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June 15, 1998



The opinion of the court was delivered by: SWEET


Sweet, D.J.

 After twenty-five days of trial, the jury awarded plaintiff John Consorti ("Consorti") $ 12 million for pain and suffering. Defendant Owens Corning Fiberglas Corporation ("OCF") now moves for a new trial or a remittitur reducing Consorti's pain and suffering to an amount no greater than $ 3.5 million. Although the motion for a new trial or, in the alternative, a remittitur had been previously denied, revisitation of the issue in light of the United States Supreme Court's decision in Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996), is required. The Second Circuit has remanded the case to this Court for reconsideration of the motion for remittitur in conformity with the opinion of the Supreme Court.

 For the reasons set forth below, OCF's motion for a new trial is granted. However, its motion for remittitur of at least $ 8.5 million is denied. The remitted amount of Consorti's pain and suffering award, if Consorti acquiesces, will be set at $ 5 million.

 Prior Proceedings and Facts

 The procedural path that this case followed from its filing through trial and the first set of post-trial motions, as well as a detailed account of the facts, are fully recounted in prior opinions, familiarity with which is assumed. See In re New York Asbestos Litig., 847 F. Supp. 1086 (S.D.N.Y. 1994); 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). The prior proceedings and facts relevant to the instant motion are set forth below.

 Consorti owned 40% of Veteran Pipe Covering ("Veteran"), a family insulator business. He worked for Veteran as a pipe covering insulator from 1960 to 1963, and from 1970 to 1978. From 1963 to 1970, he worked as an insulator for another family business, State Pipe Covering. In 1978, he became Vice President of Veteran, a position at which he remained until 1992. While working at these businesses, and at least through the mid-1970s, Consorti was exposed to asbestos products, including OCF's product.

 Consorti began to suffer back problems in August 1991. In February 1992, he was diagnosed with pleural mesothelioma, an incurable cancer of the lining of the lung. He died after trial, at the age of 51, in November 1993.

 Consorti initiated this asbestos personal injury action against numerous defendants in this district in 1992. His suit was one of the many thousands of asbestos cases reassigned by the Multidistrict Litigation Panel to the Eastern District of Pennsylvania for discovery and pretrial proceedings. Because of his rapidly advancing illness, Consorti's case was remanded to this district for expedited trial.

 The trial of Consorti's action, which had been consolidated with three other cases of mesothelioma due to asbestos exposure, began on June 21, 1993. At trial, Consorti proved that his incurable fatal disease was caused by his ingestion and respiration of asbestos fibers. He demonstrated that he had endured enormous suffering from the mesothelioma and was likely to die within a few more months.

 On July 23, 1993, the jury in this action returned a verdict in favor of Consorti and his wife, Frances, against OCF. In doing so, the jury awarded nonpecuniary damages of $ 18 million, $ 12 million of which was awarded to Consorti for 32 months of pain and suffering. The jury awarded $ 8 million for approximately 23 months of pain and suffering prior to trial, and $ 4 million for what it estimated would be the suffering Consorti would endure during the final nine months of his life. The instant issue concerns the $ 12 million pain and suffering award.

 On January 21, 1994, this Court denied a motion for new trial or remittitur, finding that the award did not "shock the conscience" of the court, which "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." In re New York Asbestos Litig., 847 F. Supp. 1086, 1096 (S.D.N.Y. 1994) [hereinafter Consorti I ]. The holding was based largely on a comparison to awards permitted by other federal courts in asbestos cases filed in New York. See id. at 1095-98, 1141-43. In particular, the decision relied on the denial of remittitur of a $ 4.5 million award for pain and suffering in a mesothelioma case of 11 months duration. See id. at 1096-97, 1142-44 (citing 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 346 (2d Cir. 1993) [hereinafter McPadden]). Consorti I found that the award to Consorti did not shock the conscience based on its observation that the plaintiff in McPadden received a pain and suffering award of approximately $ 409,000 per month, see Consorti I, 847 F. Supp. at 1097, as compared to Consorti's award of $ 375,000 per month.

 The Second Circuit reversed, ruling that this Court had erred by (i) applying the "shock the conscience" standard rather than the less deferential "deviates materially from reasonable compensation" standard applied in the New York courts, see Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1009-15 (2d Cir. 1995) [hereinafter Consorti II ] (citing CPLR § 5501(c)), and (ii) relying largely on federal rather than state decisions in assessing the reasonableness of the award. See id. at 1012-13. The Second Circuit held that the appropriate comparison was to awards in mesothelioma cases of similar duration to Consorti's which were considered by Justice Freedman in cases litigated in New York Supreme Court. See id. at 1014. Finding that pain and suffering awards in New York state courts in comparable cases ranged from approximately $ 1 million to a maximum of $ 3 million, the Second Circuit concluded that "an award exceeding $ 3.5 million would deviate materially from what is deemed reasonable under New York law." Id. at 1015. *fn1"

 On July 1, 1996, the United States Supreme Court granted certiorari, vacated the Second Circuit's decision in Consorti II, and remanded the case to the Second Circuit for further consideration in light of Gasperini v. Center of Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996). See Consorti v. Owens-Corning Fiberglas Corp., 518 U.S. 1031, 116 S. Ct. 2576, 135 L. Ed. 2d 1091 [hereinafter Consorti III ].

 In Gasperini, the Supreme Court affirmed the Second Circuit's holding that, in a diversity action, state law governs the issue of remittitur, but reversed, finding it error for the Second Circuit itself to have applied the New York state court standard, CPLR § 5501(c) (as the Second Circuit also did in the instant case), instead of reviewing the district court's application of § 5501(c) for abuse of discretion. See Gasperini, 116 S. Ct. at 2225. *fn2"

 Following the Supreme Court's direction in Gasperini, the Second Circuit, on December 16, 1996, remanded the instant matter so that this Court could "reconsider the motion for remittitur, 'check the jury's verdict against the relevant New York decisions' and 'test [it] against CPLR § 5501(c)'s "deviates materially" standard.'" Consorti v. Armstrong World Indus. Inc., 103 F.3d 2, 4-5 (2d Cir. 1996) [hereinafter Consorti IV ]. The remand order clarifies that in assessing the size of Consorti's pain and suffering award, this Court must look to the "governing decisions of the New York state courts" rather than the "federal court precedents" that guided the earlier analysis. Id. at 4.

 OCF filed the instant motion requesting a new trial or, in the alternative, a remittitur reducing Consorti's $ 12 million pain and suffering award to no greater than $ 3.5 million on February 2, 1998. Oral arguments were heard on April 1, 1998, at which time the motion was deemed fully submitted.


 I. Legal Standard Applicable in Deciding OCF's Motion for New Trial or Remittitur

 In deciding a motion challenging the size of a verdict and requesting a new trial on damages, the Supreme Court has determined that a federal district court sitting in diversity should apply state law standards. See Gasperini, 116 S. Ct. at 2224 n.22. In New York, this standard is set by New York's CPLR § 5501(c), which provides that appellate courts are to review jury damage awards under a "deviates materially" standard. This is also the standard to be applied by New York trial courts. See Gasperini, 116 S. Ct. at 2218 (citing, inter alia, Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440 (4th Dep't 1994); Lightfoot v. Union Carbide Corp., 901 F. Supp. 166, 169 (S.D.N.Y. 1995)). Because Gasperini directs federal district courts applying New York law to employ the "deviates materially" standard rather than the federal courts' more rigorous "shock the conscience" standard to questions of the adequacy of a verdict, that standard will be utilized in reviewing Consorti's $ 12 million pain and suffering award.

 The standard "'for determining excessiveness and appropriateness of remittitur is somewhat ambiguous.'" Gasperini, 116 S. Ct. at 2217 (quoting Consorti II, 72 F.3d at 1012-13). Historically, New York courts, like those in the federal system and the majority of jurisdictions in the United States, applied the "shock the conscience" standard to determine the possible excessiveness or insufficiency of jury awards. However, "in 1986, in an effort to curb escalating awards, the New York legislature created a statutory standard designed to give courts greater discretion in monitoring verdicts." Geressy v. Digital Equip. Corp., 980 F. Supp. 640, 653 (E.D.N.Y. 1997) (citing Legislative Findings and Declarations, 1986 N.Y. Laws 470 (McKinney)). The statute provided for judicial review of jury awards. In relevant part, it reads:

In reviewing a money judgment . . . in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

 CPLR § 5501(c) (emphasis added). As asserted by the court in Geressy, "these last eight words, and in particular, the two phrases deviates materially and reasonable compensation provide a more complex challenge to a federal trial court than first meets the eye." Geressy, 980 F. Supp. at 653.

 "This legislation was apparently intended to relax the former standard of review and to facilitate appellate changes in verdicts." O'Connor v. Graziosi, 131 A.D.2d 553, 554, 516 N.Y.S.2d 276, 277 (2d Dep't 1987) (citations omitted). This new language has been understood by both courts and commentators as providing courts with greater latitude than the former "shocks the conscience" standard for reviewing and altering jury awards. See Gasperini, 116 S. Ct. at 2218-19 (stating that the "deviates materially" standard calls for closer surveillance than "shock the conscience" oversight and "in design and operation, [it] influences outcomes by tightening the range of tolerable awards"). Professor David D. Siegel, a leading New York civil procedure scholar, has written that "the amendment invites the appellate division's alteration of the [jury] verdict on the presumably lighter finding that the award 'deviates materially from what would be reasonable compensation.'" David D. Siegel, New York Practice 617 (2d ed. 1991).

 As mandated by Gasperini, to determine whether a particular award "deviates materially from what would be reasonable compensation," New York state courts look, as must be done here, to awards approved in similar cases. See Gasperini, 116 S. Ct. at 2218. Prior awards, however, are regarded by the New York appellate courts performing § 5501(c) review as not binding but instructive. See, e.g., Shea v. Icelandair, 925 F. Supp. 1014, 1021 (2d Cir. 1996) (noting that "lower state court decisions, while not binding, carry substantial weight"); Senko v. Fonda, 53 A.D.2d 638, 639, 384 N.Y.S.2d 849, 851 (2d Dep't 1976) (stating that prior awards "may guide and enlighten the court[s]" "in the exercise of their discretion"). Additionally, mindful that "the amount of damages to be awarded is primarily a question of fact . . . and [that] considerable deference should be accorded to the interpretation of the evidence by the jury, [the] discretionary power [a court possesses to alter a jury's damage award] is to be exercised sparingly." Duncan v. Hillebrandt, 239 A.D.2d 811, 657 N.Y.S.2d 538, 540 (3d Dep't 1997) (citations omitted); see Gasperini v. Center for Humanities, Inc., 972 F. Supp. 765, 768 (S.D.N.Y. 1997).

 The endeavor of demarcating an award in the instant case so that it does not deviate materially from reasonable compensation is complicated by the fact that each experience of suffering is unique. "The reverberations from a tragic event are not necessarily any more intelligible or quantifiable through an examination of other peoples' suffering." Geressy, 980 F. Supp. at 655. Still, the first step for any court attempting to develop a sense of what is reasonable compensation under the circumstances is the consideration of comparable injuries.

CPLR 5501(c) forces the court into the awkward position of attempting to do what the tort victim cannot -- analyze, classify and (implicitly) rank the affliction of one tort victim against that of another. In one sense this is an impossible endeavor. To measure the impact of a tragedy in the life of one person vis-a-vis another is beyond judicial (and perhaps human) capacity. Yet, if the courts are to administer a fair and just tort system, they must work out methods, however imperfect, for evaluating and entering tort judgments under Gasperini.


 In facing the issue of remittitur in a case where the plaintiffs died from mesothelioma caused by occupational exposure to asbestos, Justice Lehner noted that:

the determination of what amount would so deviate is one of the most difficult decisions required to be made by a court. In appellate decisions there generally is no explanation of the reasons for a finding of a deviation. In making such determinations a court's obligation is to examine comparable injuries. However, similar injuries to two different plaintiffs may result in significantly different levels of pain and suffering, which makes the task of comparing the injuries in one case to those in another most formidable.

 In re New York City Asbestos Litig., N.Y.L.J., June 4, 1997, at 26 (N.Y. Sup. Ct. May 29, 1997) [hereinafter Dollas ]. *fn3"

 Theoretically, reasonable compensation is compensation that would make a plaintiff whole, as if he or she never suffered the injury. Some damage awards are quantifiable, such as lost earnings and past medical bills. Other awards, however, such as pain and suffering do not lend themselves as easily to computation. The New York Court of Appeals acknowledges that:

An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on the legal fiction that money damages can compensate for a victim's injury. . . . We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of ...

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