insulation -- e.g., that it used warning labels on its products from 1962 on, and that its 1968 Sales and Application Manual required employees to be equipped with individual respirators.
On the issue of Mario & DiBono's negligence, USMP submitted evidence that, even though Mario & DiBono was contractually obligated to clean up the asbestos-containing debris remaining after its work, conditions at both sites were such that complaints were made against Mario & DiBono. USMP introduced testimony to show that certain employees complained to Castagna, the general contractor at Meadowbrook. USMP introduced documents to show that Tishman cited Mario & DiBono for allowing the insulation to blow into surrounding areas, and that at one point Tishman directed Mario & DiBono to stop spraying until it installed tarpaulins for protection from the dust.
Once such evidence is introduced, the question of Mario & DiBono's negligence become questions of fact which can only be appropriately resolved by a jury. There is no evidence on the record of the present motions that is sufficient to disturb the jury's finding of negligence on the part of Mario & DiBono.
6. The Defendants Are Not Entitled To A New Trial On Any Of The Aforementioned Grounds
While each of the various general grounds identified by the Defendants have been recognized as reasons on which United States courts have set aside jury verdicts and granted Rule 59 motions for new trials, the Defendants have failed to establish on the record of this trial that they are actually entitled to a new trial as a result of the defects and insufficiencies they specifically allege.
B. The Defendants' Motion For Remittitur Or, In The Alternate, A New Trial On The Ground Of The Excessiveness Of The Damages Awarded Is Granted
Remittitur is employed when a damage award "is intrinsically excessive in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error." Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984). An excessive award may "shock the judicial conscience," see Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1327 (2d Cir. 1990); Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990); O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988); Martell v. Boardwalk Enter., Inc., 748 F.2d 740, 752 (2d Cir. 1984); Malandris v. Merrill Lynch Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1168 (10th Cir. 1981) (en banc), cert. denied, 464 U.S. 824, 78 L. Ed. 2d 99, 104 S. Ct. 92 (1983); Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978); United States ex rel. Larkins v. Oswald, 510 F.2d 583, 589 (2d Cir. 1975).
A New York district court sitting in diversity may look to other jury awards condoned or remitted by the courts of New York state, Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir. 1984); see also Adrat v. Mt. Sinai Hospital, 110 A.D.2d 599, 488 N.Y.S.2d 613 (1st Dep't 1985); Heyer v. New York, 109 A.D.2d 662, 487 N.Y.S.2d 537 (1st Dep't 1985); Thornton v. Montefiore Hosp., 99 A.D.2d 1024, 473 N.Y.S.2d 758 (1st Dep't 1984); Griffith v. City of New York, 99 A.D.2d 692, 471 N.Y.S.2d 537 (1st Dep't 1984).
USMP contends that the damages awarded by the jury to the Plaintiff were excessive as the result of passion and prejudice and so great as to shock the judicial conscience. In support of this claim, USMP cites the decisions of the Honorable Helen Freedman, the New York State Justice assigned to handled New York's consolidated state-law asbestos cases, in Didner v. Keene Corp. (Sup. Ct., IA Part 30), reported in N.Y.L.J., Jan. 4, 1991, at 21. Justice Freedman's decisions on damages have been followed by other district courts in deciding the appropriateness of asbestos injury awards. See Asbestos Litig. III, 798 F. Supp. at 938.
In Didner, the decedent was an electrician who suffered from mesothelioma for a little over two years before dying in 1986. The total jury verdict of approximately $ 6,000,000 included an award of $ 3,250,000 for the decedent's pain and suffering and $ 1,500,000 for the plaintiff widow's loss of consortium.
Justice Freedman, following Jones v. Simeone, 112 A.D.2d 772, 492 N.Y.S.2d 270 (4th Dep't 1985), assessed the award for pain and suffering within the framework of four factors: duration, severity, degree of consciousness, and apprehension of impending death. See Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 428 N.Y.S.2d 535 (4th Dep't 1980); Tenczar v. Milligan, 47 A.D.2d 773, 365 N.Y.S.2d 272 (3d Dep't 1975). Although acknowledging that the decedent's pain and suffering was substantial, the court noted that prior awards of such size had involved cases where the plaintiff or decedent had been incapacitated for decades or more. The court found an award of $ 2,300,000 to be more appropriate, and reduced the award accordingly. Didner, supra at 21.
The court also found excessive the award of $ 1,500,000 for loss of consortium. Evaluating the evidence of the loss of physical services, yard care, child care, and intangible items such as spousal love and affection, see Christman v. Bailey, 38 A.D.2d 773, 327 N.Y.S.2d 966 (3d Dep't 1972) and Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 309, 239 N.E.2d 897 (1968), the court concluded the award was unjustified. Again, although the plaintiff submitted evidence that the marriage had been very close and that the damage to the marriage by the decedent's debilitating disease had been extensive, the court still found the amount excessive. Stating that the assessment of damages for such a claim must be based upon "the real injury done to the marital relationship," the court reduced the award to $ 500,000. Cf. Asbestos Litig. III, 798 F. Supp. at 938 (loss of consortium awards for $ 400,000 and $ 365,000 in two asbestos cases).
Based on this case, USMP asserts that both awards should be set aside. That is clearly too drastic in light of Justice Freedman's analysis: The noneconomic awards in Didner were reduced, not set aside. Pursuant to the decision in Didner, however, it would be appropriate to reduce the awards in order to bring the jury's award into line with standards prevailing for asbestos actions in the State of New York.
A federal court faced with a question of state law must follow the decisions of the state court of last resort, or, if the law is unsettled, do its best to guess how that court would decide the issue. See De Weerth v. Baldinger, 836 F.2d 103, 108 (2d Cir. 1987), cert. denied, 486 U.S. 1056, 100 L. Ed. 2d 924, 108 S. Ct. 2823 (1988). Where the highest court has not spoken, the best indicators of how it would decide often are the decisions of lower state courts. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967). While a federal court is not bound by lower state court decisions, they do have great weight in informing the court's prediction on how the highest court of the state would resolve the question. See In re Brooklyn Navy Yard, 772 F. Supp. 1380, 1390 (E. & S.D.N.Y. 1991). However, when ordering remittitur, the court should reduce the award by an amount which least intrudes upon the province of the jury, i.e., only to the maximum that would be upheld by the trial court as not excessive," Earl, 917 F.2d at 1328, 1330.
The Court of Appeals has already deferred to the anticipated opinion of the Appellate Division, First Department in Didner v. Keene Corp., 188 A.D.2d 15, 593 N.Y.S.2d 238 (1st Dep't), appeal granted, 81 N.Y.2d 707, 597 N.Y.S.2d 938 (1993), on the issue of whether settlements should be aggregated for the purposes of N.Y.G.O.L. 15-108 set-offs, and remanded the issue to the district court for reconsideration in light of First Department's anticipated decision in that case. See Brooklyn Navy Yard, 971 F.2d at 852. Under the circumstances, it would be appropriate for this Court to follow the logic of Justice Freedman in Didner, for her reduction in the awards was affirmed without discussion in the decision anticipated by the Court of Appeals for the Second Circuit. See Didner v. Keene, 188 A.D.2d at 15, 593 N.Y.S.2d at 238 ("The underlying action . . . resulted in a jury verdict of almost $ 6,000,000 that was ultimately reduced by the trial court.") Accordingly, following Didner, the award for pain and suffering should be reduced from $ 2,000,000 to $ 1,300,000, and the award for loss of consortium should be reduced from $ 1,000,000 to $ 500,000.
USMP also asserts that the jury's award of $ 300,000 to the decedent's two children for the present value of the loss of services and parental care and guidance was excessive. The jury awarded $ 100,000 for the loss of services and parental care and guidance from the time of the decedents' death to the present, and $ 300,000 as the present value of the loss of services and parental care and guidance in the future. At the time of trial, the decedent's sons were 20 and 24 years old.
USMP contends that a comparison of these two awards shows that the award for the future loss of services and parental care is excessive, especially since the evidence submitted to the jury did not indicate that the decedent would have continued to support his children after their majority.
However, that issue was put to the jury and considered by it. The jury charge specifically included the instruction that the jury was to consider the fact that Maiorana had no legal obligation to support his children, and that it was up to them to decide, based on the evidence before them, whether he would have done so. USMP has put before this Court no case where such an award for the loss of future parental care and guidance was reduced for this reason. Accordingly, the Court declines to reduce it now.
USMP contests no other portion of the damages. Although the third-party Defendants have moved for remittitur as one item in their omnibus motions, none of them have argued for any specific reductions in the itemized damages found by the jury. Therefore, the motion for remittitur is granted, and the awards are reduced accordingly.
C. The Motions of Tishman and Castagna for Indemnification Is Denied
At common law, a party who "had committed no wrong, but by virtue of some relationship with the tort-feasor or obligation imposed by law, was nevertheless held liable to the injured party," was entitled to common law indemnification. D'Ambrosio v. City of New York, 55 N.Y.2d 454, 461, 450 N.Y.S.2d 149, 435 N.E.2d 366 (1982). "Where one is held liable solely on account of the negligence of another, indemnification principles apply to shift the entire liability to the one who was negligent." Id. at 462; see also Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 516 N.Y.S.2d 451, 509 N.E.2d 51 (1987); Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 347 N.Y.S.2d 22, 300 N.E.2d 403 (1973).
Both Tishman and Castagna have moved for common-law indemnification against Mario & DiBono pursuant to Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) (shifting burden of accident to party directly responsible for danger).
Although Mario & DiBono was contractually responsible for applying and cleaning up the Cafco D spray on the interior of the WTC and at Meadowbrook Hospital, it was undisputed that both general contractors exercised control over the workplace.
The statutes mandate first instance liability on the owner or general contractor so that, with respect to the injured workman, the owner or general contractor cannot escape lability for accidents caused by his subcontractor. . . . All that would be changed by applying the Dole v. Dow doctrine uniformly is that, under familiar common-law principles, full indemnification can be recovered from the contractor who caused the accident (the active tort feasor) and where the cause is shared contribution under the Dole-Dow doctrine.
Kelly, 35 N.Y.2d at 6, 358 N.Y.S.2d at 753; see also Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630, 376 N.E.2d 1276 (1978) (contractual claim for indemnity).
Indemnity was considered more palatable to courts operating in the common law tradition than contribution, presumably as an extension of the theory that the courts would not sustain a claim by a defendant upon his own wrong. See Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 718 (2d Cir. 1978) (Friendly, J.). Indemnity under tort law could be founded upon a contract or a relationship which the courts interpreted to "imply" a contract, or "merely upon a difference between the kinds of negligence of the two tortfeasors; as for instance, if that of the indemnitee is only 'passive,' while that of the indemnitor is 'active.'" Slattery v. Marra Bros., Inc., 186 F.2d 134, 138 (2d Cir.), cert. denied, 341 U.S. 915, 95 L. Ed. 1351, 71 S. Ct. 736 (1951). "Where both are liable to the same person for a single joint wrong, and contribution, stricti juris, is impossible, the temptation is strong if the faults differ greatly in gravity, to throw the whole loss upon the more guilty of the two." Zapico, 579 F.2d at 718 (quoting Judge Learned Hand). Where the cause of the accident is shared, and contribution is permissible by law, the appropriate result is contribution and not indemnity. See Kelly, 358 N.Y.S.2d at 689.
In the case at bar, the comparative fault of all three contractors has already been determined by the jury, a finding which eliminates this distinction and bars the two contractors' claims for indemnity. Indemnity consists of a shifting of the entire cost, and is appropriate only when the party seeking indemnification is wholly not at fault.
In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, not the trial court, and a jury's finding of facts should be according great deference by a court. See Birnbaum v. All-State Vehicle, Inc., 139 A.D.2d 553, 527 N.Y.S.2d 52 (2d Dep't 1988). The court must ensure that its duty to oversee the proper administration of justice does not lead it to overstep its proper authority and unnecessarily interfere with this fact-finding function. See Zolli v. DuBois, 88 A.D.2d 951, 451 N.Y.S.2d 189 (2d Dep't 1982); Durante v. Frishling, 81 A.D.2d 631, 438 N.Y.S.2d 128 (2d Dep't 1981); Facteau v. Wenz, 78 A.D.2d 931, 433 N.Y.S.2d 238 (3d Dep't 1980); Ellis v. Hoelzel, 57 A.D.2d 968, 394 N.Y.S.2d 91 (3d Dep't 1977).
Here, there was sufficient proof to support a rational jury's findings that both Tishman and Castagna actively participated in the construction on the worksites and controlled Maiorana'a employer, Alpine. Both contractors had on-site inspectors and employees, and they directly coordinated the trade, had direct involvement in the order and timing of the subcontractors' work, and shared contractual obligations in the clean-up of the sites. The jury was charged on the law of negligence, and the jury found both Tishman and Castagna negligent and assigned the proportion of total liability for their negligence to each.
The jury's findings on the issue of liability were reasonable in light of the evidence before it, and the present motions of Tishman and Castagna for indemnification are justified neither by law or fact. Therefore, the motions are denied.
The Defendants' Rule 50(b) motions for judgment as a matter of law are granted. In the event this decision is appealed and the appeal is successful, the motion for remittitur is granted in the amounts stated above, and the motions of Tishman and Castagna for indemnification are denied. The verdict awards for pain and suffering and for loss of consortium will be set aside and a new trial ordered unless the plaintiff agrees to accept damages in the amount of $ 1,300,000 for pain and suffering and $ 500,000 for loss of consortium.
It is so ordered.
New York, N.Y., July 23, 1993
ROBERT W. SWEET