In re New York Asbestos Litigation
| Decision Date | 18 February 1994 |
| Docket Number | 92 Civ. 2402 (RWS) and 92 Civ. 0763 (RWS).,No. 92 Civ. 6377 (RWS),92 Civ. 7283 (RWS),92 Civ. 6377 (RWS) |
| Citation | 847 F. Supp. 1086 |
| Parties | In re NEW YORK ASBESTOS LITIGATION. John Consorti, Alfred Luchnick, Peter Pulizzi, Vincent Tabolt, Plaintiffs. |
| Court | U.S. District Court — Southern District of New York |
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Levy Phillips & Konigsberg, New York City (Robert I. Komitor, Moishe Maimon, of counsel), for plaintiffs.
McCarter & English, Newark, NJ by Richard P. O'Leary, for defendant Keene Corp.
Flemming, Zulack & Williamson, New York City (Cynthia B. Rubin, of counsel), for defendant Flintkote Co.
Hinckley & Silbert, P.C., New York City (Craig F. Wilson, of counsel), for defendant Owens-Corning Fiberglas Corp.
Gladstein & Isaac, New York City (Peter L. Herb, of counsel), for defendant Veteran's Pipe Covering.
Lester Schwab Katz & Dwyer, New York City (Cynthia Weiss Antonucci, of counsel), for defendant Fibreboard Corp.
Winick & Rich, P.C., New York City (Abraham Y. Skoff, of counsel), for defendant Atlas Turner, Inc.
Anderson Kill Olick & Oshinsky, P.C., New York City, and Whiteford, Taylor & Preston, Baltimore, MD (Warren Weaver, Jennifer W. Darger, Margaret A. Weiner, of counsel), for defendant Porter Hayden Co.
After twenty-five days of trial, the jury in this consolidated trial reached special verdicts awarding over $47 million in damages on behalf of plaintiffs John and Sharon Tabolt, John and Francis Consorti, Alfred and Joselyn Luchnick, and Peter and Anne Pulizzi against six defending corporations and a number of other settling and non-party defendants. These verdicts are annexed as Appendix A (Tabolt), B (Consorti), C (Luchnick) and D (Pulizzi) and were the subject of post trial motions of the defendants which are granted in part and denied in part as set forth below. The order of the dispositions will follow the order of the verdicts which were rendered. In addition, a number of issues are common to certain of the cases and will be dealt with as they arise. Those relating to the molding of judgments will be resolved after the consideration of particular verdicts.
The procedural path that these cases followed from their filing to their eventual consolidation for trial in this Court is fully recounted in prior opinions, familiarity with which is assumed. See 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). These cases were consolidated for trial by order and opinion of this Court dated February 12, 1993. See In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y.1993). On June 10, 1993, this Court denied several of the defendants' motions to reconsider the consolidation of these actions, and denied a motion by the Keene Corporation for a stay of this litigation. See In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y.1993).
The Special Verdicts were rendered seriatim on July 22, 23, and 24, 1993, and on August 19, 1993 certain motions were filed seeking discovery with respect to judgment molding. Post trial motions pursuant to Rule 50(b) of the Federal Rules of Civil Procedure were made September 14. Oral argument concluded on the post-trial motions of all parties on October 14, 1993. On October 15, 1993, the plaintiffs' attorney supplied the Court with copies of his retainer agreements with the plaintiffs. On November 23, 1993, the plaintiffs' attorney sent to the Court by mail a copy of the decision of the New York Court of Appeals in In re New York County Asbestos Litigation, which is reported at 82 N.Y.2d 342, 604 N.Y.S.2d 884, 624 N.E.2d 979 (1993). These motions were considered fully submitted as of November 23, 1993.
The Flintkote Company ("Flintkote") was the sole defendant, other than settling and non-party defendants, to the claims brought on behalf of Vincent Tabolt ("Tabolt"), who had been employed at the Lowville Builders Cooperative where he worked in the cement room and thereafter as a stock clerk. During the cement room period Tabolt was exposed to asbestos cement, but there was no identification of Flintkote products used during that period. Tabolt's exposure as a stock clerk to Flintkote roofing shingles and Flintkote Orangeburg pipe, a plastic pipe containing asbestos, and the extent of that exposure, was the determinative issue.
The applicability of Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir.1993), to the consolidation issues here was considered in the opinion of the Court dated June 10, 1993. See 149 F.R.D. 490 (S.D.N.Y.1993). The factors considered there and in the prior opinion of February 12 included worksite, occupation, time of exposure, disease type, whether the plaintiff was alive or dead, discovery, counsel, and the existence of cancer, all relevant as to the issue of the ability of the jury to differentiate between parties and issues.
In the four cases that went to trial there were ultimately two relevant worksites. Luchnick and Pulizzi had their exclusive exposure in the Brooklyn Navy Yard during the same years, 1942-45, and Tabolt's exclusive exposure was in the Lowville Farmers' Cooperative. Because of the nature of the product identification proofs in the Consorti case, which were not site specific, his numerous worksites were irrelevant and not the subject of proof. Because of their limited number, no confusion resulted from the worksites involved.
Whatever the impact of dissimilar occupations might have been upon a defendant's "state-of-the-art" defense, none of defendants here made any attempt to distinguish state-of-the-art knowledge by occupation, such as users as opposed to bystanders, shipyard workers or construction workers, or even stock clerks. The distinctions made by the defendants were with respect to disease (asbestosis, lung cancer, and mesothelioma) and factory as opposed to end product exposure. Accordingly, as a practical matter, and for purposes of the instant inquiry, the occupations of the four plaintiffs were functionally equivalent from the point of view of state-of-the-art evidence.
Again, the actual offering and presentation of evidence to the jury, along with the limiting instructions given throughout the trial by the Court, clearly distinguished the applicable periods of time. Liability evidence dated after 1945 was carefully excluded in its offer, receipt, and presentation from the Luchnick and Pulizzi cases.
All four of the cases which went to trial dealt with undisputed mesotheliomas.
At the time of trial, John Consorti ("Consorti") was still alive, but the fatality of his disease is certain. Since there was no possibility that the asbestos-related disease of the living plaintiff would not prove fatal, In re Joint E. & S. Dists. Asbestos Litig., 125 F.R.D. 60, 66 (E.D.N.Y.1989), no prejudice could result from trying the claims of a living plaintiff with those who had already died.
There has been no showing that consolidated discovery practices were in any way prejudicial.
The commonality of plaintiffs' counsel favored consolidation and the cooperation and coordination amongst defense counsel also helped to avoid confusion.
As mentioned above, all plaintiffs had the same type of cancer, pleural mesothelioma.
Specialized notebooks with photographs of and undisputed biographical information about each plaintiff, along with a list of remaining defendants in each case, were provided to the jury, the members of which took copious notes throughout the trial.
Demonstrative charts distinguishing the separate plaintiffs and the defendants in each case, along with exposure histories for each plaintiff, were used by counsel in their openings.
Cautionary instructions were continuously given to the jury throughout the trial and in the charge concerning the admission of evidence limited to a certain case or a certain issue, and the need to consider each case separately. Moreover, where appropriate, counsel delineated offers of evidence by case and/or defendant.
The summations of counsel addressed each claim separately, utilizing charts which included time lines in order to distinguish between the different relevant periods for liability purposes, as well as citations to the trial record for arguments regarding specific evidence.
Detailed special verdict forms called for separate determinations of each issue in each case as to each party. There was no conflict between any of the verdicts and no confusion expressed or demonstrated in the rendering of separate verdicts in each of the cases, except as to the Court's charge on the non-economic consortium claim in Consorti, Verdict Question 5(h), where the jury awarded damages for the period of Consorti's normal life expectancy (26.2 years) instead of the 9 months it found he would survive with his mesothelioma, and the conflict in the answers on the Tabolt special verdict form as discussed below.
As to Consorti, since there was no single site involved, his case was particularly appropriate for consolidation. As has already been discussed, no meaningful distinction could have been made between Consorti's medical condition and those of the other defendants, and no such effort was made by the defendants. Consolidation was therefore appropriate.
A review of the Flintkote defense establishes that its position was unique and easily understood, namely, that Tabolt was not exposed to asbestos through its products. The distinctiveness of its position, in the context of the testimony and the limited number of products involved, precluded any confusion from arising out of the principal Flintkote defense. To...
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