United States District Court, Eastern District of New York
July 26, 1990
IN RE JOINT SOUTHERN AND EASTERN DISTRICT ASBESTOS LITIGATION. ANNA GALLIN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JOHN GALLIN, DECEASED, PLAINTIFF,
OWENS-ILLINOIS, INC., DEFENDANT.
The opinion of the court was delivered by: McLAUGHLIN, District Judge.
MEMORANDUM AND ORDER
Plaintiff moves to set aside the jury verdict in this case.
Fed.R.Civ.P. 50(b). For the reasons discussed below, the motion
Plaintiff went to trial on asbestos-related claims for
wrongful death and product liability. Of the six defendants
named in the original complaint, five settled, leaving only
Owens-Illinois, Inc. to go to trial. Despite the absence of the
five settling defendants, the jury was required by New York law
to make specific findings as to the total amount of damages,
the portion of damages attributable to wrongful death, and the
percentages of liability for Owens-Illinois and for each
settling codefendant. N.Y.Gen.Oblig.Law § 15-108 (McKinney
The total amount of plaintiff's verdict was $239,800.00;
$55,000.00 of that verdict was for plaintiff's wrongful death
claim.*fn1 Plaintiff now moves for a judgment notwithstanding
the verdict. Fed.R.Civ.P. 50(b).
In substance, plaintiff makes a two-part attack, or more
precisely a two-stage attack, against the jury verdict. First,
she makes the general claim that the jury's allocation of
percentages of liability among the settling codefendants should
be stricken because defendant did not carry its burden under
New York law.*fn2 Second, plaintiff makes the more particular
claim that the jury's assessment of percentages of liability
against two specific settling codefendants (Eagle-Picher and
Keene Corporation) is wholly unwarranted by the evidence and
should be stricken outright.
Under the well-settled law in this circuit, plaintiff faces
more than a mere uphill battle to disturb a jury's verdict. To
grant a judgment n.o.v.:
[T]he trial court cannot assess the weight of
conflicting evidence, pass on the credibility of
the witnesses, or substitute its judgment for that
of the jury. Rather, after viewing the evidence in
a light most favorable to the non-moving party
(giving the non-movant the benefit of all
reasonable inferences), the trial court should
grant a judgment n.o.v. only when (1) there is
such a complete absence of evidence supporting the
verdict that the jury's findings could have only
been the result of sheer surmise or conjecture, or
(2) there is such an overwhelming amount of
evidence in favor of the movant that reasonable
and fair minded men could not arrive at a verdict
Mattivi v. South African Marine Corp., "Huguenot,"
618 F.2d 163
, 167-68 (2d Cir. 1980). See Stubbs v. Dudley, 849 F.2d 83
85 (2d Cir.), cert denied, ___ U.S. ___, 109 S.Ct. 1095, 103
L.Ed.2d 230 (1989); Newmont Mines Ltd. v. Hanover Insurance
Co., 784 F.2d 127
, 132 (2d Cir. 1986); Baskin
v. Hawley, 807 F.2d 1120
, 1129 (2d Cir. 1986); Mallis v.
Bankers Trust Co., 717 F.2d 683
, 688-89 (2d Cir. 1983).
The judgment against a defendant in a civil asbestos suit for
damages "is to be reduced by the amount of plaintiff's
settlements with former co-defendants, or by the amount of
consideration stipulated in plaintiff's release of them, or by
the proportion of fault that the jury attributes to them,
whichever is greatest." In re Joint Eastern and Southern
Districts Asbestos Litigation, 124 F.R.D. 538, 544 (E.D.N.Y.
1989). Plaintiff now argues that the jury's assessment of
percentage liability against the settling codefendants is too
high and unwarranted by the evidence. Therefore, according to
plaintiff, defendant should be allowed to offset the jury's
verdict only by the actual settlement amounts, and not by the
pro rata shares of liability fixed by the jury. Plaintiff's
Affidavit at 8.
Plaintiff first claims that the jury's allocation of 32%
liability to Eagle-Picher, a percentage equal to that assessed
against defendant Owens-Illinois itself, "calls for sheer
conjecture on the part of this jury." Plaintiff's Mem. at 2.
Plaintiff dismisses the decedent's exposure to Eagle-Picher
asbestos as "de minimis." Plaintiff's Reply at 1.
The record, however, does not support plaintiff's position.
At trial Donald Rocovich was called as a witness. Rocovich was
a co-worker of the decedent who stated on direct examination
that in addition to working with defendant's asbestos product
("Kaylo"), both men also worked with asbestos cement. Feb. 28
tr. at 25. Eagle-Picher was a manufacturer of asbestos cement.
On cross-examination Rocovich admitted that the decedent worked
with Eagle-Picher cement and that mixing the cement created
dust. Id. at 33-34.
Additionally, there is graphic deposition testimony of
Francis Brady which was read to the jury. Brady recalled that
sacks of dry cement emitted fibers when pouring "Eagle-Picher
Super 66 cement out of the bag." March 5 tr. at 157-58. Brady
placed the decedent at the scene and agreed that everyone there
inhaled the fibers. Id.
Plaintiff next challenges the 15% liability allocated to
Keene Corporation, another settling codefendant. The record in
support of liability against Keene may be the weakest among the
settling codefendants, but upon a careful review of the record
and a considered recollection of the testimony at trial, I am
satisfied that enough exists to support the jury's verdict.
A stipulation read to the jury after the Rocovich testimony
stated that Keene Corporation manufactured, sold or distributed
asbestos containing products. March 5 tr. at 79. When
previously asked whether he and the decedent were exposed to
Keene asbestos products, Rocovich did not say no. Feb. 28 tr.
at 42. Rocovich instead volunteered that "[t]here used to be a
shop called Keene." Id. The jury, in assessing credibility, may
have viewed Rocovich as a biased witness who "deliberately
focused" on the defendant's asbestos product only. Defendant's
Mem. at 10. Again, I cannot find the evidence to be so
overwhelming as to compel a reasonable jury to find no
liability against Keene. Mattivi, supra.
Plaintiff is intent on offseting the jury verdict just by the
actual dollar amount contributed by Keene to the settlement,
rather than the 15%, liability assigned to Keene by the jury.
See Audrieth v. Parsons Sanitarium, Inc., 588 F. Supp. 1380,
1381 (S.D.N.Y. 1984) ("Defendant's failure to present evidence
of the settling defendants' equitable shares did not constitute
a waiver of their right to relief. It merely constituted a
waiver of their right to relief based upon those equitable
shares rather than upon the settlement amounts."); Bonnot v.
Fishman, 88 A.D.2d 650, 450 N.Y.S.2d 539, aff'd, 57 N.Y.2d 870,
456 N.Y.S.2d 47, 442 N.E.2d 445 (1982) (because defendant
produced "no evidence" of proportional share liability
defendant allowed to offset verdict only by actual settlement
amount); see Cover, supra. Evidence involving Keene's products
did, however, come before the jury. While the issue may be
close, I am satisfied that the verdict, assigning 15% liability
to Keene, survives
plaintiff's post-trial attack.*fn3 See Stubbs, 849 F.2d at 85
("The standard for granting a motion for judgment n.o.v. is
The remaining facet to plaintiff's motion to set aside the
verdict concerns a broad-based claim that defendant did not
prove the equitable share — or percentage — of liability of
any any settling codefendant. I have reviewed the record,
including the testimony of defendant's medical expert, and
conclude that the verdict should stand. Mattivi, supra.
Plaintiff's motion to set aside the verdict is denied. The
parties are directed to submit a proposed Order of Judgment for