Plumb v. AC AND S., INC.

• Decision Date: 08 May 2003
• Citation: 305 A.D.2d 774,759 N.Y.S.2d 809
• Parties: HOWARD PLUMB et al., Respondents,<BR>v.<BR>A.C. AND S., INC., et al., Defendants, and<BR>SEARS, ROEBUCK AND COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

305 A.D.2d 774

759 N.Y.S.2d 809

HOWARD PLUMB et al., Respondents,

v. A.C. AND S., INC., et al., Defendants, andSEARS, ROEBUCK AND COMPANY, Appellant.

Decided May 8, 2003.

Spain, Lahtinen and Kane, JJ., concur.

Crew III, J.P.

In February 2000, plaintiff Howard Plumb was diagnosed with mesothelioma, a cancer of the pleura attributable to asbestos exposure. In May 2000, Plumb and his wife, derivatively, commenced this action against, among others, defendant Sears, Roebuck and Company (hereinafter defendant) and General Electric Company (hereinafter GE) alleging that Plumb had been exposed in 1941 to asbestos-containing products manufactured by GE and, between 1950 and 1960, to asbestos-containing products sold to Plumb by defendant.

Following joinder of issue and considerable discovery, GE settled with plaintiffs and a jury trial commenced against defendant alone. At the conclusion of the trial, the jury rendered a special verdict, awarding damages to plaintiffs in the amount of $1,500,000 and apportioned 98% of responsibility to GE and 2% to defendant. Thereafter, plaintiffs moved to set aside the verdict as it pertained to GE, which motion was granted, prompting this appeal by defendant.

We affirm. It is axiomatic that a verdict may be set aside and judgment entered notwithstanding such verdict where "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978] [emphasis added]). Put differently, a court may grant such a motion where there is no competent evidence to support an issue in question. Here, defendant sought apportionment based upon GE's negligent manufacture of asbestos-containing electrical cable, which Plumb allegedly worked with for a three-month period in 1941 while employed as an electrician's helper at an Alcoa plant in the Town of Canton, St. Lawrence County. The bases for the jury's conclusions that Plumb was exposed to asbestos and that the GE cable was the source of such exposure are founded upon the following questions and answers from Plumb:

"Q And did there come a point during your 3 months at Alcoa that you believed that you were exposed to asbestos?

"A I think I may have been. As an electrician's helper I had to skin back cable before I connected it to junction boxes; and in getting the top layer off I would come down to a gray substance that I thought, at least, the flaking off, had asbestos in it.* * *

"Q Do you believe you had any asbestos exposure when you worked at Alcoa?

"A Yes, I do.

"Q How do you believe you were exposed to asbestos?

"A Well, because we were moved, as I said, from, would have to wire this and wire that. I was, first of all, in skinning the cable. After we got the outside, heavy, black layer off, usually the grayish or substance inside, I didn't notice at the time, I would say, but it was an asbestos-type of material because of the high intensity of the heat generated from the cable.* * *

"Q Just a few more questions, Mr. Plumb; and I will be done. I want to turn, if I could, you mentioned that you worked at Alcoa for three months and a couple of weeks; and I thought you mentioned that you worked with a wire that you believe contained asbestos in it, correct, a cable?

"A Yes.

"Q Do you remember the manufacturer of that cable?

"A I don't.* * *

"Q Once again, sir, do you remember being asked the following questions, Mr. Plumb, page 58 of the deposition. Says here,

"Q I am sorry to have to interrupt you. Do you know the manufacturer or brand name of any of the wire cable that you were stringing? A Only one I remember is General Electric.'"

The record is bereft of any other proof that the electrical cable in question in fact contained asbestos,^[*] and we find the foregoing testimony to be wholly speculative and consequently legally insufficient in that regard. Accordingly, the order and judgment must be affirmed.

Carpinello, J. (dissenting).

Upon my review of the record, I conclude that, while the verdict as it pertained to defendant General Electric Company (hereinafter GE) may very well be against the weight of the evidence, thus warranting a new trial, it is not legally insufficient. Accordingly, I respectfully dissent.

As noted by the majority, in order to set aside a verdict as unsupported by legally sufficient evidence, "[i]t is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Here, the jury's conclusion that GE cable was a source of plaintiff Howard Plumb's exposure to asbestos is supported by various evidence. As recognized by the majority, a series of questions and answers during...