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July 26, 1990


The opinion of the court was delivered by: McLAUGHLIN, District Judge.


Plaintiff moves to set aside the jury verdict in this case. Fed.R.Civ.P. 50(b). For the reasons discussed below, the motion is denied.


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 1989).

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
  against him.

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 ...

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