NYCAL Judge Rejects Causation Challenge; Reduces $75 Million Verdict to $17,250,000 Supreme Court of the State of New York, New York County, October 11, 2018
NEW YORK — Late Thursday night, NYCAL Justice Joan Madden issued a long awaited post-trial motion decision in Robaey v. Air and Liquid Systems, et al, NYCAL Index No. 190276/13, previously reported by ACT here. In January of 2017, a New York City jury returned a record setting $75 Million verdict, comprising $50 Million for plaintiff, Ms. Marlena F. Robaey ($40 Million in Past Pain and Suffering and $10 Million in Future Pain and Suffering), and $25 Million for derivative plaintiff, Mr. Edward Robaey ($15 Million for Past Loss of Consortium and $10 Million for Future Loss of Consortium). The verdict was found against two automotive gasket manufacturers, Dana and FelPro, who were both found reckless.
The Robaeys filed suit against numerous defendants in relation to Ms. Robaey’s peritoneal mesothelioma, which was allegedly caused by take-home exposures from her husband’s maintenance work at a local hospital and non-occupational automotive repairs performed in the plaintiffs’ home. In a post-trial motion both Dana and Felpro challenged the sufficiency of the plaintiffs’ causation evidence seeking judgement as a matter of law, and in the alternative for either a new trial or a substantial reduction of the $75 Million verdict. Dana settled with the plaintiffs during the pendency of the motion.
In her decision, Justice Madden granted the post-trial motion solely to the extent of reducing the jury award to $17,250,000, comprising $16 Million for Ms. Robaey ($12 Million in Past Pain and Suffering and $4 Million in Future Pain and Suffering), and $1,250,000 for Mr. Robaey ($1 Million for Past Loss of Consortium and $250,000 Million for Future Loss of Consortium.) Thursday’s remitted award is nearly $8 Million dollars higher than the largest New York appellate sustained asbestos award to date, $9.5 Million. Notably, the remitted value also relates to the longest asbestos pain and suffering period remitted to date, (52 months of Past Pain and Suffering, and 12 months Future Pain and Suffering) The remitted awards therefore correspond to: $230K per month in Past Pain and Suffering, $333K per month in Future Pain and Suffering, $19.2K per month in Past Loss of Consortium, and $20.8K per month in Future Loss of Consortium.
With respect to causation, Justice Madden denied FelPro’s challenge in its entirety. FelPro’s causation challenge was premised primarily on the First Department decision in Juni. (A primer on the Juni decision published by ACT in advance of the New York Court of Appeals oral argument to be held on October 16, 2018 can be found here.) In distinguishing Juni, Justice Madden observed that while the Juni “decision indicates the claims at trial involved asbestos exposure from work on defendant’s brakes, clutches and manifold gaskets, the decision addresses the quantification issues only with respect to brakes.” She therefore reasoned that the Juni decision did not assail the legal sufficiency of visible dust testimony with respect to the automotive gaskets at issue. Justice Madden additionally found that despite the Juni decision’s holding that the cumulative theory of exposure “is irreconcilable with the rule requiring at least some quantification or means of assessing the amount, duration, and frequency of exposure to determine whether the exposure was sufficient to be found a contributing cause of the disease,” Dr. Markowitz’s testimony that “the total cumulative exposure from all those opportunities for exposure and that dust from asbestos containing gaskets all contribute to the total dose that caused the disease” was credible to establish causation, so long as those exposures could be subjectively characterized as having “occurred repeatedly over a long period of time.”
The court further rejected Felpro’s post-trial challenge with respect to the jury’s finding of recklessness and various evidentiary rulings.