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Castorina v. A.C. & S.

Supreme Court, New York County

January 9, 2017

Donna Castorina, as Executrix of the Estate of Robert Castorina, and Annette Castorina, Individually, Plaintiffs,
v.
A.C. & S., et al., Defendants.

          For Plaintiffs: Phan Alvarado, Esq. Gennaro Savastano, Esq. Weitz & Luxenberg, PC

          For Defendant Burnham LLC: Nancy McDonald, Esq. Andrew F. Bain, Esq. McElroy, Deutsch, et al.

          Barbara Jaffe, J.

         On November 3, 2016, a jury trial commenced in this case against defendants Burnham LLC, Mario & DiBono Plastering Co., Inc., and Tishman Realty & Construction Co., Inc. On December 13, 2016, after the close of the evidence in the case, I granted Burnham's motion for a trial order of dismissal, having denied plaintiffs' request that I instruct the jury that it must presume that plaintiff-decedent Robert Castorina would have heeded a warning about the hazards of asbestos, if given, and finding that absent any evidence that Castorina would have heeded such a warning, plaintiffs failed to offer sufficient evidence on the issue of proximate causation. This opinion explains my ruling.

         I. PERTINENT BACKGROUND AND TRIAL

         Plaintiffs sued defendants Burnham, Mario & DiBono, and Tishman, and other entities which have since settled, claiming that exposure to asbestos from products manufactured or used by them caused Castorina to develop and die from lung cancer. Plaintiffs' sole claim against Burnham was for strict products liability based on its alleged failure to warn plaintiff of the hazards of asbestos, which required that they "adduce proof that had a warning been provided, [Castorina] would have read the warning and heeded it." (Mulhall v Hannafin, 45 A.D.3d 55, 61 [1st Dept 2007]).

         It is not disputed that neither Castorina, in his deposition testimony, which was read to the jury, nor his wife, who testified at trial, indicated that Castorina would have heeded a warning, if given, as to the hazards of asbestos, nor was any other evidence offered to support that claim. At the charge conference, plaintiffs asked, inter alia, that the jury be instructed that it must be presumed, unless rebutted by defendant Burnham, that Castorina would have heeded a warning as to the hazards of asbestos had one been given.

         II. CONTENTIONS

         Burnham asserted, without dispute, that Castorina, a heavy cigarette smoker for 50 years, never testified that he would have heeded a warning, if given, about the hazards of asbestos associated with a Burnham boiler. It also observed that Castorina had admitted that he never paid attention to any warning on cigarette packages, and that he continued to smoke cigarettes even though he had been repeatedly urged to stop following his diagnosis with lung cancer. As plaintiffs bore the burden of proving that Castorina's injury was caused by Burnham's failure to warn him of the dangers of asbestos, and absent such evidence in the case, Burnham claimed that plaintiffs failed to prove the essential element of proximate causation. (Memorandum of Law of Defendant Burnham LLC in Support of Motion for Directed Verdict Based on Plaintiff's Failure to Meet her Burden of Proof on Proximate Cause, Dec. 5, 2016 [Def. Mem. of Law]).

         Burnham argued that in several decisions, the Appellate Division, First Department, reiterated that in an asbestos-related case hinging on a defendant's failure to warn, the plaintiff must introduce "affirmative" proof that he or she would have heeded a warning had one been given by the defendant.

         Plaintiffs opposed the motion and complained of Burnham's reliance on Castorina's cigarette habit as evidence that he would not have heeded a warning as to the dangers of asbestos, if given, observing that the failure to heed cigarette warnings and the failure to heed asbestos warnings are not analogous. Thus, they argue that Castorina's failure to heed warnings about cigarette smoking would solely raise a factual issue for the jury as to his comparative fault. They also maintained that a heeding presumption is given as a matter of New York law. (Memorandum of Law in Opposition to Defendant Burnham LLC's Motion for Directed Verdict on the issue of Proximate Cause, Dec. 12, 2016 [Pl. Mem. of Law]).

         III. ANALYSIS

         Here, given the absence of any evidence that Castorina would have heeded a warning, if given, as to the hazards of asbestos, plaintiffs sought to satisfy their burden of proving proximate cause with an instruction to the jury that it must presume that he would have heeded a warning, if given. Consequently, it must first be determined whether there is state law authority for instructing a jury on the heeding presumption, and if so, then whether such an instruction would have been appropriate in this case.

         A. Is the heeding presumption part of the law ...


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