United States District Court, Southern District of New York
May 18, 2000
LINDA HAMILTON, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF GEORGE HAMILTON, PLAINTIFF,
GARLOCK, INC., A C AND S, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sweet, D.J.
The defendant Atlas Turner, Inc. ("Atlas Turner") has moved
pursuant to Rules 50 and 59, Fed.R.Civ.P., to set aside the
verdict rendered against it or for a new trial. Plaintiff Linda
Hamilton, individually and as executrix of the estate of George
Hamilton ("Hamilton") seeks certain discovery and the entry of
judgment. For the reasons set forth below, the motion of Atlas
Turner is denied, and the motions of Hamilton are granted.
This is the epilogue to a hard-fought litigation brought by
Hamilton to recover damages against, among other defendants,
Atlas Turner for his mesothelioma resulting from exposure to the
asbestos products of defendants, including Atlas Turner. After a
fourteen-day trial, the jury awarded damages of over $4 million
for pain and suffering and for loss of parental care and
guidance, and allocated fault as between the defendants. Judgment
in the amount of $4,288,427.47 was entered on November 6, 1998.
Post trial the motion for dismissal by Atlas Turner was granted
for lack of jurisdiction. Hamilton v. Garlock, Inc.,
31 F. Supp.2d 351 (S.D.N.Y. 1998). On appeal by Hamilton, the Court of
Appeals reversed that ruling, holding that Atlas Turner had
waived its jurisdictional defense. Hamilton v. Atlas Turner,
Inc., 197 F.3d 58 (2d Cir. 1999).
Atlas Turner has renewed its Rule 50 and 59 motions and
Hamilton seeks judgment and discovery in and of enforcement of
any judgment to be rendered. The motions were deemed fully
submitted on March 22, 2000.
I. The Verdict Will Not Be Set Aside
A. Standard Under Rule 50
The standards to be applied to motions under Rule 50 were set
forth in the opinions
denying similar motions of other defendants John Crane, Inc.,
and Raymark Industries, Inc., and are applicable here. See Caruolo
v. AC and S, Inc., 1999 WL 147740, at *2 (S.D.N.Y. Mar. 18, 1999);
In re Asbestos Litigation (Greff, et al), 986 F. Supp. 761,
765 (S.D.N.Y. 1997). Simply stated, the evidence offered by Hamilton
was sufficient to support the verdict against Atlas Turner.
B. The Evidence Of Exposure Was Sufficient
The evidence of exposure to an asbestos product manufactured by
Atlas Turner was sufficient. In his depositions, Hamilton
specifically named Atlas Turner as one of the manufacturers of
the asbestos products to which he was exposed. (Tr. 371-377).
Moreover, his shipmate, Cliff Mann, testified that he worked with
Hamilton aboard the U.S.S. John W. Weeks and that they used bags
of asbestos with the name "Atlas" on them. (Tr. 1096-1010,
1023-1030). Frank Ronsini ("Ronsini") identified Atlas Turner as the
manufacturer of the insulating cement used aboard the U.S.S. John
W. Weeks. (Tr. 355-359). The evidence at trial established that
Atlas Turner manufactured and sold three out of these four types
of asbestos products — the pipe covering, block and cement,
and its answers to interrogatories described its asbestos pipe
covering block and cement products as "High Temperature
Insulation" used for "Pipe and Boiler Insulation."
II. A New Trial Is Not Required
A. Standard Under Rule 59
The standards to be applied to motions under Rule 59 were set
forth in the opinions denying similar motions of other
defendants, John Crane, Inc., and Raymark Industries, Inc. See
Caruolo, 1999 WL 147740, at *2; In re Asbestos Litigation (Greff,
et al), 986 F. Supp. at 765. In short, it cannot be said that
"the jury 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).
B. A New Trial Is Not Warranted Based On The Evidentiary
Atlas Turner seeks a new trial on the basis of evidentiary
rulings. Since the evidence at issue was properly admitted, a new
trial is not required. The rulings in this action were consistent
with those made in In re New York Asbestos Litig. (Consorti, et
al.), 847 F. Supp. 1086 (S.D.N.Y. 1994), aff'd sub nom. Consorti
v. Armstrong World Ind., 72 F.3d 1003 (2d Cir. 1995), vacated on
other grounds sub nom. Consorti v. Owens-Corning Fiberglass
Corp., 518 U.S. 1031 (1996). Contrary to Atlas Turner's
contention, exclusion under Rule 403 of certain evidence was not
Evidence from the files of Johns-Manville and Raybestos
Manhattan, and the admission of the deposition of Dr. Kenneth W.
Smith ("Dr. Smith") was appropriate. The liability of
Johns-Manville and Raybestos Manhattan was at issue, and the hearsay
exceptions under Fed. R. of Evid. R. 804(b)(1), Fed.R.Evid. R.
803(6) and (16) were applicable. This evidence was also
admissible as to the state of the art. See Dartez v. Fiberboard,
765 F.2d 456, 461 (5th Cir. 1984); George v. Celotex Corp.,
914 F.2d 26 (2d Cir. 1990); Stern v. Waldbaum, Inc., 651 N.Y.S.2d 187
(N.Y. App. Div. 1996).
The testimony of Ronsini was properly admitted.*fn1 Atlas
Turner raised the issue
of whether this defendant ever sold its asbestos cement in the
United States. (Tr. 95-97). Ronsini's testimony was read in
conjunction with the admission (over Hamilton's objection) of
Atlas Turner's New York answers to interrogatories denying any
sales into the United States of its asbestos cement. (Tr. 985-87,
1034-53). As such, the admission of Ronsini's testimony was proper
as corroboration of Hamilton to establish that Atlas Turner's
products were sold in the United States, and particularly for use
aboard the U.S.S. Weeks.
With respect to the issue of notice, Atlas Turner's parent
corporation, Turner & Newall, knew of the secret Saranac
experiments conducted by Johns-Manville and Raybestos Manhattan,
and received copies of the 1943 interim report showing cancer and
warning that the TLV was unreliable. Atlas Turner's President,
J.A. Smith, attended meetings of the Asbestos Textile Institute
("ATI") in the 1950's on behalf of Bell Asbestos Mines and given
the fact that Dr. Smith testified that he and the officials at
Johns-Manville told other members of the asbestos industry "the
results of studies that we had made among out JM employees and
the hazards of asbestos fiber and the incidence of disease
production, and acted as unofficial consultants and
advisors . . ." (Tr. pp. 420-21), it is reasonable to conclude
that Atlas Turner "was at least inferentially put on notice."
Rotolo v. Digital Equip. Corp., 150 F.3d 223, 225 (2d Cir. 1998).
Atlas Turner seeks to ascribe error to the admission of any
document that it was not "copied" on. However, Atlas Turner had a
duty to "stay abreast" of all emerging information concerning
"damages in the product of which warning should be given to
users." Cover v. Cohen, 461 N.E.2d 864, 871 (N.Y. 1984), and
"should have known" as a standard for liability. Baker v. St.
Agnes Hosp., 421 N.Y.S.2d 81, 85 (N.Y. App. Div. 1979).
The documents admitted into evidence against Atlas Turner were
not secret internal memos of any one company that were not shared
with others in the industry, but properly admissible expressions
of the state of the art. See George v. Celotex Corp., 914 F.2d 26
(2d Cir. 1990); cf. Rotolo, 150 F.3d 223.
Finally, the ruling excluding certain evidence which Atlas
Turner sought to introduce was also correct. Atlas Turner sought
to introduce evidence excluded by the Court that Portland cement
was used at the Norfolk Naval Shipyard, that a company with the
name "Atlas" in it received a trademark for Portland cement in
1905. The offer was properly denied as prejudicial and without
foundation. As noted in the denial of Atlas Turner's summary
judgment motion, the products referred to in the documents
proffered by Atlas Turner are "not the asbestos-containing
products that Hamilton identified on the Weeks." Hamilton v. AC
and S, No. 94 Civ. 4397, 1998 WL 651049, at *5 (S.D.N.Y. Sept.
C. The Award Was Not Excessive
A $5 million dollar verdict for pain and suffering in an
asbestos case did not "deviate materially from what would be
reasonable compensation." Consorti v. Armstrong World Indus.,
Inc., 9 F. Supp.2d 307 (S.D.N.Y. 1998). The instant verdict of
over $4 million (rendered in 1998), when submitted to the same
"totality of the circumstances approach," id. at 312, is
Consorti was 51 years old at death; Hamilton was 54. Consorti's
period of suffering was 32 months, as was Hamilton's.
Furthermore, and most significantly,
Hamilton was survived by a wife that was 32 years old and four
dependent children under the age of seven — the youngest,
David, being less than two years old when Hamilton died. Damages
for the loss of parental care and guidance are compensable. Garcia
v. New York Health and Hospitals Corp., 646 N.Y.S.2d 694
(N.Y. App. Div. 1996); Milbrandt v. A.P. Green Refractories Co.,
588 N.E.2d 45 (N Y 1992), superseded by statute on other grounds
as stated in Shue v. Red Creek Cent. School Dist., 676 N.Y.S.2d 742
(N.Y. Sup. Ct. 1998); Gonzalez v. NYC Housing Authority,
569 N.Y.S.2d 915 (N Y 1991); Kiker v. Nassau County,
571 N.Y.S.2d 804 (N.Y. App. Div. 1991); Moore-McCormick Lines,
Inc. v. Richardson, 295 F.2d 583 (2d Cir. 1961); Rogow v.
United States, 173 F. Supp. 547 (S.D.N.Y. 1095).
The record set forth fully the pain and suffering of Hamilton,
and its effect on his wife and his children, and their loss of
care and guidance. It would be difficult to imagine a more
painful descent into death. Moreover, the suggestion of a dollar
figure by counsel does not give rise to a requirement for a new
trial. Counsel conceded that "what I say means nothing. It means
absolutely nothing." (Tr. 2291), and a specific instruction was
given to the jury in keeping with the Second Circuit's more
recent pronouncements on the subject. Lightfoot v. Union Carbide
Corp., 110 F.3d 898 (2d Cir. 1997).
D. The Evidence Was Sufficient For The Jury To
Find That Atlas Turner Acted Recklessly And In
Concert With Others
The legal standards for reckless conduct and acting in concert
with others set forth in In re Asbestos Litig. (Greff et al), 986
F. Supp. at 768-69, are applicable here.
Evidence was presented that Atlas Turner's corporate sibling,
Keasbey & Mattison, joined with others to suppress scientific
studies preformed in the 1940s which indicated the risks of
asbestos. There was also evidence that Atlas Asbestos, the
defendant's corporate predecessor, was warned by Turner & Newall,
the corporate parent of inter alia Atlas Asbestos and Keasbey &
Mattison, as to the dangers posed by asbestos to workers. In
addition, there was evidence presented that J.A. Smith attended
an ATI meeting at which it was decided not to conduct proposed
health studies in part because of the expected adverse publicity
about asbestosis and cancer. This and other evidence provided
sufficient support for the jury to find that Atlas Turner acted
recklessly and in concern with others by selling its asbestos
products without warnings even though it had knowledge that
serious — and potentially deadly — harm was almost
certain to follow and working with other members of its corporate
family to suppress knowledge that could have saved workers such
as Hamilton. See In re Asbestos Litig. (Greff et al), 986 F.
Supp. at 768.
III. The Directed Verdict On Allocation Of Fault Was Appropriate
By order of November 5, 1998, the Court set aside the jury's
verdict regarding the issue of allocation of fault since Atlas
Turner "failed in its burden to provide sufficient evidence from
which the jury could allocate liability." Atlas Turner offered no
evidence in this regard.
When a defendant fails to offer any proof that would allow a
rational finder of fact to allocate among the joint tortfeasors,
a directed verdict is proper. In re Asbestos Litigation (Greff,
et al), 986 F. Supp. 761 (S.D.N.Y. 1997).
Further, the November 5, 1998 order did not trespass on the
province of the jury. Slotkin v. Citizens Casualty Co.,
614 F.2d 301 (2d Cir.), cert. denied sub nom. McGrath v. Slotkin,
449 U.S. 981 (1980); Dextone Co. v. Building Trades Council of Westchester
County, 60 F.2d 47 (2d Cir. 1932).
Reductions from a verdict contemplated by G.O.L. § 15-108
are not automatic.
First, it must be pled by the party seeking its benefits. Whalen
v. Kawasaki Motors Corp., 703 N.E.2d 246 (N.Y. 1998). Next, the
defendant must bear the burden of establishing the equitable share
of culpability attributable to each of the settling defendants.
Zalinka v. Owens-Corning Fiberglass Corp., 633 N.Y.S.2d 884
(N.Y. App. Div. 1995); Bigelow v. A C and S, Inc., 601 N.Y.S.2d 478
(N.Y. App. Div. 1993).
The failure of a defendant to establish the settling
defendant's equitable shares, while not constituting a waiver to
all relief under G.O.L. § 15-108, does constitute a waiver of
its right to a reduction based upon the settling tortfeasor's
equitable share of plaintiff's damages. Whalen, 703 N.E.2d at
248; Audrieth v. Parsons Sanitarium, Inc., 588 F. Supp. 1380,
1381 (S.D.N.Y. 1984).
Since Atlas Turner "failed in its burden to provide sufficient
evidence from which the jury could allocate liability," it was
proper to set aside the jury's apportionment. Gleich v. Volpe,
300 N.E.2d 148 (N.Y. 1973); cf. In re Asbestos Litig. (Greff et
al), 986 F. Supp. at 773-74.
IV. Discovery Will Proceed
The sources and location of any assets of Atlas Turner in the
United States are proper avenues of inquiry and are not shielded
by the attorney-client privilege. The scheduled depositions will
proceed at the convenience of counsel.
The Atlas Turner motions for a directed verdict are denied, the
motion of Hamilton to compel is granted.
Submit judgment on notice.
It is so ordered.