Juni v. A.O. Smith Water Prods. (In re N.Y.C. Awbestos Litig.)

• Citation: 2015 N.Y. Slip Op. 25125,48 Misc.3d 460,11 N.Y.S.3d 416
• Decision Date: 13 April 2015
• Docket Number: 190315/12
• Parties: In re NEW YORK CITY ASBESTOS LITIGATION Arthur H. Juni and Mary Juni, Plaintiffs, v. A.O. Smith Water Products, et al., Defendants.
• Court: United States State Supreme Court (New York)

48 Misc.3d 460
11 N.Y.S.3d 416
2015 N.Y. Slip Op. 25125

In re NEW YORK CITY ASBESTOS LITIGATION
Arthur H. Juni and Mary Juni, Plaintiffs
v.
A.O. Smith Water Products, et al., Defendants.

190315/12

Supreme Court, New York County, New York.

April 13, 2015.

11 N.Y.S.3d 417

Pierre Ratzki, Esq., Weitz & Luxenberg, P.C., New York, for plaintiffs.

Oded Burger, Esq., Aaronson Rappaport et al., New York, for Ford Motor Co.

Opinion

BARBARA JAFFE, J.

48 Misc.3d 461

Defendant Ford Motor Company moves post-trial for orders: (1) striking the causation opinions of plaintiffs' expert witnesses,

11 N.Y.S.3d 418

and (2) dismissing the action and entering judgment as a matter of law in favor of it based on plaintiffs' failure to establish a prima facie case at trial, or, alternatively (3) setting aside the verdict rendered against it at trial and granting a new trial; (4) granting it leave to renew its opposition to plaintiffs' motion to consolidate and upon renewal, denying the motion to consolidate and granting a new trial; (5) setting aside and remitting the verdict as excessive and contrary to the weight of the evidence; and (6) reducing the verdict by offsets from settlements before entering judgment. Plaintiffs oppose.

I. BACKGROUND AND TRIAL

Plaintiffs sued defendant, and others who have since settled, claiming that exposure to asbestos from products manufactured or used by them or used at their premises caused plaintiff Arthur Juni (Juni) to develop and die from mesothelioma. The trial of this action was consolidated with two other actions, Karl Fersch and Anna Fersch v. Amchem Products, Inc., et al., Index No. 190468/12, and Darryl W. Middleton and Belinda Middleton v. Amchem Products, Inc., et al., Index No. 190367/12. Prior to trial, I granted defendant Volkswagen of America's motion for an order precluding expert testimony in the Fersch matter to the extent of ordering a hearing pursuant to Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006). Before the hearing commenced, the Fersch plaintiffs settled their claims against Volkswagen.

A jury trial commenced, soon after which the Middleton plaintiffs discontinued their case in its entirety. Thus, the trial proceeded to verdict only in Juni and only as against defendant. After plaintiffs rested, defendant moved for an order striking the causation testimony of plaintiffs' experts and for a directed verdict based on the insufficiency of the evidence. I reserved decision.

At the charge conference, the parties agreed that the jury would be asked whether Juni was exposed to asbestos from

48 Misc.3d 462

brakes, clutches, or gaskets sold or distributed by defendant, and would be presented with three alternative theories of liability against defendant: (1) common law negligence, (2) strict products liability (failure to warn), and (3) products liability (negligence).

While plaintiffs conceded that “[defendant] didn't manufacture brakes, clutches or gaskets ... [defendant] manufactured cars,” they argued that defendant could additionally be held liable for Juni's exposure to asbestos-containing replacement parts used in its vehicles. (Tr. 2396). Absent any evidence that defendant intended or required, within the meaning of Berkowitz v. A.C. and S., Inc., 288 A.D.2d 148, 733 N.Y.S.2d 410 (1st Dept.2001), that asbestos-containing replacement components be used in its vehicles, I declined to instruct the jury on whether defendant failed to warn Juni of the danger of components used in its vehicles. (Tr. 2401). (See also Matter of New York City Asbestos Litig. [Dummitt], 121 A.D.3d 230, 251–252, 990 N.Y.S.2d 174 [1st Dept.2014], lv. granted 2014 N.Y. Slip Op. 92113[U], 2014 WL 6886994 [no duty to warn absent evidence that defendant had active role, interest, or influence in types of products to be used with own product after placing it into stream of commerce] ).

The jury rendered its verdict finding that: (1) Juni was exposed to asbestos from brakes, clutches, or gaskets sold or distributed by defendant; (2) defendant failed to exercise reasonable care by not providing an adequate warning about the hazards of exposure to asbestos with respect to the use of the brakes, clutches, or

11 N.Y.S.3d 419

gaskets; and (3) defendant's failure to warn Juni adequately was a substantial contributing factor in causing his injury. It then considered whether liability should be apportioned among the 16 other entities listed on the verdict sheet, and found that Juni had been exposed to asbestos in all 16 of the other entities' products or by use of their products, but that only one of them, non-party Orange & Rockland Utilities (Orange and Rockland), had failed to exercise reasonable care by not providing an adequate warning about the potential hazard of exposure to asbestos, and that its failure to warn adequately was a substantial contributing factor in causing Juni's injury.

After apportioning 49 percent of the liability to defendant and 51 percent to Orange and Rockland, the jury found that defendant had acted recklessly. It awarded Juni $8 million for his pain and suffering from the onset of his symptoms to his death on March 15, 2014, and to plaintiff Mary Juni $3 million for her loss of consortium.

48 Misc.3d 463

A. Juni's pertinent testimony

Juni's deposition testimony was read to the jury. Beginning in 1964, he worked for Orange and Rockland in its Nyack garage as a third-class mechanic. (Tr. 623).

As a third-class mechanic, he pumped gas, changed oil, and greased vehicle parts. As a second-class mechanic, he changed car tires and assisted with one brake job a week. (Tr. 624, 625, 646).

First-class mechanics worked on brakes. (Tr. 625). In assisting them, Juni jacked up the vehicles and removed the tires. (Tr. 629). In removing the brake drums, the mechanics dropped them on the ground, leaving brake dust that Juni swept up each night. (Tr. 631, 1097–1099). Juni also assisted the first-class mechanics with clutch replacement. (Tr. 638). On defendant's F–600s, for example, first-class mechanics would remove the bell housing, thereby producing clutch dust. (Tr. 637).

The Nyack garage serviced different kinds of vehicles, including bucket trucks and defendant's dump trucks and service vans, on which mechanics would install replacement brakes. (Tr. 626, 627, 628). Juni also assisted the first-class mechanics with replacing the clutches on defendant's vehicles. (Tr. 632, 633, 639, 640).

In 1966, Juni began working at Orange and Rockland's Spring Valley garage as a second-class mechanic, performing weekly brake work (Tr. 641, 646), removing brake drums and dumping the dust on the ground, although he tried to dump it onto rags (Tr. 650). When he performed brake jobs, dust collected in the disc brake vent holes. (Tr. 1292). Juni also replaced gaskets (Tr. 1037, 1041), by removing parts of the engine, removing the gaskets using small Brillo pads (Tr. 1042, 1044), and clearing out the area with an air gun (id. ). At the end of each workday, workers used compressed air to clean up the dust, and they swept up the dust with brooms. (Tr. 1586, 1587).

Juni was promoted to first-class mechanic in the late 1960s (Tr. 642). As a first-class mechanic, he serviced all kinds of vehicles manufactured by defendant. (Tr. 646, 991). Approximately 500 vehicles, mostly defendant's, were serviced at that garage during Juni's tenure. (Tr. 1052). Almost weekly, Juni performed clutch work on defendant's bucket trucks. (Tr. 657, 660, 661, 1507).

48 Misc.3d 464

After Juni became a foreman in the 1970s, he assisted other workers with brake work on defendant's vehicles. (Tr. 991, 992). He performed manifold gasket work on defendant's bucket trucks, replacing the original gaskets (Tr. 994), and from

11 N.Y.S.3d 420

1970 to 1979, he assisted with clutch work once every three months. (Tr. 995). After 1979, the garage serviced a fleet of 16 to 18 of defendant's bucket trucks. Clutch jobs were performed once or twice a week. (Tr. 996, 999, 1000).

Juni personally replaced or assisted with replacing clutches and installing replacement gaskets on defendant's C–8000s (Tr. 1036–1038, 1042, 1512) and brakes on defendant's service vans, F–250s, and F–350s (Tr. 1299–1300), and performing intake manifold work on its C–800s and C–8000s (Tr. 1505–1507). He assisted when others installed gaskets. (Tr. 1595).

Juni also repaired his own and his family's vehicles, which included defendant's vehicles. He changed the engines and exhaust, and built a hitch on the back of one of defendant's 1965 F–100. (Tr. 1077, 1083, 1084). He twice changed the brakes. (Tr. 1086).

B. Expert evidence

1. Dr. Steven Markowitz

To establish general causation, plaintiffs called Steven Markowitz, MD,...