Konstantin v. 630 Third Ave. Assocs. (In re Re)

• Decision Date: 03 July 2014
• Parties: In re NEW YORK CITY ASBESTOS LITIGATION. Ruby E. Konstantin, etc., Plaintiff–Respondent, v. 630 Third Avenue Associates, et al., Defendants, Tishman Liquidating Corporation, Defendant–Appellant. Doris Kay Dummitt, etc., Plaintiff–Respondent, v. A.W. Chesterton, et al., Defendants, Crane Co., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 230

990 N.Y.S.2d 174

2014 N.Y. Slip Op. 05054

In re NEW YORK CITY ASBESTOS LITIGATION.

Ruby E. Konstantin, etc., Plaintiff–Respondent,

v.630 Third Avenue Associates, et al., Defendants,Tishman Liquidating Corporation, Defendant–Appellant.

Doris Kay Dummitt, etc., Plaintiff–Respondent,

v.A.W. Chesterton, et al., Defendants,Crane Co., Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

July 3, 2014.

Pillsbury Winthrop Shaw Pittman LLP, New York (E. Leo Milonas, David G. Keyko and Anne C. Lefever of counsel), and Patton Boggs LLP, New York (John M. Nonna, Larry P. Schiffer and Kate S. Woodall of counsel), for Tishman Liquidating Corporation, appellant.

K & L Gates LLP, New York (Michael J. Ross, of the Bar of the State of Pennsylvania, admitted pro hac vice, Eric R.I. Cottle and Angela DiGiglio of counsel), for Crane Co., appellant.

Belluck & Fox, LLP, New York (Seth A. Dymond of counsel), for respondents.

ANGELA M. MAZZARELLI, J.P., DAVID FRIEDMAN, LELAND G. DeGRASSE, ROSALYN H. RICHTER, SALLIE MANZANET–DANIELS, JJ.

MAZZARELLI, J.P.

From 1973 to 1977, plaintiff Ruby Konstantin's decedent, Dave John Konstantin (Konstantin) worked as a carpenter at two Manhattan construction sites where defendant Tishman Liquidating Corporation (TLC) was the general contractor. During that time he worked on a regular basis in close proximity to drywall contractors who sanded joint compound, and he was exposed to the dust from the sanding. The pre-mixed compound was manufactured by the Georgia Pacific, Kaiser Gypsum, and U.S. Gypsum companies, and contained asbestos. TLC supervised and controlled the work conducted at the building sites where Konstantin was employed, but took no steps to protect the workers from the hazards of exposure to asbestos dust. It admits that it became aware of those hazards approximately at the time that Konstantin was working at the sites. Indeed, it appears that TLC knew that asbestos was dangerous as early as 1969. Before working as a carpenter, Konstantin worked at a gas station, from the late 1960s to the early 1970s. As part of his job duties, he performed hundreds of brake jobs, sanding down brake pads made by the Bendix Corporation.

In January 2010, Konstantin was diagnosed with mesothelioma of the tunica vaginalis, an asbestos-related cancer of the tissue lining the testicles. He endured five surgeries, including the removal of one testicle and his scrotum; two rounds of chemotherapy; and one round of “broad-ranged” radiation. By the summer of 2010, the mesothelioma had spread to his pleura, the membrane that lines the lungs. Konstantin began to develop chest-related symptoms, and endured a simultaneous course of pain-reducing and other necessary treatment directed to the groin and chest. He suffered nearly three years of, in his words, “extreme pain and swelling,” which he characterized as often “unbearable” and a “10 out of 10” on the pain scale. Konstantin died on June 6, 2012.

From 1960 to 1988, plaintiff Doris Kay Dummitt's decedent, Ronald Dummitt (Dummitt), was an enlisted man in the United States Navy. From 1960 to 1977, Dummitt served on seven naval vessels as a boiler technician. The typical naval destroyer had two boiler rooms, each containing approximately 600 valves. The valves restricted or admitted the flow of steam or other fluid into the equipment. They contained gaskets, which were ring-like components used to seal, among other things, the internal valve bonnet. Packing was also used with the valves; the packing was a rope-like material used to seal the valve stem. Lagging pads were wrapped on the valves for insulation. These components were routinely replaced as a result of the extremely hot environment around the valves.

The majority of the valves used on the ships Dummitt worked on were manufactured by defendant Crane Co. For each type of valve, Crane provided a detailed drawing identifying the specific componentsand the exact system in which the valve was to be used. The purpose of furnishing the diagram was to create “standardization,” so the Navy would know exactly which replacement components to use with each valve. Crane also created Navy-specific symbol numbers, so that, for example, the correct components for a specific valve and system could be determined by reference to a component table.

While not every Crane valve used components such as gaskets, packing, and lagging pads made of asbestos, those that did were typically identified in the drawings. For these valves, Crane supplied the Navy with original asbestos gaskets and packing, made by other manufacturers, that was later branded as “Cranite,” Crane's in-house asbestos component brand. The standard asbestos components were assigned the symbol “1108.” The asbestos components were typically 85% asbestos and 15% rubber binder. Over time, Crane successfully lobbied the Navy to replace components made by other manufacturers with Cranite. In addition to the gaskets and packing, the lagging pads were also asbestos. The lagging pads were meant to provide insulation for the valves, a requirement for all equipment that would run higher than a temperature of 125 degrees. The Navy required Crane to test these pads prior to Naval use. Indeed, Crane helped write the Navy's machine manual, “Naval Machinery,” in 1946, which specifically directed the use of asbestos for insulation.

Dummitt testified that his exposure to asbestos came from having to maintain the valves. He admitted, however, that it was not the initial use of the valves and components that caused the release of asbestos dust, since the ships he served were too old for him to have been exposed to the original components. Rather, it was the process of replacing the components that caused the exposure. When a component needed to be replaced, the deteriorated gaskets would need to be scraped or wire-brushed off the valve. Packing would be pulled off with a hook and blasted with compressed air. In addition, before maintenance of the valves could be performed, the lagging pads needed to be removed, which also created dust. Indeed, Dummitt stated that it was almost impossible not to be exposed to asbestos dust when removing the pads. Dummitt conceded that he was never exposed to asbestos from products that were either supplied or sold by Crane.

Dummitt was diagnosed with pleural mesothelioma in April 2010. He endured four “very painful” thoracentesis procedures to relieve the “crushing” pressure in his lungs, thoracic surgery, a complete lung collapse, and three rounds of chemotherapy.

Konstantin, and his wife derivatively, commenced this action against TLC, among others, alleging that TLC was liable under Labor Law § 200 for negligently supervising and controlling the work of the drywall subcontractors, and was directly liable in common-law negligence for its own workers' power-sweeping activities, which created additional and greater asbestos dust exposure. Dummitt, and his wife derivatively, who were represented by the same lawyers as Konstantin and his wife, commenced a separate action against Crane, among others, alleging that Crane acted negligently in failing to warn Dummitt of the hazards of asbestos exposure for the components used with its valves, and that such negligence was a proximate cause of his injuries.

The two actions were grouped with a cluster of 10 cases and assigned to an in extremis calendar. Three of the plaintiffs suffered from lung cancer and seven from mesothelioma. Upon motion by all of the plaintiffs, the seven mesothelioma cases, including Konstantin's and Dummitt's, were set for a joint trial. In consolidating the cases, the trial court rejected defendants' contention that specific commonality of work sites and occupations was necessary for consolidation, finding that a strict construction of that requirement would not conserve judicial resources or reduce litigation expenses. The court noted that in the mesothelioma cluster, five of the plaintiffs were in the construction trade, and two worked on ships and alleged exposure from pumps and valves and their component parts. The court determined that the medical evidence would overlap, the “state-of-the-art” evidence would overlap, and there were sufficient commonalities among the types of work and manner of exposure to warrant consolidation.

Before the trial began, five of the mesothelioma cases settled, leaving only Konstantin's and Dummitt's to be tried. They were tried between July 5, 2011 and August 17, 2011. Only Konstantin testified live at trial; Dummitt was not well enough to come to court, and the jury viewed excerpts from his videotaped deposition. TLC was found 76% liable for Konstantin's injuries, and each of the three joint compound manufacturers 8% liable. The jury awarded Konstantin damages of $7 million for past pain and suffering, $12 million for future pain and suffering, $64,832 for past lost earnings, and $485,325 for future lost earnings, for a total of more than $19 million in damages. They also found that TLC was reckless.

Crane was held 99% liable for Dummitt's injuries, and Elliott, another defendant, 1% liable, for their negligence in failing to warn Dummitt about the dangers of asbestos. The jury determined that such negligence was a proximate cause of Dummitt's injuries and that Crane was reckless. Dummitt was awarded a total of $32 million, including $16 million for pain and suffering.

TLC moved to set aside the Konstantin verdict, arguing, inter alia, that the trials should not have been consolidated, that the jury's allocation of fault was improper, that the evidence did not support a finding that TLC was reckless, and that the damage awards deviated from reasonable compensation and should be remitted. The court granted TLC's motion to the extent of setting aside the damages verdict and ordering a new trial on the issue of damages, unless Konstantin stipulated to reduce the awards to $4.5 million for...