As previously reported in the Asbestos Case Tracker here, in June 2022 a jury awarded plaintiff Munir Seen $15 million, allocating 70 percent of the fault to joint compound manufacturer Kaiser Gypsum. Following the trial, Kaiser moved for three forms of post-trial relief. The court denied Kaiser’s motions in their entirety in March.
Kaiser first moved for judgment notwithstanding the verdict, contending that “plaintiff’s expert proof at trial . . . was defective and insufficient as a matter of law” as per the Court of Appeals’ decision in Nemeth v. Brenntag N.A., Inc. However, the court found “significant differences” between this matter and Nemeth, namely that the plaintiff’s expert, Dr. Jacqueline Moline, satisfied the applicable causation standard by relying on studies reporting actual measurements from work with joint compound and was able to provide estimated numerical levels of exposure to joint compound for the tasks the plaintiff performed during his career.
Kaiser also made three separate arguments for a new trial: that it was prejudiced by the admittance of decedent’s de bene esse deposition, its preclusion from cross-examining Moline as to her opinions regarding other companies identified in her report, and the introduction of evidence of talc as a source of asbestos in Kaiser’s joint compound. The court rejected all three arguments.
Lastly, Kaiser requested a remitter of a clearly excessive award as per CPLR 5501(c), citing to several cases where courts have reduced the damage award, including $242,857 (In re New York City Asbestos Litig. (Peraica)) and $266,000 (In re New York City Asbestos Litig. (Macalusco)) However, the court noted there are also several cases where larger damage awards were sustained, such as $300,000 (In re Asbestos Litig. (McCarthyr)), $330,000 (In re Asbestos Litig. (Koczur)), and $1 million (In re Asbestos Litig. (Koczur)) Thus, the court did not find a basis for remittitur as the jury’s award — ($15 million for 43 months of pain and suffering, or approximately $350,000 per month) — was within the range of previous awards and did not “deviate materially from what would be reasonable compensation.”
Kaiser filed a Notice of Appeal on March 24. A key issue on appeal will be whether the court erred in its finding that plaintiffs provided sufficient evidence of specific causation — that is, whether Moline’s export report established scientific expression of dose with sufficient, case-specific, specificity, to establish proof of causation that Kaiser’s joint compound product caused the decedent’s injuries pursuant to Nemeth.
Another key issue on appeal will be an assessment of the reasonableness of the pain and suffering calculation. This issue will be significant, as it will impact the range of acceptable pain and suffering calculations moving forward in asbestos matters, particularly in New York City Asbestos Litigation (NYCAL). We will continue to monitor this case for developments and report in the ACT.