Mesothelioma Verdict Reduced by $4.3 Million on Appeal Supreme Court, State of New York, November 8, 2017

NEW YORK — Plaintiff Mary Nash filed suit on behalf of the plaintiff’s decedent, Lewis Nash, alleging bystander exposure to asbestos-containing dust from defendant Navistar’s brakes and gaskets while working as a janitor and bus driver in the Fayettteville-Manluis Central School District. The decedent’s exposure occurred in the bus garage at the school, where decedent routinely spent time during his bus runs. The jury awarded the plaintiff the following: three million dollars in conscious pain and suffering; three million dollars in emotional pain and suffering between the onset of the decedent’s disease and death; 200,000 dollars for loss of services and society from the onset of the decedent’s disease until his death; one million dollars for wrongful death from the date of death until the verdict, and; 500,000 dollars for wrongful death from the date of verdict until the time decedent would have otherwise been expected to live. All told, the verdict amounted to 7.7 million dollars and Navistar was the only defendant remaining at trial.

The defendant filed the following post-trial motions: motion to set aside the jury’s verdict and dismiss the action; motion for new trial on all the issues; motion for new trial on the issues of allocation of fault or the award of future damages. Navistar advanced five separate arguments in support of its motions: 1) the causation opinions of the plaintiff’s expert, Dr. Abraham, were inadmissible and the plaintiff presented insufficient evidence of general or specific causation; 2) Navistar owed no duty to warn a bystander like the decedent and the plaintiff failed to provide sufficient evidence of causation with respect to the alleged failure to warn; 3) new trial should be ordered to correct errors in evidentiary rulings; 4) the court failed to instruct the jury on the issue of apportionment of liability; 5) the jury’s damage awards should be substantially remitted because they were based on legal errors and were otherwise excessive.

First, the court determined that Dr. Abraham’s testimony met the standards set forth in prior case law in that there was a foundation or scientific expression of an exposure level sufficient to cause the decedent’s mesothelioma, based on witness testimony of the frequency, duration, and level of the decedent’s exposure coupled with studies of the asbestos fiber content of dust generated by brake work in a garage setting. All of this constituted sufficient quantitative evidence of the decedent’s exposure to asbestos. Dr. Abraham did not rely on the “each and every exposure theory” and the jury was appropriately given the opportunity to resolve the credibility and contentions of the plaintiffs’ and the defendant’s experts.

Second, the jury could reasonably infer negligence and causation. Navistar provided no warnings on its brake products until the 1980’s. The cases cited by the defendant in its motion dealt with instances where alleged inadequate warnings were provided but not read by plaintiff, as opposed to no warnings given at all.

Third, there were no evidentiary errors because Navistar’s and the plaintiff’s experts were permitted to testify and generally agreed on the qualitative differences in the potency of chrysotile and other forms of asbestos. Navistar presented a considerable amount of evidence that exposure to chrysotile from brake work did not cause decedent’s mesothelioma.

Fourth, there was no prima facie evidence from which the jury could allocate liability or apportion equitable shares. Navistar had the burden to prove the proper amount of equitable shares of culpability attributable to other companies, including evidence of lack of warnings. Navistar failed to meet its burden to prove that any other companies were negligent in that they had notice of or disregarded the dangers of asbestos in their products.

Fifth, the court looked to recent jury awards with similar fact patterns, and subsequent reductions thereof, when determining whether remittitur was appropriate in the instant matter. The Appellate Division, First Department consistently held awards up to three million dollars per year for pain and suffering; the court reduced any verdict above that amount. With that guidance, the court held that the present verdict of six million dollars for pain and suffering was “excessive to the extent it exceeds three million” and reduced the verdict accordingly. The court followed similar logic when examining the wrongful death claims. The plaintiff offered no specific values of “the cost of a maintenance person, nurse, driver or any other individual to perform the types of services Mr. Nash provided for his wife” and therefore, the court reduced the total award for wrongful death from 1.5 million to 270,000 dollars, a similar reduction in award to other recent cases. Lastly, the court held that 200,000 dollars for loss of services and society was similar to other recent decisions and determined no reduction was necessary.

The total damages award was reduced from $7.7 million to $3.47 million; this award was to be further reduced by amounts collected from and/or to be paid by settled entities.

Read the full decision here.


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