New York Supreme Court, April 24, 2019
NEW YORK — In James and Lynn Stock v. Air & Liquid Systems Corp., et al, the Supreme Court of The State of New York, Eighth Judicial District, recently considered the defendant’s and the plaintiffs’ post-trial motions. At the trial of the original case, the plaintiffs James and Lynn Stock (plaintiffs) filed suit for James Stock’s (Stock) mesothelioma allegedly caused by exposure to asbestos while he was employed at New York Wire Mills in Tonawanda, NY from 1979 through 1986. The plaintiffs argued that Stock’s work with asbestos-containing materials used in and on valves supplied by the defendant was a substantial factor in the development of his illness.
The jury trial began on August 24, 2018 with one remaining defendant. On September 14, 2018, a verdict was rendered which found that Stock was exposed to asbestos-containing gaskets or packing used in connection with the defendant’s valves; that the defendant failed to exercise reasonable care by not providing a warning about the hazards of asbestos-containing gaskets or packing used in connection with its valves; and that the failure to warn Stock was a substantial factor in causing his injuries. The jury awarded $4.5 million in future pain and suffering for a period of one year; $66,000 for past loss of earnings; $400,000 for future loss of earnings for a period of six years; $50,000 for past loss of consortium to Lynn Stock; and $450,000 for future loss of consortium for a period of 22 years. The jury allocated 50 percent of the responsibility for Stock’s injuries to the defendant, and allocated the remaining 50 percent amongst four other valve and pump manufacturers.
The defendant took issue with the verdict in all its particulars and moved for judgment notwithstanding the verdict and dismissal of the complaint, for a new trial, and remittitur to cure the excessive verdict. The plaintiffs moved for judgment as a matter of law awarding $367,307 in damages for loss of household services in the future, or in the alternative, for a new trial on that issue.
In its argument, the defendant alleged that in order to recover, the plaintiffs had to prove that the defendant’s valves Stock worked with and around contained asbestos or used asbestos-containing components when they left the factory. The defendant argued that the plaintiffs failed to establish that Stock’s mesothelioma was caused by his work with the defendant’s valves. The defendant further argued that it was deprived of a fair trial because three co-defendant pump and valve manufacturers failed to comply with subpoenas for trial testimony of their corporate representatives. Therefore, the defendant argued that the testimony was sought on issues of liability, including allocation, as well as arguing that the jury’s allocation of fault was against the weight of the evidence. The defendant further argued that the court made several evidentiary errors with regards to the defendant’s and the plaintiffs’ experts, each requiring a new trial. The defendant further argued that the jury’s award for Stock’s past and future pain and suffering was excessive and should be reduced.
In response, the plaintiffs cited the testimony of Stock, the defendant’s corporate representative, the defendant’s product catalogs and literature, and the testimony of the plaintiffs’ expert Dr. Jacqueline Moline as evidence that the plaintiffs met their burden of establishing that Stock was exposed to asbestos used in, on and with the defendant’s valves. The plaintiffs also argued that the defendant was liable for injuries resulting from its failure to warn of the dangers of asbestos. The plaintiffs further argued that the opinions of Dr. Moline and another expert established specific causation.
In reviewing the arguments made by the defendant, the court held that there was ample evidence from which the jury could conclude that the defendant’s valves were manufactured and supplied with asbestos-containing materials. The court addressed several portions of evidence, including testimony given by Stock regarding his own asbestos exposure from working with the defendant’s valves; information contained in its catalogs and manuals about the use of asbestos packing and gaskets as early as 1925; the defendant’s former NYCAL interrogatory responses admitting that asbestos gaskets and packing were ingredients in its valves for pressure sealing and mechanical integrity; and testimony of the defendant’s corporate representative regarding the use of asbestos gaskets and packing in the defendant’s valves.
With regards to the failure to warn argument, the court evaluated the defendant’s motion based on the court’s decision in In re New York City Asbestos Litig. [Dummit], 121 A.D. 3d 230 (2014), where the court of appeals found manufacturers liable for injuries caused by asbestos dust released by scraping and removal of insulation and gaskets from valves. The court held that the defendant knew that asbestos-containing parts were needed to run its valves properly, and also knew that the packing and gaskets would need to be replaced with like kind replacements. The court referenced a the defendant’s manual detailing how to perform work on its valves, and also referenced Stock’s testimony regarding the use of asbestos-containing gaskets and packing to keep the valves functioning. The court also held that it was undisputed at trial that the defendant never gave any warnings concerning the use of asbestos with, in and on its valves.
The court also considered the defendant’s argument that the plaintiffs’ causation evidence was faulty in that it did not meet the quantification standard for specific causation set forth under New York Law in Parker v. Mobil Oil, 7 NY 3d. 434 (2006). The defendant further argued that the plaintiffs’ expert evidence lacked a proper foundation. The court held that the decision in Dominick v. Charles Millar & Son, 149 A.D. 3d 1554, 1555-56 (2017), while preceding the court of appeals decision in In re New York City Asbestos Litigation [Juni], 32 N.Y. 3d 1116 (2018), was instructive. The court specifically held that Juni did not create a new standard and continued to apply Parker and Cornell, finding the particular evidence was insufficient to meet the required standard. The court held that the Parker/Cornell standards as recognized in Dummit and Dominick were still the “rod” by which the court was to measure the proof. The court analyzed Juni, and distinguished it from the present case by discussing the plaintiffs’ experts being confronted with uncontested evidence regarding multiple issues related to brake dust, including epidemiological studies of mechanics finding no increased risk of mesothelioma from work with friction products. In the present case, Stock testified extensively regarding the removal of “crumbly, baked on, dusty” gaskets and packing. To further distinguish the present case from Juni, the court held that Dr. Moline was able to testify with references to studies showing that gaskets and packing contained up to 75 percent asbestos. Dr. Moline identified studies which quantified asbestos release from gasket and packing removal and replacement, as well as debris clean-up work. Since Dr. Moline testified several times that the levels of exposure which she quantified were capable of causing mesothelioma, her testimony sufficiently met the standards set forth in Parker.
The court further addressed the defendant’s argument that it was denied a fair trial due to co-defendants failing to respond to trial subpoenas. The court held that throughout the pretrial process, defense counsel was in contact concerning the scheduling of the trial witness depositions. However, the plaintiffs’ counsel and defense counsel agreed that the defendant could read a summary of past deposition testimony of the co-defendants’ corporate representatives. The summaries concerned the liability of co-defendants, obviating the need for living witnesses or reading of transcripts. Thereafter, counsel for the defendant withdrew the subpoenas. The court referenced that through this strategy, the defendant successfully allocated 50 percent of the liability to the co-defendants and one other party.
The court also held that the defendant’s claim regarding the jury’s allocation of fault were for the fact-finder, and must be upheld on any fair interpretation of the evidence. The court held that the jury was initially instructed that the defendant had the burden of proving that Stock was exposed to products of the other entities on the verdict sheet, that those entities were negligent in failing to warn and that this negligence was a substantial factor in causing his injuries. After these three findings were made, the defendant had to prove the “equitable shares” of responsibility. The court held that the apportionment made by the jury was a fair interpretation of the evidence.
With regards to the evidentiary issues related to the plaintiffs’ and the defendant’s experts, the court addressed the defendant’s argument regarding the denial of admission of a 1973 paper shown to the plaintiffs’ expert, David Rosner. The court held that the defendant failed to demonstrate that the paper had been published, that Dr. Rosner was familiar with the paper, or that he recognized it as authoritative. The defendant further argued that the court failed to preclude the opinions of Larry Spizman, Ph.D. Despite the fact that Spizman was not disclosed to the defendant until six months after the deadline was set by the discovery and trial submission schedule, the court held that it was received two months prior to trial. The court held that the defendant failed to show that the delay was willful or intentional, or that it was prejudiced by the late disclosure, as required for preclusion. The court further held that the plaintiffs’ efforts to seek economic damages was made clear through their own interrogatory responses. Lastly, the court addressed the defendant’s argument about the impropriety of excluding Gayle McCluskey from testifying at trial regarding a study she conducted in the 1980s. In a previous deposition of Ms. McCluskey, she admitted that the study was never reduced to writing, was never published, and she did not recall the results of every sample and the statistical analysis that Ms. McCluskey performed was “thrown away”. The court held that her testimony was disallowed because the witness could not be cross-examined on a study that did not exist. The court’s decision on this issue was unaffected by the issue that the plaintiffs did not move in limine to preclude this evidence. Therefore, the court held that the defendant’s claims of evidentiary error were unavailing. Furthermore, the court held that they failed to show that the alleged errors would affect the outcome of the trial.
The court further addressed the defendant’s claim that the pain and suffering awards deviated materially from compensation awarded in seven previous asbestos cases in the district and must be reduced. Those pain and suffering verdicts ranged from $600,000 to $2.5 million. In the present case, the court discussed the specific medical treatment and surgeries Stock underwent. The court relied on the opinions of Dr. Moline regarding Stock’s downhill health condition, and his inability to perform his daily activities without assistance. Therefore, the court held that the pain and suffering award encompassed the loss of enjoyment of life and the evidence supported Stock’s profound loss, and denied the defendant’s motion in this regard.
Therefore, the court denied the defendant’s motion in all respects.
The court analyzed the plaintiffs’ contention that the court erred in denying its request to charge the jury separately on loss of future household services. The plaintiffs claimed that the uncontroverted testimony of their expert economist indicated that the loss of future household services previously performed by Stock had a value of $376,307. The defendant argued that the economist stated that his “number” for loss of future household services was based on the number of hours of household services an average male would have performed. The defendant argued that the values were mere speculation, and that a chart relied upon in forming such opinions was inadmissible hearsay. The plaintiffs argued that the jury should be instructed that future damages for loss of household services should be awarded for those services which are reasonably certain to be incurred and necessitated by plaintiff’s injuries. The court agreed with the plaintiffs’ contention, but held that its instruction to the jury, “Derivative Action re: Spouse-Loss of Services” was adequate. Since the plain language of the charge and its title referred to loss of services, the court denied the plaintiffs’ motion.
Read the case decision here.