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Joint Compound Defendant Post-Trial Motions Denied

Court: Supreme Court of the State of New York, County of New York

In this asbestos action, Munir Seen alleged he developed mesothelioma from asbestos exposure from various products, including joint compound from defendant Kaiser. The plaintiff’s experts included Drs. Jacqueline Moline and David Rosner. In June 2022, a jury awarded the plaintiff $15 million and allocated 70 percent of the fault to Kaiser. Following the trial, Kaiser moved for three forms of post-trial relief. Ultimately, the court denied Kaiser’s motions in their entirety.

Kaiser first moved for judgment notwithstanding the verdict motion, 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. 

In Nemeth, the experts used a glove-box simulation to estimate the exposure to cosmetic talc in the plaintiff’s home. In this matter, the plaintiff’s expert compared decedent’s deposition testimony with historical industrial hygiene data, measurements from studies involving real-world monitoring of persons performing drywall work, and Industrial Hygienist Steven Paskal’s report who provided “numerical exposure estimates for decedent’s work with joint compound.” The court explained that “Plaintiff, through its experts, then demonstrated that decedent’s exposure to Kaiser’s joint compound was sufficient to have caused his mesothelioma.” Therefore, the court found that there was a sufficient factual basis for the jury’s determination that exposure to Kaiser’s product was a contributing factor in decedent’s contracting mesothelioma. 

In addition, Kaiser made three separate arguments for a new trial. First, Kaiser contended that the court improperly admitted the decedent’s de bene esse deposition, which was taken before Kaiser was impleaded into the action. However, the court found that Kaiser deposed decedent but also chose to forego its own videotaped deposition. As such, “[i]n light of its having had the opportunity to cross-examine decedent before his death, Kaiser has failed to establish that it was prejudiced by the admission of the de bene esse deposition at trial.” Further, the court rejected Kaiser’s contention that it was prejudiced by precluding Kaiser from cross-examining Dr. Moline as to her opinions regarding other companies identified in her report as this decision was in line with In re New York City Asbetos Litig. (Idell). The court explained that “”[a]t the time she finished testifying, Kaiser had not laid any foundation for proving the elements needed to apportion fault to those other companies.” Third, the court determined that plaintiff’s expert disclosures “gave notice that plaintiff would be introducing evidence of talc as a source of asbestos in Kaiser’s joint compound.”

Last, Kaiser requested a remittitur of a clearly excessive award as per CPLR 5501(c). The court noted that “[t]he standard to be applied is whether the award deviates materially from what would be reasonable compensation.” In support of its motion, Kaiser submitted several cases where courts have reduced the damage award to a monthly amount of $242,857 (In re New York City Asbetos Litig. (Peraica)) and $266,667 (In re New York City Asbetos Litig. (Macaluso)), respectively. However, the court noted that there are also several cases where larger damage awards were sustained, including $300,000 (In re New York City Asbetos Litig. (McCarthy)), $333,000 (In re New York City Asbetos Litig. (Koczur)), and $1 million(In re New York City Asbetos Litig. (Koczur)), respectively. In this matter, the jury’s award amounts to approximately $348,847. As such, the court did not find a basis for remittitur as the jury’s award is within the range of previous awards. Thus, the court denied Kaiser’s motion in its entirety.

Read the full decision here.