Supreme Court of New York, New York County; August 28, 2023
This matter involved plaintiff James McWilliams, who worked as a steamfitter from 1960 until his retirement in 1996. He claimed that his work consisted of installing heating, air conditioning, and sprinkler systems, including the installation of new piping systems and the renovation of existing systems. This work, he alleged, required him to install, maintain, and repair valves, some of which he identified as Jenkins. In September 2018, the plaintiff was diagnosed with mesothelioma and, following his diagnosis, he commenced an asbestos-related personal injury lawsuit against valve manufacturer, Jenkins, and 45 other entities. At the time the trial of this action commenced in November 2022, Jenkins was the sole remaining defendant.
At trial, the plaintiff’s principal claim was that his frequent exposure to asbestos through his work on Jenkins’ valves over the 36 years he was a steamfitter caused his mesothelioma diagnosis. The jury returned a unanimous verdict for the plaintiff and awarded damages in the total amount of $35,000,000 for past and future pain and suffering, allocating 90% of liability to Jenkins and 10% to a non-party.
Following the verdict, Jenkins moved pursuant to CPLR §4404(a) and §5501(a) for a judgment notwithstanding the verdict and an order for a new trial, or alternatively, a remittitur of a clearly excessive verdict. The plaintiff opposed the motion.
Pursuant to CPLR §4404(a), the court may set aside a verdict or judgment entered after trial, and direct judgment in favor of the moving party or grant a new trial, where the verdict is contrary to the weight of the evidence or in the interest of justice. In order to find that a verdict is against the weight of the evidence, the court must determine that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial.” Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 382 N.E.2d 1145, 410 N.Y.S.2d 282 (1978). Thus, if “it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus a valid question of fact does exist, the court may not conclude that the verdict is as a matter of law not supported by the evidence.” (Id. at 499). A jury verdict should not be set aside as against the weight of the evidence “unless the jury could not have reached its verdict on any fair interpretation of the evidence,” and “[g]reat deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the factfinders, who had the opportunity to see and hear the witnesses.” Desposito v. City of New York, 55 A.D.3d 659, 660-61, 866 N.Y.S.2d 248 (2nd Dep’t 2008).
Judgment Notwithstanding the Verdict
Jenkins argued that a judgment notwithstanding the verdict was warranted on the grounds that the plaintiff’s proof failed to establish causation with respect to Jenkins; that the trial evidence was insufficient to impose on Jenkins a duty to warn regarding insulation made or installed by others; that proof of the plaintiff’s future pain and suffering claim was legally insufficient; and that it should not have been charged on the CPLR §1602(7), which allows for joint and several liability, regardless of percentage apportionment, for a tortfeasor found to have acted with reckless disregard. As to the sufficiency of the causation evidence, the court found that the plaintiff testified extensively regarding his work on Jenkins valves, and the plaintiff’s experts used legally sufficient methods to establish specific causation. With regard to the trial evidence as to insulation, the court noted that the “practical necessity” of external insulation was sufficiently demonstrated by the plaintiff’s testimony, Jenkins’ own advertisements, and the testimony of its corporate representatives. With regard to the plaintiff’s future pain and suffering claim, the court found that while the plaintiff appeared absent of pain at trial that did not change the fact that he still had and would die from mesothelioma. And finally, with regard to the “reckless disregard exception” to Article 16’s liability limitation, the court found that the charge was appropriate in light of evidence that supported a recklessness finding. In sum, there was no basis for the court to grant a judgment notwithstanding the verdict.
Additionally, Jenkins argued that a new trial was warranted due to an OSHA-related charge given to the jury, which Jenkins argued effectively and improperly decided liability against it. The court briefly found that a plain reading of the charge did not support this contention, and case law is settled that a product manufacturer cannot delegate its duty to warn to another party, and compliance with OSHA does not relieve a manufacturer of this non-delegable duty.
Jenkins further argued that a new trial was warranted due to prejudice by the plaintiff’s counsel’s improper trial tactics, by the possibility that the jury heard the court’s sidebar remarks concerning a defense witness, and by the plaintiff’s counsel’s improper summation. The court found that these contentions were unsupported by the record.
Pursuant to CPLR 5501(c), the court may review a money judgment to determine whether the award is excessive or inadequate and whether a new trial should be granted, unless the parties stipulate to the entry of a different award. The standard to be applied is whether the award “deviates materially from what would be reasonable compensation.” Siegel, N.Y. Prac. § 407 (5th ed., 2014). In deciding whether an award deviates materially, courts must look to awards approved in similar cases, “bearing in mind that personal injury awards, especially those for pain and suffering, are subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification [citation omitted].” Reed v. City of New York, 304 A.D.2d 1, 7, 757 N.Y.S.2d 244 (1st Dep’t 2003), Iv. denied, 100 N.Y.2d 503, 791 N.E.2d 961, 761 N.Y.S.2d 595. The amount of damages awarded for a personal injury is generally and primarily a jury question, “which is entitled to great deference based upon its evaluation of the evidence, including conflicting expert testimony [citation omitted].” Ortiz v. 975 LLC, 74 A.D.3d 485, 486, 901 N.Y.S.2d 839 (1st Dep’t 2010). Jenkins argued the jury’s award in this matter ($13,000,000 for 51 months of past pain and suffering and $10,000,000 for two years of future pain and suffering) did not fall within the range of other awards for living mesothelioma plaintiffs that have been affirmed by the First Department. The court noted, however, that this plaintiff was unique in that he was older than most plaintiffs at the time of his diagnosis, had been arguably more active than average, underwent a different course of treatment, and has survived longer than typical. For these reasons, court found that it was not its purview to second-guess a jury’s consideration of these factors in light of the evidence presented at trial, or to speculate. Thus, given the deference that New York courts traditionally accord a jury’s deliberation in a subjective analysis of pain and suffering, the court did not find a basis for remittitur.
Read the full decision here.