Seventh Judicial Dist. Asbestos Litigation, In re

• Decision Date: 05 February 1993
• Citation: 593 N.Y.S.2d 685,190 A.D.2d 1068
• Parties: In re SEVENTH JUDICIAL DISTRICT ASBESTOS LITIGATION. Matthew L. WAMBACH, Gertrude Mary Wambach, Respondents, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants, and Keene Corporation, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 685

593 N.Y.S.2d 685

190 A.D.2d 1068

In re SEVENTH JUDICIAL DISTRICT ASBESTOS LITIGATION Matthew L. WAMBACH, Gertrude Mary Wambach, Respondents, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants and Keene Corporation, Appellant.

Supreme Court, Appellate Division Fourth Department.

Feb. 5, 1993.

McCarter & English by Thomas Chaves, Newark, NJ, for appellant, Keene Corp.

Faraci, Guadagnino, Lange & Johns by Matthew Belanger, Rochester, for respondents.

Before GREEN, J.P., and PINE, BALIO, DAVIS and DOERR, JJ.

MEMORANDUM:

Defendant Keene Corporation appeals from an interlocutory judgment entered upon a jury verdict finding Keene liable for its involvement in the manufacture, distribution or sale of defective products containing asbestos and finding that Keene's conduct in the sale of those products during the years 1966-1975 was so wanton and reckless that the imposition of punitive damages was warranted. On appeal Keene contends (1) that Supreme Court abused its discretion in granting plaintiffs' motion for a joint trial of all pending asbestos cases in the Seventh Judicial District; (2) that the imposition of repetitive punitive damage awards for the same course of conduct, which resulted from the court's granting of a joint trial on the issue of punitive damages, violated Keene's right to due process under the Fourteenth Amendment of the U.S. Constitution; (3) that the trial court erred by refusing Keene's request that the jury be instructed that plaintiffs were required to establish entitlement to punitive damages by clear and convincing evidence; and (4) that various evidentiary rulings deprived Keene of a fair trial.

Supreme Court did not abuse its discretion in directing that certain common issues be tried jointly (see, In re Asbestos Products Liability Litigation [No. VI], 771 F.Supp. 415).

In our view, Keene's constitutional challenge to the verdict on punitive damages is premature. Supreme Court determined that the critical issues in this case be tried in two phases. During the first phase, one jury would determine common issues concerning the liability of defendants for the manufacture, distribution or sale of products containing asbestos and whether the conduct of the defendants was so wanton and reckless as to warrant the imposition of punitive damages. During the second phase, the various plaintiffs would be obliged to prove at separate trials the existence of a causal relationship between a defendant's conduct and the injuries sustained and, upon establishing causation, the amount of punitive damages that should be awarded to each plaintiff. At those second phase trials, Keene will have the opportunity to present evidence of the amount of punitive damages it has been directed to pay in prior cases for the same conduct. Until relevant facts are established in the record, the court cannot adequately review whether a...