In re Joint Eastern & Southern Dist. Asbestos Lit., No. NYAL-PH-8888.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtSIFTON
Citation798 F. Supp. 925
Decision Date28 July 1992
Docket NumberNo. NYAL-PH-8888.
PartiesIn re JOINT EASTERN AND SOUTHERN DISTRICTS ASBESTOS LITIGATION.

798 F. Supp. 925

In re JOINT EASTERN AND SOUTHERN DISTRICTS ASBESTOS LITIGATION.

No. NYAL-PH-8888.

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

July 28, 1992.


798 F. Supp. 926
COPYRIGHT MATERIAL OMITTED
798 F. Supp. 927
COPYRIGHT MATERIAL OMITTED
798 F. Supp. 928
COPYRIGHT MATERIAL OMITTED
798 F. Supp. 929
MEMORANDUM AND ORDER

SIFTON, District Judge.

John Crane-Houdaille Inc. and Keene Corporation move for judgment notwithstanding the verdict, a new trial, or other post-verdict relief. For the reasons discussed below, the motions are denied.

On April 1, 1991, this Court commenced a consolidated trial of 48 cases seeking compensation for injury or death from exposure to asbestos. The trial was bifurcated. A damages award was returned in the McPadden case on August 15, 1991, for the following amounts:

 Funeral expenses $ 4,500.00
                 Past lost income $ 565,981.85
                 Past lost services $ 8,500.00
                 Non-economic loss $4,500,000.00
                 Past pecuniary losses to
                 survivors $ 17,500.00
                 Future pecuniary losses
                 to survivors $ 294,000.00
                 Past economic loss of
                 consortium $ 127,300.00
                 Past non-economic loss of
                 consortium $ 400,000.00
                

The jury also found the following damages in the Lewis case:

 Past medical expenses $ 27,795.30
                 Funeral expenses $ 2,000.00
                 Past lost services $ 8,000.00
                 Pain and suffering $1,250,000.00
                 Past pecuniary losses to
                 survivors $ 30,000.00
                 Past non-economic loss of
                 consortium $ 365,000.00
                

The liability phase began on September 11, 1991. During the latter part of the liability phase most of the trial cases settled. These settlements substantially reduced the size of the trial.

The jury returned the liability verdict on March 13, 1992. It found Crane's equitable share of McPadden's injuries to be 10%. No finding allowing an exception under Article 16 of the CPLR was made. The jury also found Keene's equitable share of Lewis' injuries to be 9%. In both cases the jury declined to award punitive damages.

Many of the claims now raised by the defendants are similar. Both Crane and Keene move for judgment notwithstanding the verdict (more properly termed a motion judgment as a matter of law) on the ground that the evidence failed to show proximate cause between their products and the injuries or liability. Both defendants complain about the size of the verdicts. They contend that the sums awarded by the jury must be remitted.

798 F. Supp. 930

Some issues are raised only by Crane. Thus, Crane requests a new trial on all issues because the jury was likely to be confused by the complexity of the trial and because of certain evidentiary rulings. Crane also requests this Court to hold a factual hearing to determine if the complaint should be dismissed for plaintiff's failure to abide by an alleged oral settlement agreement.

Keene also advances its own issues. It argues that the weight of the evidence does not support the jury's apportionment of 9% liability to Keene. It also contends that the Court has effectively imposed market share liability.

DISCUSSION

Judgment as a Matter of Law

The Court will grant a motion for judgment notwithstanding the verdict, now more properly denominated a renewal of a motion for judgment as a matter of law, Fed.R.Civ.P. 50 (as amended effective Dec. 1, 1991), where, under governing substantive law, only one reasonable conclusion can be reached from the evidence. Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

While all inferences and questions of credibility are considered in the light most favorable to the non-movant, Fane v. Zimmer, 927 F.2d 124, 128 (2d Cir.1991); Powell v. Gardner, 891 F.2d 1039, 1043 (2d Cir.1989), a mere metaphysical doubt or scintilla of evidence is not sufficient to preserve the non-movant's judgment. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512; Fane, 927 F.2d at 128. Instead, the court looks at the totality of the evidence presented. Wm. Passalacqua Builders v. Resnick Developers, 933 F.2d 131, 140 (2d Cir.1991).

Granting such a motion is, therefore, proper if either—

(1) there is a complete absence of probative evidence to support a verdict for the non-movant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable men in the exercise of impartial judgment could not arrive at a verdict against him.

Powell, 891 F.2d at 1043 (citations omitted).

In this circuit, following and interpreting New York law, the rule is that circumstantial evidence may be used to prove any of the adjudicative facts. O'Brien v. National Gypsum Co., 944 F.2d 69, 72 (2d Cir.1991).

Asbestos cases are treated no differently than any others. Id. O'Brien, id., and Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990), are correctly viewed as showing a general policy towards sufficiency of evidence, not as narrow rulings limited to their specific facts.

Both defendants argue that the plaintiffs did not present sufficient proof of proximate cause. The standard for proximate cause in a case such as this is easily stated. New York law requires the plaintiff to prove "that he was exposed to defendant's merchandise and that it is more likely than not that this exposure was a substantial factor in his injury." Johnson, 899 F.2d at 1285-86. Under this basic rule a jury verdict of sufficient exposure is supportable if plaintiff is "placed ... in the vicinity of an area where asbestos products were used on a regular basis" during the relevant time period. Weitzman v. Eagle Picher Industries, 144 Misc.2d 42, 542 N.Y.S.2d 118, 122 (Sup.Ct.N.Y.Cty.1989) (J. Freedman). The Second Circuit recently reaffirmed this standard and explicitly restated that direct proof of product identification is unnecessary, especially in death cases. In re Brooklyn Navy Yard, 971 F.2d 831, 836-37, No. 91-9325(L), slip op. at 4-6 (2d Cir. June 30, 1992).

Defendants urge the Court to narrow this standard by adopting the "frequency-regularity-proximity" test articulated in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986). Neither New York nor the Second Circuit reviewing New York law has adopted this test. See Slaughter v. Southern Talc Co., 949 F.2d 167, 171 n. 3 (5th Cir.1991).

798 F. Supp. 931

A straightforward application of the New York rule disposes of Keene's causation argument. Considering all the evidence and drawing all reasonable inferences from it in the light most favorable to the non-movant, Fane, 927 F.2d at 128, the record supports the jury's finding of proximate cause in the Lewis case.

Jeno Manna placed Lewis, a sheetmetal worker, at the Hoffman-LaRoche facility in Nutley, New Jersey, in the late 1950's or early 1960's. The testimony of Listes, an insulation supervisor, demonstrates that the contractor Matthew Balich used asbestos manufactured by Baldwin-Ehret-Hill, Keene's successor in interest, during several periods over a long period of time, including the early 1960's, for boiler breechings at the Nutley facility. Tr. Dec. 2 at 7233-40, 7244-47, 7260-69. The Hertel testimony demonstrated that sheetmetal workers worked on boiler breechings. Tr. Oct. 18 at 3709-10.

Additional evidence of exposure also exists. Manna placed Lewis at the Astoria powerhouse in the late 1950's or mid 1960's. Tr. Nov. 13 at 5654-55. Kolman testified to the use of BEH block at Astoria in the '50's and '60's. Tr. Nov. 15 at 5958-59, 5972-73. Finally, Manna placed Lewis at the Time-Life building during its period of construction in the late 1950's. Tr. Nov. 13 at 5634-36. Herzich's testimony can reasonably be read to place products for which Keene is responsible at that site. Tr. Sept. 20 at 1036, 1043-50.

Defendant's argument that proximate cause does not exist where "there are several possible causes of an injury," Schwartz v. Macrose Lumber & Trim Co., 29 A.D.2d 781, 287 N.Y.S.2d 706, 707-08 (2d Dept.1968), aff'd, 24 N.Y.2d 856, 301 N.Y.S.2d 91, 248 N.E.2d 920 (1969), dates from the era prior to New York's adoption of comparative negligence. See N.Y. CPLR § 1411. Under that standard the fact that an injury has more than one cause does not bar liability as to any one of the multiple causes.

Defendant's citation to cases holding that, when "the precise cause of the accident is left to conjecture" no liability exists, Smith v. Squire Homes, Inc., 38 A.D.2d 879, 329 N.Y.S.2d 243, 245 (4th Dept.1972), is equally inapposite. The fact that the evidence set forth above is circumstantial does not render the jury's conclusion conjectural. See O'Brien, 944 F.2d at 72.

Defendant, without explaining why, argues that O'Brien should be confined to instances of "signature" diseases such as mesothelioma. Here, however, the precise medical "cause" of Lewis' lung cancer — exposure to asbestos dust—is not seriously in dispute. No evidence was presented to challenge the conclusion rendered by plaintiff's expert or to suggest any other cause of Lewis' disease. The evidence indicates that Lewis, as a sheetmetal worker, participated in boiler construction operations that exposed him to defendant's asbestos. As in O'Brien, the mere fact that this one defendant only produced some of the asbestos to which Lewis was likely exposed does not relieve this defendant of responsibility.

Crane's argument differs slightly. That company contends that plaintiff failed to prove that the form of asbestos manufactured by it caused plaintiff's injury. Specifically, Crane complains that no expert testimony demonstrated that Crane's type of products released significant quantities of respirable fibers.

Crane's experts testified on the "friability" of Crane's products. Crane's motion defines "friable" from the testimony of its witness, Mr. Buccigross, as "reducible to powder by hand pressure." Motion 22, referring to Trial Transcript 10550.

Numerous witnesses who worked with Crane's type of product testified to the release of large quantities of dust under...

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19 practice notes
  • Gasperini v. Center for Humanities, Inc., No. 95-719.
    • United States
    • United States Supreme Court
    • 24 June 1996
    ...sustained under the New York "deviates materially" rule "shocks the conscience." See In re Joint Eastern & S. Dist. Asbestos Litigation, 798 F. Supp. 925, 937 (E&SDNY 1992), rev'd on other grounds, 995 F. 2d 343, 346 (CA2 1993). In sum, it is at least highly questionable whether the consist......
  • 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
    • 18 February 1994
    ...years of experience or many verdicts upon which to build the necessary sense of consensus. In re Joint E. & S. Dists. Asbestos Litig., 798 F.Supp. 925, 938 (E.D.N.Y.1992) (McPadden et al.), rev'd on other grounds, 995 F.2d 343 (2d Cir.), and rev'd on other grounds, 995 F.2d 346 (2d Undoubte......
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    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 23 July 1993
    ...However, curative jury instructions should not be simply dismissed as boilerplate. See In re Joint E. & S. Dist. Asbestos Litig., 798 F.Supp. 925, 936 (E. & S.D.N.Y.1992) ("Asbestos Litig. III"), rev'd on other grounds, In re Joint E. & S. Dist. Asbestos Litig., 995 F.2d 343 (2d Cir.1993). ......
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    • United States District Courts. United States District Court (Columbia)
    • 21 December 1999
    ...In re Silicone Gel Breast Implants Prod. Liab. Litig., 887 F.Supp. 1447 (N.D.Ala. 1995); In re Joint E. and S. Dists. Asbestos Litig., 798 F.Supp. 925 (E.D.N.Y.1992); In re DES Cases, 789 F.Supp. 552 (E.D.N.Y.1992); In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 187 (2nd Cir.19......
  • Request a trial to view additional results
19 cases
  • Gasperini v. Center for Humanities, Inc., No. 95-719.
    • United States
    • United States Supreme Court
    • 24 June 1996
    ...sustained under the New York "deviates materially" rule "shocks the conscience." See In re Joint Eastern & S. Dist. Asbestos Litigation, 798 F. Supp. 925, 937 (E&SDNY 1992), rev'd on other grounds, 995 F. 2d 343, 346 (CA2 1993). In sum, it is at least highly questionable whether the consist......
  • 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
    • 18 February 1994
    ...years of experience or many verdicts upon which to build the necessary sense of consensus. In re Joint E. & S. Dists. Asbestos Litig., 798 F.Supp. 925, 938 (E.D.N.Y.1992) (McPadden et al.), rev'd on other grounds, 995 F.2d 343 (2d Cir.), and rev'd on other grounds, 995 F.2d 346 (2d Undoubte......
  • In re Joint Eastern & Southern Dist. Asbestos Lit., No. 88 Civ. 3317 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 23 July 1993
    ...However, curative jury instructions should not be simply dismissed as boilerplate. See In re Joint E. & S. Dist. Asbestos Litig., 798 F.Supp. 925, 936 (E. & S.D.N.Y.1992) ("Asbestos Litig. III"), rev'd on other grounds, In re Joint E. & S. Dist. Asbestos Litig., 995 F.2d 343 (2d Cir.1993). ......
  • Service Employees Int'L Union v. Philip Morris, No. CIV.A 98-704 GK.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 21 December 1999
    ...In re Silicone Gel Breast Implants Prod. Liab. Litig., 887 F.Supp. 1447 (N.D.Ala. 1995); In re Joint E. and S. Dists. Asbestos Litig., 798 F.Supp. 925 (E.D.N.Y.1992); In re DES Cases, 789 F.Supp. 552 (E.D.N.Y.1992); In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 187 (2nd Cir.19......
  • Request a trial to view additional results

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