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January 21, 1994



The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 After twenty-five days of trial, the jury in this consolidated trial reached special verdicts awarding over $ 47 million in damages on behalf of plaintiffs John and Sharon Tabolt, John and Francis Consorti, Alfred and Joselyn Luchnick, and Peter and Anne Pulizzi against six defending corporations and a number of other settling and non-party defendants. These verdicts are annexed as Appendix A (Tabolt), B (Consorti), C (Luchnick) and D (Pulizzi) and were the subject of post trial motions of the defendants which are granted in part and denied in part as set forth below. The order of the dispositions will follow the order of the verdicts which were rendered. In addition, a number of issues are common to certain of the cases and will be dealt with as they arise. Those relating to the molding of judgments will be resolved after the consideration of particular verdicts.

 Prior Proceedings

 The procedural path that these cases followed from their filing to their eventual consolidation for trial in this Court is fully recounted in prior opinions, familiarity with which is assumed. See In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y. 1993); In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y. 1993). These cases were consolidated for trial by order and opinion of this Court dated February 12, 1993. See In re New York Asbestos Litig., 145 F.R.D. 644 (S.D.N.Y. 1993). On June 10, 1993, this Court denied several of the defendants' motions to reconsider the consolidation of these actions, and denied a motion by the Keene Corporation for a stay of this litigation. See In re New York Asbestos Litig., 149 F.R.D. 490 (S.D.N.Y. 1993).

 The Special Verdicts were rendered seriatim on July 22, 23, and 24, 1993, and on August 19, 1993 certain motions were filed seeking discovery with respect to judgment molding. Post trial motions pursuant to Rule 50(b) of the Federal Rules of Civil Procedure were made September 14. Oral argument concluded on the post-trial motions of all parties on October 14, 1993. On October 15, 1993, the plaintiffs' attorney supplied the Court with copies of his retainer agreements with the plaintiffs. On November 23, 1993, the plaintiffs' attorney sent to the Court by mail a copy of the decision of the New York Court of Appeals in In re New York County Asbestos Litigation, which is reported at 82 N.Y.2d 342, 624 N.E.2d 979, 1993 N.Y. LEXIS 3930, 604 N.Y.S.2d 884 (Nov. 18, 1993). These motions were considered fully submitted as of November 23, 1993.


 The Flintkote Company ("Flintkote") was the sole defendant, other than settling and non-party defendants, to the claims brought on behalf of Vincent Tabolt ("Tabolt"), who had been employed at the Lowville Builders Cooperative where he worked in the cement room and thereafter as a stock clerk. During the cement room period Tabolt was exposed to asbestos cement, but there was no identification of Flintkote products used during that period. Tabolt's exposure as a stock clerk to Flintkote roofing shingles and Flintkote Orangeburg pipe, a plastic pipe containing asbestos, and the extent of that exposure, was the determinative issue.

 The Tabolt Action Was Properly Consolidated

 The applicability of Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993), to the consolidation issues here was considered in the opinion of the Court dated June 10, 1993. See 149 F.R.D. 490 (S.D.N.Y. 1993). The factors considered there and in the prior opinion of February 12 included worksite, occupation, time of exposure, disease type, whether the plaintiff was alive or dead, discovery, counsel, and the existence of cancer, all relevant as to the issue of the ability of the jury to differentiate between parties and issues.


 In the four cases that went to trial there were ultimately two relevant worksites. Luchnick and Pulizzi had their exclusive exposure in the Brooklyn Navy Yard during the same years, 1942-45, and Tabolt's exclusive exposure was in the Lowville Farmers' Cooperative. Because of the nature of the product identification proofs in the Consorti case, which were not site specific, his numerous worksites were irrelevant and not the subject of proof. Because of their limited number, no confusion resulted from the worksites involved.


 Whatever the impact of dissimilar occupations might have been upon a defendant's "state-of-the-art" defense, none of defendants here made any attempt to distinguish state-of-the-art knowledge by occupation, such as users as opposed to bystanders, shipyard workers or construction workers, or even stock clerks. The distinctions made by the defendants were with respect to disease (asbestosis, lung cancer, and mesothelioma) and factory as opposed to end product exposure. Accordingly, as a practical matter, and for purposes of the instant inquiry, the occupations of the four plaintiffs were functionally equivalent from the point of view of state-of-the-art evidence.

 Times of Exposure

 Again, the actual offering and presentation of evidence to the jury, along with the limiting instructions given throughout the trial by the Court, clearly distinguished the applicable periods of time. Liability evidence dated after 1945 was carefully excluded in its offer, receipt, and presentation from the Luchnick and Pulizzi cases.

 Disease Type

 All four of the cases which went to trial dealt with undisputed mesotheliomas.

 The Living and the Dead

 At the time of trial, John Consorti ("Consorti") was still alive, but the fatality of his disease is certain. Since there was no possibility that the asbestos-related disease of the living plaintiff would not prove fatal, In re Joint E. & S. Dists. Asbestos Litig., 125 F.R.D. 60, 66 (E.D.N.Y. 1989), no prejudice could result from trying the claims of a living plaintiff with those who had already died.

 Discovery Status

 There has been no showing that consolidated discovery practices were in any way prejudicial.


 The commonality of plaintiffs' counsel favored consolidation and the cooperation and coordination amongst defense counsel also helped to avoid confusion.


 As mentioned above, all plaintiffs had the same type of cancer, pleural mesothelioma.


 Specialized notebooks with photographs of and undisputed biographical information about each plaintiff, along with a list of remaining defendants in each case, were provided to the jury, the members of which took copious notes throughout the trial.

 Demonstrative charts distinguishing the separate plaintiffs and the defendants in each case, along with exposure histories for each plaintiff, were used by counsel in their openings.

 Cautionary instructions were continuously given to the jury throughout the trial and in the charge concerning the admission of evidence limited to a certain case or a certain issue, and the need to consider each case separately. Moreover, where appropriate, counsel delineated offers of evidence by case and/or defendant.

 The summations of counsel addressed each claim separately, utilizing charts which included time lines in order to distinguish between the different relevant periods for liability purposes, as well as citations to the trial record for arguments regarding specific evidence.

 Detailed special verdict forms called for separate determinations of each issue in each case as to each party. There was no conflict between any of the verdicts and no confusion expressed or demonstrated in the rendering of separate verdicts in each of the cases, except as to the Court's charge on the non-economic consortium claim in Consorti, Verdict Question 5(h), where the jury awarded damages for the period of Consorti's normal life expectancy (26.2 years) instead of the 9 months it found he would survive with his mesothelioma, and the conflict in the answers on the Tabolt special verdict form as discussed below.

 A review of the Flintkote defense establishes that its position was unique and easily understood, namely, that Tabolt was not exposed to asbestos through its products. The distinctiveness of its position, in the context of the testimony and the limited number of products involved, precluded any confusion from arising out of the principal Flintkote defense. To consolidate the case, with the concomitant savings with resect to testimony concerning the state of the art and mesothelioma and its relationship to asbestos, was appropriate.

 There Was Sufficient Evidence on Exposure To Require Submission Of The Issue To The Jury

 The principal contention advanced by Flintkote in its defense to the Tabolt claim is that there was insufficient evidence of exposure to Flintkote products to permit the case to be submitted to the jury. The lynch pin of this defense was the quantum of proof that Tabolt handled the Flintkote product and that the product produced asbestos in an inhalable form.

 The Flintkote pipe at issue is black bituminous fiber pipe made from paper products mixed with asbestos into a pulp, cured in rolls, soaked in hot coal tar pitch (the bitumen), and manufactured by a division of the Flintkote Company called Orangeburg. The pipe had orange lettering spelling "Orangeburg" across the length of the pipe. No one at trial ever stated that the pipe at Lowville was seen to have the Orangeburg logo, and Tabolt himself prior to his death did not claim exposure to any black pipe although his duties included handling the pipe.

 Bourcy, a salesman for a supplier to the Co-op who sold a rival brand of pipe called Bermico, testified by deposition that he saw "Orangeburg" pipe at the Co-op, since he knew that the pipe sold was not his product and that only Bermico and Flintkote made such pipe at that time, and that therefore he assumed it to be Orangeburg. However, he also testified that, while he had assumed the pipe was Flintkote's, he did not know whether the "Orangeburg"-type pipe was Flintkote's, Bermico's or some other brand, and that he could have determined what brand of pipe he had seen if he had looked because Flintkote's pipe carried the distinctive imprint of the Orangeburg trademark.

 The co-workers at the Co-op testified that it was their practice to refer to all brands of black pipe as "Orangeburg" and that the pipe was a popular item with unique fittings so that competing pipe types are not interchangeable.

 Two of Tabolt's co-workers testified that Flintkote's Orangeburg pipe was sold at the Co-op in shipments of at least one hundred lengths of pipe twice a month through the summer months, that Orangeburg pipe was a popular product, and that there were only two types of black drainage pipe sold -- Orangeburg and Bermico. They also testified that the Co-op did not stock Bermico, that the fittings were different for Orangeburg and Bermico, that the pipe would break through the unloading process, that the pipe had a "dusty nature," and the dust would be suspended in air. Mrs. Tabolt testified that black and grayish dust was found on her husband's clothing and in his cuffs when she washed them.

 Dr. Steven Markowitz, Tabolt's expert, testified that, assuming dust was created in the handling and breakage of black, tar-coated, asbestos-containing fiber pipe, dust would be inhaled into the lungs. Dr. Markowitz was not permitted to testify as to any knowledge of Tabolt's mesothelioma but only generally as to dust containing asbestos fibers.

 Dr. Albert Miller, another plaintiffs' expert, testified generally with respect to the properties of asbestos and its ability to cause disease from dust containing asbestos. This general testimony was admitted as to all claims.

 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. *fn1" 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. *fn2" 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.

 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.

 (Tr. at 4503 7/22/93.)

 Therefore, the defendant who was more negligent, who acted wantonly or recklessly, should bear a greater share of the ...

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