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ASBESTOS LITIG. THIS DOCUMENT RELATES TO: GREFF

November 5, 1997

ASBESTOS LITIGATION This Document Relates to: GREFF, McPADDEN, CILETTI,

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: SWEET

Sweet, D.J.

 Facts and Prior Proceedings

 Ciletti, 92 Civ. 3901, ("Ciletti "), Greff, 87 Civ. 8085, ("Greff "), and McPadden, 90 Civ. 3473, ("McPadden "), are three of the asbestos cases that have been supervised by the Multi-District Litigation Panel for discovery and pretrial purposes. Each of these actions was originally filed in the Southern District of New York and subsequently transferred by order of the Multidistrict Litigation Panel to the Honorable Charles Weiner of the Eastern District of Pennsylvania. They were then transferred back to this Court for trial purposes on the basis of hardship arising out of trial delay.

 The three actions were consolidated by opinion dated March 28, 1997, along with two others, Strafford, 92 Civ. 3900, ("Strafford ") and Moore, 88 Civ. 4214 ("Moore "). In re Asbestos Litigation, 173 F.R.D. 81 (S.D.N.Y. 1997). Of the consolidated actions, Ciletti, Greff, McPadden and Strafford proceeded to trial against defendants Raymark and John Crane, Inc., ("John Crane"). A sixteen day trial was held between May 20, 1997 and June 20, 1997.

 The claims in Ciletti are brought by Rosalie Ciletti, the widow of Alfred Ciletti. Mr. Ciletti worked as a sheet-metal worker at various shipyards between 1940 and 1973, including the Brooklyn Naval Shipyard from 1955 to 1966. Mr. Ciletti worked aboard several Navy vessels on which asbestos products manufactured by or sold by Raymark's predecessor, Raybestos Manhattan, were actually used. Testimony established that Raybestos Manhattan asbestos cloth was used on these vessels during sheet-metal work. In March of 1992, Mr. Ciletti was diagnosed with malignant mesothelioma, a cancer uniquely associated with exposure to asbestos, the symptoms of which had begun during the summer of 1991. On July 1, 1992, Mr. Ciletti died as a result of his cancer, survived by plaintiff Rosalie Ciletti, three children and a grandson.

 The claims in Greff are brought by Helen Greff, the widow of Joseph Greff. Mr. Greff worked as a welder at a shipyard between 1941 and 1984. Proofs at trial established that Mr. Greff regularly used asbestos cloth to protect himself from welding sparks. Testimony of Mr. Greff's co-workers established that Raymark's asbestos cloth was widely used at the shipyards where Mr. Greff worked. Supply buyers for both the Staten Island and Hoboken shipyards testified that they purchased asbestos products from Raybestos Manhattan. Mr. Greff developed malignant mesothelioma in the summer of 1985, and died from the cancer on March 25, 1986. He was survived by plaintiff Helen Greff, three children and six grandchildren.

 The claims in McPadden are brought by Ann McPadden, the widow of Martin McPadden. Mr. McPadden worked as a mechanic and steam fitter between 1957 and 1973 on several naval ships and in several power-generating stations. Testimony established that asbestos cloth sold and manufactured by Raybestos Manhattan was used in shipyards during the time Mr. McPadden was serving aboard ships undergoing repair. Testimony also established Mr. McPadden's exposure to packing material distributed by John Crane, in which Raybestos Manhattan asbestos yarn was used. Mr. McPadden was diagnosed with malignant mesothelioma in 1989. He died a little over one year after his diagnosis, on October 6, 1990. He was survived by plaintiff Ann McPadden, and his two daughters, one twenty-five years and the other fifteen years old at the time of his death.

 Discussion

 I. Raymark's Motion for Judgment as a Matter of Law or New Trial

 Motion for judgment as a matter of law is granted where:

 
(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it.

 Cruz v. Local Union Number 3 of IBEW, 34 F.3d 1148, 1154 (2d Cir. 1994) (quoting Bauer v. Raymark Indus., Inc., 849 F.2d 790, 792 (2d Cir. 1988)); accord Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537, 542 (2d Cir. 1994); Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mattivi v. South African Marine Corp, "Huguenot", 618 F.2d 163, 168 (2d Cir. 1980). The evidence must be viewed in the light most favorable to the non-moving party and must draw all reasonable inferences in its favor. Taylor v. National Railroad Passenger Corp., 868 F. Supp. 479, 482 (E.D.N.Y. 1994) (citing Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 60 (2d Cir. 1993)).

 A post-trial motion for judgment as a matter of law may not be asserted unless such a motion has also been made prior to submission of the case to the jury. Fed. R. Civ. P. 50(b); Piesco v. Koch, 12 F.3d 332, 340 (2d Cir. 1993); Taylor, 868 F. Supp. at 482. The grounds supporting the earlier motion must be specifically articulated, and may include explicit references to materials and arguments previously supplied to the court. Piesco, 12 F.3d at 340. The post-verdict motion for judgment as a matter of law may not assert any grounds which were not raised in the earlier motion. Lambert v. Genesee Hospital, 10 F.3d 46, 54 (2d Cir. 1993); Hilord Chemical Corp. v. Ricoh Electronics, Inc., 875 F.2d 32, 37-38 (2d Cir. 1989). The only exception to the requirement of a pre-verdict motion arises where denial of judgment as a matter of law would result in "manifest injustice." Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir. 1994).

 The standard for granting a new trial is less stringent than that for judgment as a matter of law. Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987); Bseirani v. Mahshie, 881 F. Supp. 778, 783 (N.D.N.Y. 1995) aff'd, 107 F.3d 2 (2d Cir. 1997). On a motion for new trial "the judge may set aside the verdict even though there is substantial evidence to support it." 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d, § 2806 at 65 (2d ed. 1995). The court may weigh the evidence for itself without viewing it in the light most favorable to the verdict winner. Id. at 67; Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992); Paper Corp. of the U.S. v. Schoeller Technical Papers, Inc., 807 F. Supp. 337, 347 (S.D.N.Y. 1992). Still, new trial may only be granted if "the court is convinced that the jury has reached a seriously erroneous result, or that the verdict is against the weight of the evidence, making its enforcement a miscarriage of justice." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988); Taylor v. National Railroad Passenger Corporation, 868 F. Supp. 479, 484 (E.D.N.Y. 1994). Where, as here, a party moves jointly under Federal Rules of Civil Procedure 50(b) and 59(a), the court must rule separately on each motion. 9A Wright & Miller, § 2539 at 361; Taylor, 868 F. Supp. at 482.

 A. The Court Did Not Err in Permitting Claim of Design Defect to Go to the Jury

 The theory of design defect permits a manufacturer to be found strictly liable for placing an unreasonably dangerous product in the stream of commerce, where the design defect was "known at the time of manufacture, and a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner." Denny v. Ford Motor Company, 87 N.Y.2d 248, 257, 639 N.Y.S.2d 250, 662 N.E.2d 730 (N.Y. 1995); see also McCarthy v. Olin Corp., 119 F.3d 148, 154-55 (2d Cir. 1997). The Court of Appeals has noted that, in design defect cases, "the alleged product flaw arises from an intentional decision by the manufacturer to configure the product in a particular way." Denny, 87 N.Y.2d at 257 n. 3.

 When the product is configured pursuant to government specifications, however, federal law protects the manufacturer from state law design defect liability. Boyle v. United Technologies Corp., 487 U.S. 500, 512, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988); In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 839 (2d Cir. 1992) ("Brooklyn Navy Yard "). To assert this so-called military contractor defense, a defendant must show the following three elements:

 
(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.

 Boyle, 487 U.S. at 512. The rationale for these elements has been further articulated by the Second Circuit:

 
It is not unreasonable to imagine that, as in this case, government contracts often may focus upon product content and design while leaving other safety-related decisions, such as the method of product manufacture or the nature of product warnings, to the contractor's sole discretion. In these instances, state law design requirements are displaced, although state law warning requirements are not.

 Brooklyn Navy Yard, 971 F.2d at 840. Because the military contractor defense does not displace state law warning requirements, the last element of the defense is of particular importance. Raymark submitted evidence regarding the government specifications according to which its product was manufactured, Raymark Exhibits 73 and 74, but did not submit any evidence regarding warnings made to the government. Because Raymark did not establish all the required elements of the military contractor defense, neither judgment as a matter of law nor a new trial on the design defect claim may be granted. See In re New York Asbestos Litigation, 847 F. Supp. 1086, 1108 (S.D.N.Y. 1994), aff'd in part, vac. in part, Consorti v. Armstrong World Indust. Inc., 72 F.3d 1003 (2d Cir. 1995), vacated, Consorti v. Owens-Corning Fiberglas Corp., 135 L. Ed. 2d 1091, 518 U.S. 1031, 116 S. Ct. 2576 (1996), on remand, Consorti v. Armstrong World Indust. Inc., 103 F.3d 2 (2d Cir. 1995).

 In its initial directed verdict motion, Raymark contended that it need not establish all elements of the military contractor defense because design defect claims are automatically barred where the contractor defense may be even potentially asserted. The cases cited by Raymark do not support this proposition. Brooklyn Navy Yard, 971 F.2d 831 (design defect claim barred by the military contractor defense after a full summary judgment briefing established all elements of the defense); In re Joint Eastern and Southern District New York Asbestos Litigation, 897 F.2d 626, 629 (2d Cir. 1990) (military contractor defense is compatible with failure to warn claim; no consideration of its affect on design defect claims); In re New York City Asbestos Litigation, 144 Misc. 2d 42, 542 N.Y.S.2d 118 (Sup. Ct. 1989) (same); Casabianca v. Casabianca, 104 Misc. 2d 348, 428 N.Y.S.2d 400 (Sup. Ct. 1980) (supplier to the military "in time of war" would have defense to any action based on design; decided prior to establishment of elements of military contractor defense by Boyle).


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