State of New York, Supreme Court, County of Niagara, November 4, 2022
Plaintiffs Benedict Viglietta and Terri Viglietta alleged that Mr. Viglietta developed mesothelioma as a result of his exposure to asbestos while employed at a Durez chemical plant during the summers of 1974 and 1976. With respect to defendant Hedman Resources Limited, the plaintiffs alleged that Mr. Viglietta’s exposure to Hedman cationic fiber was a substantial factor in causing his mesothelioma. The plaintiffs further alleged that Hedman failed to provide an adequate warning and acted with reckless disregard for the safety of others.
On May 27, 2022, a jury found in favor of the plaintiffs and apportioned liability as follows: Hedman was 35% at fault and Johns Manville was 65% at fault for failing to provide adequate warnings. The jury awarded $1.5 million and $500,000 for past and future pain and suffering, respectively.
Pursuant to CPLR 4404, Hedman filed a motion seeking a judgment notwithstanding the verdict and an order granting a new trial. Hedman’s specific claims are as follows: (1) the evidence was legally insufficient to establish that Mr. Viglietta was exposed to a sufficient level of asbestos to cause his mesothelioma; (2) the court erred in quashing a trial subpoena served on Mr. Viglietta’s former employer; (3) the court erred in denying Hedman’s request for a jury charge that Mr. Viglietta’s former employer constituted an intervening superseding cause of Mr. Viglietta’s injury; (4) the court erred in charging the jury on reckless disregard for the safety of others; and (5) the jury’s finding of reckless disregard was against the weight of the evidence.
Under Nemeth v. Brenntag North America, a causation opinion in a toxic tort case must set forth “a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” Furthermore, as long as an expert’s methods used to establish causation are “generally accepted in the scientific community,” a plaintiff need not “quantify exposure levels precisely or use the dose-response relationship.” Upon review of Hedman’s challenge to specific causation, the court found that the plaintiffs’ expert’s testimony satisfied the Nemeth standard and therefore, denied Hedman’s motion to set aside the verdict and for a directed verdict based on the insufficiency of the expert testimony.
Next, the court concluded that the quashal of the subpoena did not prejudice Hedman and did not warrant a new trial based on the court’s previous determination that testimony from Mr. Viglietta’s former employer was not relevant to the failure to warn claim except for “caution statements.”
As to the court’s failure to charge the jury on Mr. Viglietta’s former employer constituting an intervening superseding cause, the court first explained that an intervening act may be a superseding act which breaks the causal chain where such intervening act is “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct.” While Hedman submitted proof that its bagged product contained a warning and argued that the warning was adequate, there was no evidence that Durez acted in a way that severed the causal chain between Hedman’s failure to warn and Mr. Viglietta’s injury.
The court also rejected Hedman’s claim that it was error to charge the jury on reckless disregard. Hedman invoked Article 16 of the CPLR by successfully seeking to have Johns Manville and other tortfeasors on the verdict sheet. In doing so, the plaintiffs were permitted to raise the reckless disregard exception.
Lastly, the court concluded that the evidence was sufficient to conclude that Hedman acted with reckless disregard to the safety of others. The plaintiffs’ evidence established that Hedman was on notice as to the danger its product posed to employees, Hedman denied such danger and the need for a warning, and Hedman reduced the size of the warning and altered the language on the basis that the product was not dangerous.
Accordingly, the court denied Hedman’s motion seeking a judgment notwithstanding the verdict and an order granting a new trial.
Read the full decision here.