NYCAL Court Sets Aside Portion of $22M Verdict and Recklessness Charge Supreme Court of New York, New York County, February 14, 2017

As noted in a prior ACT post, a NYCAL jury awarded plaintiff Frank Gondar $22M ($12M for past pain and suffering and $10M for future pain and suffering) in a living mesothelioma claim. Here, the jury found defendant Burnham failed to provide adequate warnings, which was a substantial contributing factor to Mr. Gondar’s disease, and allocated Burnham with 25 percent liability. Most notably, the jury found Burnham to have acted with reckless disregard for the plaintiff’s safety after the court charged the jury on this issue using the New York Pattern Jury Instructions [PJI 2:275:2]. In New York, under CPLR 1601[1] and 1602[7], a defendant is jointly and severally liable for 100 percent of the damages if the jury finds defendant “acted with reckless disregard for the safety of others.”

On December 7, 2016, the court heard defendant Burnham’s post-verdict motion seeking, among other branches of relief, an order vacating the verdict on various grounds and a new trial and/or remittitur. After both parties put forth a number of arguments, Justice Martin Shulman issued the following rulings:

  • There was sufficient evidence to uphold the jury determination that Burnham was 25 percent liable for Mr. Gondar’s injuries.
  • Gondar’s pain and suffering over the duration of 17 months is comparable to that in the Sweberg record. To stay consistent with that remittitur ruling, the court felt there was a basis to reduce the past pain and suffering award from $12M to $5M.
  • Under the circumstances of this case and getting guidance from other NYCAL cases, the court reduced the future pain and suffering award from $10M to $2M.
  • Finally, the court found there was error in giving the recklessness charge from the New York Pattern Jury Instructions. The court was left to consider two options: (a) follow the recent holding in Holdsworth and order a retrial on a framed issue or (b) simply vacate the reckless finding and uphold the jury’s verdict subject to the remitter set forth in the record. Justice Shulman then allowed each party to submit a letter determining the scope of his options.

After reviewing the letters submitted by the respective parties, the court issued a written decision on February 10, 2017. Justice Shulman found that based on a Fourth Department decision issued two weeks after this verdict (Matter of Eighth Jud. Dist. Asbestos Litig., 141 A.D.3d 1127, 35 N.Y.S.3d 615, 2016 N.Y. App. Div. LEXIS 5315, 2016 NY Slip Op 05460 (N.Y. App. Div. 4th Dep’t 2016)), and in the absence of any controlling precedent to the contrary, the court must grant Burnham’s post-verdict motion to set aside that portion of the jury verdict which found Burnham had acted with reckless disregard for the plaintiff’s safety. Because the court used the charge set forth in the Pattern Jury Instructions, and that charge does not accurately reflect the standard set by the Court of Appeals in Maltese, it in effect reduced the plaintiff’s burden of proof on his claim that Burnham acted with reckless disregard for his safety.

Accordingly, the court’s written decision ordered that:

The branch of Burnham’s post-verdict motion for remittitur was granted setting aside the jury verdict on discrete damage awards for past and future pain and suffering and granting a new trial on the issue of damages unless, within ten days after service of a copy of this decision and order with notice of entry, the plaintiff’s administratrix executes a stipulation agreeing to decrease the jury’s aggregate award for pain and suffering from $22 million to $7 million; and the branch of Burnham’s post-verdict motion is granted setting aside the jury verdict’s finding of recklessness and granting Burnham a new trial on the issue of Burnham’s alleged recklessness, unless the plaintiff’s administratrix executes a stipulation agreeing to withdraw or discontinue the recklessness claim.

Read the full decision here.


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