In the New York County Asbestos Litigation (“NYCAL”), the value of remittitur is steadily decreasing because courts are willing to accept higher and higher awards. Although awards in comparable cases are not binding, appellate courts recognize that they offer precedent as to whether an award deviates from reasonable compensation.

Remittitur allows a court to set aside a jury award as excessive if it deviates materially from what would be reasonable compensation. Because personal injury awards, especially for pain and suffering, are subjective opinions which are formulated by the jury without the availability of guidance or precise mathematical quantification, reviewing courts seek guidance from comparable cases in deciding if an award deviates from fair and reasonable compensation.

In Konstantin v. 630 Third Avenue Associates, an award for pain and suffering was reduced by the trial court to $4.5 million for 33 months of pain and suffering and $3.5 million for an estimated 18 months of future pain and suffering. Similarly, in Dummit, the court sustained an award of $5.5 million for 27 months of past pain and suffering and $2.5 million for an estimated 6 months of future pain and suffering. On appeal, the Appellate Division, First Department, (July 3, 2014), upheld both the Konstantin and Dummit post-remittitur awards, in a much anticipated decision. On a similar scale, in Estate of Peraica (March 2013), after a jury awarded damages to a 63 year-old deceased mesothelioma plaintiff, the trial court reduced a $35 million jury verdict to $18 million for two years of pain and suffering.

In NYCAL (Assenzio v. A.O. Smith), Index No. 190008/12 (Sup. Ct., NY Co. February 5, 2015), the Hon. Joan Madden continued the judicial policy of remittitur inflation by pushing upward the accepted “per month” value of a pain and suffering award on remittitur. Judge Madden urged the parties to stipulate to an award that included for multiple plaintiffs $5.5 million for 20 months of past pain and suffering and $3.2 million for 6 months of future pain and suffering; $4 million for 18 months of past pain and suffering and $3.5 million for an estimated 24 months of future pain and suffering; $4.5 million for 30 to 36 months of past pain and suffering and an estimated $3 million for 18 months of future pain and suffering; and $5 million for 18 months of pain and suffering. The facts of each plaintiff’s course of treatment and disease purportedly warranted the court applying varying pain and suffering calculations.

There remains some hope for defendants to win significant remittiturs. The Matter of New York Asbestos Litig. v. John Crane, Inc., 28 A.D.3d 255 (N.Y. App. Div. 1st Dept. 2006) involved two plaintiffs: One was awarded $7 million for past pain and suffering and $7 million for future pain and suffering, while the other (a decedent’s estate) was awarded $8 million for past pain and suffering. Defendant appealed the decision, and the trial judge, the Hon. Paula J. Omansky, vacated the awards, suggesting the plaintiffs stipulate a reduction of their awards to $3 million for past pain and suffering and $1.5 million for future pain and suffering for the living plaintiff. This decision underscores the view that asbestos related verdicts can result in significant remittitur, although it is not clear from a review of the case law how or why a favorable result may be achieved in any particular case.

Nevertheless, seeking a verdict reduction in some NYCAL courts may seem like a futile exercise. The Matter of New York City Asbestos Litig. Alfred D’Ulisse v. Amchen Products, Inc., 842 N.Y.S.2d 333 (Sup. Ct. N.Y. Cty. 2007) reminds us of how large post-verdict awards can be. Plaintiff D’Ulisse was awarded $10,000,000 for past pain and suffering and $10 million for future pain and suffering. As if those awards were insufficient, the Hon. Louis B. York further awarded D’Ulisse’s wife $5 million for loss of her husband’s services and society. The judge held that the $25 million award did not “shock the conscience” of the court. Although there is no disagreement that this plaintiff suffered a gruesome degree of suffering, an award this gargantuan is certainly subject to debate and undoubtedly shocks the conscience of many.

On the other hand, in a similar battlefield just outside the purview of NYCAL, the Second Department has at least on occasion considered inflated jury verdicts unreasonable. In Aguirre v. Long Island Railroad Co., 847 N.Y.S.2d 895 (Sup. Ct. 2nd Dept. 2007), a Brooklyn jury awarded three plaintiffs $2 million, $3 million and $4 million, respectively, for past pain and suffering, and the same amounts for future pain and suffering. Defendant LIRR moved for a new trial on damages, or at the very least the grant of a remittitur. Although declining the latter option, the Hon. Lawrence S. Knipel granted a new trial for damages, deeming the awards to have “materially deviate[d] from what would be reasonable compensation.” The judge did, however, give plaintiffs the option to reduce the award on their own accord by a total of $300,000 each. Nevertheless, this evidences the understanding, at least by some members of the bench, that asbestos awards can at times be inexplicably exaggerated.

Although there can be no question that mesothelioma plaintiffs endure horrendous pain and suffering, it is nonetheless difficult to justify how reviewing courts can assign pain and suffering valuations on remittitur that so greatly exceed the valuations assigned to similar cases only a few short years ago. It may appear to corporate defendants, particularly those with marginal liability, that NYCAL penalizes defendants that go to trial rather than give in to extortionate settlement demands. It is more or less impossible for corporate defendants to create a reliable matrix of potential exposure based upon “per month pain and suffering” because the post-trial valuation of pain and suffering continues to go up and up, seemingly without rhyme or reason. It is therefore all the more challenging for an in-house counsel or an insurance claims examiner to provide management an accurate forecast of liability exposure. The recent decision to permit punitive damages in NYCAL only further complicates the exposure calculus.