pounds of newsprint, 50 pounds of elite, and approximately 70 pounds of wood pulp in the manufacture of "Orangeburg," yielding an asbestos content of over 14%. These ingredients were covered by a black coating.
While Flintkote attacked the credibility of the co-workers, enough evidence was presented to permit an inference that Tabolt handled the Flintkote pipe and that dust resulted.
The types of proof which were submitted in this case -- both circumstantial and otherwise -- are sufficient to support a finding of product exposure and causation. See, e.g., In re New York Asbestos Litig., 738 F. Supp. 66, 69 (E.D.N.Y. 1990), aff'd sub nom. Kreppein v. Celotex Corp., 969 F.2d 1424 (2d Cir. 1992). Plaintiffs in courts in this jurisdiction have demonstrated exposure to dust from abestos-containing products in order to prove asbestos exposure. See, e.g., In re Brooklyn Navy Yard Asbestos Litig. (Joint E. & S. Dists. Asbestos Litig.), 971 F.2d 831 (2d Cir. 1992); O'Brien v. National Gypsum Co., 944 F.2d 69 (2d Cir. 1991); Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir.), cert. denied, 498 U.S. 920, 112 L. Ed. 2d 250, 111 S. Ct. 297 (1990).
Flintkote has relied upon Nogan v. GAF Corporation, 1989 WL 161541 (M.D. Pa. May 24, 1989), where third-party John Crane brought a motion for summary judgment on the grounds that there was no proof that its products were friable, thus contending that there was no evidence that plaintiff was exposed to its products. In support of its motion, Crane submitted reports from experts who performed fiber release tests on its products which concluded that Crane's products did not release asbestos fibers when cut and handled. No proofs were submitted to rebut Crane's expert reports.
Here, from the evidence of asbestos in the pipe and the presence of dust resulting from handling the pipe in Tabolt's presence, the plaintiff sought to have the jury infer that the dust contained asbestos and that Tabolt's inhalation was the cause of his mesothelioma. That proof without contradiction required submission to the jury.
Although there were issues of credibility, there were sufficient facts established -- the nature of black pipe, the existence of two competing brands, the exclusivity of the brands resulting from the fittings, the inability to sell the Bermico brand to the Co-op, and the belief of the co-workers that "Orangeburg" pipe was sold at the Co-op -- for the jury to draw the inference that the Flintkote product was sold and produced dust when it was handled, and that Tabolt inhaled that dust which contributed to his mesothelioma.
The State-Of-The Art Evidence Was Properly Admissible Against Flintkote.
George v. Celotex Corp., 914 F.2d 26 (2d Cir. 1990), held that a manufacturer of asbestos-containing products is held to the knowledge of an expert in its field. Scientific discoverability, rather than actual knowledge, is the standard by which the relevancy of such evidence is to be judged. Therefore, the knowledge of Eagle Pitcher and Johns Manville establishes not only their own responsibility but the level of knowledge achievable by an expert in the field.
It is Flintkote's position that voluminous "state-of-the art" documents were admitted without an evidentiary showing of the authenticity of those documents. The position is unfounded, for while all objections were preserved, it was established that the state-of-the art documents would be admitted on relevancy grounds unless challenged as to authenticity based on the representation that deposition evidence had been introduced which established the source of the documents and the grounds for admissibility. Some such objections were made and heard. Otherwise the documents were admitted. No error is claimed by Flintkote with respect to any particular document.
Remittitur Is Not Appropriate With Respect to the Damages for Pain and Suffering
The authorities on the subject of excessive verdicts and remittitur are well known, have been cited effectively by both sides, and will not be repeated. They have recently been reviewed by this court in In re Joint Eastern & Southern Districts Asbestos Litigation, 827 F. Supp. 1014 (S.D.N.Y. 1993) (Maiorana), and Koerner v. Club Mediterranee, S.A., 833 F. Supp. 327 (S.D.N.Y. 1993). If remittitur is to be contemplated at all, reduction can only be permitted so far as the "maximum amount that would be upheld . . . as not excessive" and not a penny less. Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1330 (2d Cir. 1990); see also Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984). It is further understood that it is appropriate to refer to other determinations in other actions of a similar character, although the Honorable Charles Sifton has noted that asbestos litigation is at an early stage and there are not many years of experience or many verdicts upon which to build the necessary sense of consensus. In re Joint E. & S. Dists. Asbestos Litig., 798 F. Supp. 925, 938 (E.D.N.Y. 1992) (McPadden et al.), rev'd on other grounds, 995 F.2d 343 (2d Cir.), and rev'd on other grounds, 995 F.2d 346 (2d Cir. 1993).
Undoubtedly, as reflected in the record and as reviewed by his counsel, the pain and suffering experienced by Tabolt over the course of his illness was continual, severe and unrelenting. The jury's award of $ 7,500,000 for the ordeal of this 46 year old man was certainly not without basis in the record.
The principles relating to remittitur of multi-million dollar awards for pain and suffering in asbestos cases were set forth by Judge Sifton in In re Eastern & Southern Districts Asbestos Litigation, 798 F. Supp. 925, 936-38 (E.D.N.Y. 1992), rev'd on other grounds, 995 F.2d 343 (2d Cir.), and rev'd on other grounds, 995 F.2d 346 (2d Cir. 1993). After considering the appropriate authorities on the subject, both state and federal, he concluded with respect to the facts then before him that a verdict of $ 4.5 million was not excessive for a decedent whose pain and suffering had lasted for 11 months.
Judge Sifton also noted that the Honorable Helen Freedman, a Justice of the New York Supreme Court who also has had extensive experience in asbestos litigation, has allowed multimillion dollar awards for pain and suffering in the state court's Brooklyn Navy Yard consolidation.
It is fair to conclude that Justice Freedman no longer considers the factors which she found applicable to the remittitur of pain and suffering awards in asbestos-related personal injury suits in Didner v. Keene Corp., Index No. 27373/89, N.Y. Sup. Ct. (Dec. 17, 1990), reported in N.Y.L.J., January 4, 1991, at 22 col. 2, controlling in view of the subsequent verdicts. While the amounts of the verdicts in this action are undeniably high, the suffering has been acute, particularly in the case of Tabolt who had to endure agonizing trips to New York to obtain treatment which ultimately proved unavailing.
The conscience of courts must not remain fixed in time but must rather retain the capacity for change based on the experience of others and the determinations made in particular cases. At the same time, in asbestos cases in particular, given the scale of the litigation, it is desirable to search for any norms that can be properly established. Using Judge Sifton's determination provides just such a baseline related to time which can appropriately be applied in these cases.
In McPadden, Judge Sifton found that no remittitur was required for an award of $ 4,500,000 for pain and suffering caused by an asbestos-related disease of 11 month's duration. See In re Joint E. & S. Dists. Asbestos Litig., 798 F. Supp. 925, 937-38 (E.D.N.Y 1992), rev'd on other grounds, 995 F.2d 343 (2d Cir.), and rev'd on other grounds, 995 F.2d 346 (2d Cir. 1993). In Tabolt, the jury heard testimony that the plaintiff began to experience pain related to his mesothelioma in May 1991, (Tabolt Video Tr. at 31-32, 6/3/92), and Tabolt died in November of 1992. The jury's award, therefore, could reasonably have contemplated 18 months of pain and suffering. Duration is a factor that courts may consider in assessing an award for pain and suffering. Didner v. Keene Corp., Index No. 27373/89, N.Y. Sup. Ct. (Dec. 17, 1990), reported in N.Y.L.J., January 4, 1991, at 22 col. 2.
McPadden, therefore, was awarded $ 409,090.91 per month of pain and suffering. If he had suffered for 18 months, as did Tabolt, his award based on this rate would have been $ 7,363,636.36, which is only $ 136,363.64 less than the jury's award for pain and suffering to Tabolt. While the verdict in Tabolt exceeds the McPadden verdict, the judicial conscience is not shocked, given the circumstances of his injury.
While Judge Sifton's discussion of the McPadden verdict indicates that Judge Freedman may have reconsidered the conclusions that she reached in Didner with regard to awards for pain and suffering, he offered no similar discussion with respect to awards for loss of consortium. Again in an effort to achieve some consistency and to exercise an appropriate judicial conscience, the determinations in Didner as to consortium are applicable here as they were deemed to be in Maiorana. The application of the Maiorana and Didner standards to Tabolt require the reduction of the consortium award to $ 1.5 million.
In the absence of any evidence to support a claim of $ 50,000 for wages lost prior to death and any opposition to Flintkote's motion in that regard, as a matter of law the motion to strike that portion of the verdict must be granted.
The jury's calculation of lost future wages in the amount of $ 1,700,000 was derived from evidence adduced during the trial, including testimony that Tabolt worked to (and including) age 70. Using a growth rate of 5.5%, his future lost wages would amount to $ 1,352,584, after reductions for possible unemployment and personal maintenance. The record contains evidence particular to Tabolt that his wage growth rate between 1984 and 1990 was actually 8.75%, thereby providing a basis in the record for the increased award.
The jury was required to award and properly awarded "the full amount of future damages, as calculated without reduction to present value." N.Y.C.P.L.R. § 4111(f). Thereafter, N.Y.C.P.L.R. § 5041(e) requires the full amount of the future damage award to be reduced to present value by the court and then payments shall be made yearly with four percent to be added to each successive year's payment.
Flintkote's argument that this procedure provides a double recovery for inflation was rejected after thorough attention by the Appellate Division of the New York Supreme Court, Fourth Department, in Brown v. State, 184 A.D.2d 126, 128-29, 592 N.Y.S.2d 533 (N.Y. 1992), appeal denied, 81 N.Y.2d 711 (1993). There the court "concluded that the statute requires the trier of fact to account for inflation in making its award for future damages and, after the award is made, it requires the court to increase each subsequent annual installment payment by 4% over the previous year's payment." Although the court admitted that it was "unable to ascertain from the legislative history of the statute why the Legislature provided for a 4% increase in the annual payments after the trier of fact applies an inflationary factor in awarding the full amount of future damages," it found that "the statutory language is clear and the court properly complied with it. If there is to be any change in the method of computing the amount of awards for future damages, it must result from an amendment by the Legislature and not by a strained interpretation by the courts." Id. at 130.
Flintkote cites two cases, Alisandrelli v. Kenwood, 1990 U.S. Dist. LEXIS 2051 (S.D.N.Y. Feb. 27, 1990), and Peterson v. Zuercher, 152 Misc. 2d 684, 584 N.Y.S.2d 968 (Sup. Ct. 1992), which both predate and are of inferior precedential value to Brown. Both of these cases state, upon scant consideration, that Article 50-B of the N.Y.C.P.L.R. forbids juries to consider the effects of inflation in making an award for future damages. The more recent date and superior precedential value of the Brown decision, together with the lengthy attention given to this issue in Brown, establish it as the correct interpretation of the New York statute.
There Was a Basis For the Jury's Findings With Respect to Apportionment
In connection with apportionment, the jury was instructed to take the following two variables into account in determining the relative share of responsibility of the defendants and the non-party defendants:
(1) the degree of negligence of the conduct, and
(2) the extent of contribution to the causing of that plaintiff's illness.
With respect to the first factor, the degree of negligence, the jury was instructed:
If all other forces are equal you would apportion a greater share of responsibility to a company that manufactured, distributed, or sold a product containing asbestos, the conduct of which was seriously negligent, reckless and wanton, more than to a company whose conduct narrowly missed compliance with the requirements of reasonable care.