt by William D. Gallagher, of counsel, New York City, for defendant Tishman Realty & Const. Co.

OPINION

SWEET, District Judge.

Following a jury verdict rendered on February 10, 1993, in favor of the plaintiff Arlene Maiorana (the "Plaintiff"), certain defendants and third-party defendants (collectively, the "Defendants") in this action have filed post-trial motions. The Plaintiff alleged and the jury found that the asbestos-containing products of certain of the Defendants were the proximate cause of the death of her husband, John Maiorana ("Maiorana").

After the verdict, Defendant and second third-party plaintiff United States Mineral Product Company ("USMP"), the sole remaining direct Defendant left in the trial, moved on March 10, 1993, pursuant to Rule 50(b), Fed.R.Civ.P., for judgment notwithstanding the verdict or, more properly, for judgment as a matter of law.1 USMP also moved for a new trial or, in the alternative, for remittitur pursuant to Rule 59, Fed. R.Civ.P., on the grounds that damages are excessive and that the Court failed to instruct the jury adequately pursuant to New York Labor Law § 200. Third-party Defendants Mario & DiBono Plastering Co. ("Mario & DiBono"), Castagna & Son, Inc. ("Castagna"), and Tishman Realty & Construction Co. of New York, Inc. ("Tishman"), have sought similar relief. Castagna moved for a stay of execution of judgment as well. Both Castagna and Tishman also have moved for judgment on their cross-claims for common law indemnity against Mario & DiBono, the Defendant who impleaded them.2 Finally, third-party Defendant the Port Authority of New York and New Jersey (the "Port Authority"), which was found not liable by the jury, has opposed the motion of USMP for a new trial pursuant to § 200, N.Y.Lab.L.

For the following reasons, the motions for judgment as a matter of law are granted. In the event that this decision is appealed and overturned upon appeal, all motions filed by the parties are granted in part and denied in part.

The Parties

The Plaintiff is a natural person and is the widow of John Maiorana. She resides and is domiciled in the State of New York.

Defendant and second third-party Plaintiff USMP is a corporation duly organized and existing under the laws of the State of New Jersey.

Third-party Defendants Mario & DiBono, Castagna, and Tishman are corporations duly organized and existing under the laws of the State of New York.

Third-party Defendant the Port Authority is a governmental entity duly organized and existing under and by virtue of the laws of the States of New York and New Jersey, with its principal place of business in New York. The Port Authority built and owns the World Trade Center (the "WTC") in New York, New York.

Prior Proceedings

The Plaintiff filed her original complaint in this diversity action on July 28, 1987, as part of a case brought by sixteen plaintiffs on behalf of themselves and their deceased spouses, see In re Joint E. & S. Dist. Asbestos Litig., 758 F.Supp. 199 (S.D.N.Y.1991) ("Asbestos Litig. I"), rev'd, 964 F.2d 92 (2d Cir.1992) ("Asbestos Litig. II"). Defendant and second third-party plaintiff USMP filed its second third-party complaint on December 14, 1990.

827 F. Supp. 1024

Certain Defendants, including USMP, moved for summary judgment alleging that the only evidence which the Plaintiff had set forth to prove that her husband's colon cancer was caused by his exposure to asbestos was epidemiological evidence, and because this evidence did not indicate that asbestos exposure created at least a two-fold increase in the risks of getting colon cancer and thus the Defendants' actions could not have been "more likely than not" the cause of his cancer, it was insufficient as a matter of law. The motion for summary judgment was granted on February 26, 1991.

The Plaintiff appealed, and the Court of Appeals reversed the grant of summary judgment status on the grounds that the Plaintiff had presented clinical evidence of causation in addition to the epidemiological studies: "Maiorana's own medical records and personal history were the clinical evidence upon which plaintiff's expert witnesses based their opinions that asbestos exposure was a significant factor in causing his colon cancer." Asbestos Litig. II, 964 F.2d at 96. The Court found that the plaintiff's experts could testify that Maiorana's exposure to asbestos was a "significant factor" and "a proximate cause, and a substantial factor" in the development of his colon cancer because:

they based their conclusions on their review of Mr. Maiorana's medical records, occupational and medical history, their knowledge as experts either in occupational medicine or epidemiology and their review of epidemiological studies. They also appropriately based their conclusions on the lack of other factors that could have caused Mr. Maiorana's colon cancer..... Granting plaintiff all favorable inferences, these statements are the equivalent of stating that asbestos exposure more probably than not caused the colon cancer. Medical experts need not invoke technical legal phrases in order to convey their medical opinions.

Id. at 96-97.

The case was tried to a jury from January 20 to February 10, 1993. The jury was charged on strict liability and negligence of manufacturers and on the negligence of all third party defendants. The jury, after allocating percentages of fault among the defendants and certain non-parties via special verdict, returned a verdict in favor of the plaintiff in the total amount of $4,510,000. The jury found USMP 50% responsible for the Plaintiffs' damages and three of the third-parties approximately equally negligent (both contractors were assessed to be 14% responsible; subcontractor Mario & DiBono was assessed to be 15% responsible). The jury absolved the Port Authority of any liability.

Oral argument was heard on the post-trial motions of USMP and the third-party Defendants on March 10, 1993, and these motions were considered fully submitted at that time.

The Facts

USMP was the manufacturer of Cafco D, an asbestos-containing fireproof spray material used in the construction of both the WTC in Manhattan...

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29 practice notes
  • Appel v. Schoeman Updike Kaufman Stern & Ascher L. L.P., 14-cv-2065 (AJN)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 26, 2015
    ...No. 06-cv-1520, 2014 U.S. Dist. LEXIS 160212, at *97-98 (S.D.N.Y. Nov. 13, 2014) (quoting In re Joint E. &S. Dist. Asbestos Litig., 827 F. Supp. 1014, 1052-53 (S.D.N.Y. 1993), aff'd in part rev'd in part on other grounds, 52 F.3d 1124 (2d Cir. 1995)). It "applies to owners, contractors, or ......
  • In re World Trade Ctr. Lower Manhattan Disaster Site Litig., Nos. 09 CV 680AKH
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 9, 2014
    ...safe environment, not to the public at large, but to the workers employed at a worksite. See In re Joint E. & S. Dist. Asbestos Litig., 827 F.Supp. 1014, 1052–53 (S.D.N.Y.1993) ; Russin, 54 N.Y.2d at 316–18, 445 N.Y.S.2d 127, 429 N.E.2d 805. Thus, there is no risk of the boundless tort liab......
  • In re New York Asbestos Litigation, No. 92 Civ. 6377 (RWS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 18, 1994
    ...will not be repeated. They have recently been reviewed by this court in In re Joint Eastern & Southern Districts Asbestos Litigation, 827 F.Supp. 1014 (S.D.N.Y.1993) 847 F. Supp. 1096 (Maiorana), and Koerner v. Club Mediterranee, S.A., 833 F.Supp. 327 (S.D.N.Y.1993). If remittitur is to be ......
  • In re World Trade Ctr. Lower Manhattan Disaster Site Litig., Nos. 09 CV 680(AKH), 21 MC 102(AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 9, 2014
    ...safe environment, not to the public at large, but to the workers employed at a worksite. See In re Joint E. & S. Dist. Asbestos Litig., 827 F.Supp. 1014, 1052–53 (S.D.N.Y.1993); Russin, 54 N.Y.2d at 316–18, 445 N.Y.S.2d 127, 429 N.E.2d 805. Thus, there is no risk of the boundless tort liabi......
  • Request a trial to view additional results
29 cases
  • Appel v. Schoeman Updike Kaufman Stern & Ascher L. L.P., 14-cv-2065 (AJN)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 26, 2015
    ...No. 06-cv-1520, 2014 U.S. Dist. LEXIS 160212, at *97-98 (S.D.N.Y. Nov. 13, 2014) (quoting In re Joint E. &S. Dist. Asbestos Litig., 827 F. Supp. 1014, 1052-53 (S.D.N.Y. 1993), aff'd in part rev'd in part on other grounds, 52 F.3d 1124 (2d Cir. 1995)). It "applies to owners, contractors, or ......
  • In re World Trade Ctr. Lower Manhattan Disaster Site Litig., Nos. 09 CV 680AKH
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 9, 2014
    ...safe environment, not to the public at large, but to the workers employed at a worksite. See In re Joint E. & S. Dist. Asbestos Litig., 827 F.Supp. 1014, 1052–53 (S.D.N.Y.1993) ; Russin, 54 N.Y.2d at 316–18, 445 N.Y.S.2d 127, 429 N.E.2d 805. Thus, there is no risk of the boundless tort liab......
  • In re New York Asbestos Litigation, No. 92 Civ. 6377 (RWS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 18, 1994
    ...will not be repeated. They have recently been reviewed by this court in In re Joint Eastern & Southern Districts Asbestos Litigation, 827 F.Supp. 1014 (S.D.N.Y.1993) 847 F. Supp. 1096 (Maiorana), and Koerner v. Club Mediterranee, S.A., 833 F.Supp. 327 (S.D.N.Y.1993). If remittitur is to be ......
  • In re World Trade Ctr. Lower Manhattan Disaster Site Litig., Nos. 09 CV 680(AKH), 21 MC 102(AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 9, 2014
    ...safe environment, not to the public at large, but to the workers employed at a worksite. See In re Joint E. & S. Dist. Asbestos Litig., 827 F.Supp. 1014, 1052–53 (S.D.N.Y.1993); Russin, 54 N.Y.2d at 316–18, 445 N.Y.S.2d 127, 429 N.E.2d 805. Thus, there is no risk of the boundless tort liabi......
  • Request a trial to view additional results

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