NICHOLAS DOMINICK AND LORRAINE J. DOMINICK, PLAINTIFFS-RESPONDENTS,
CHARLES MILLAR & SON CO., CHARLES MILLAR SUPPLY, INC., MILLAR SUPPLY, INC., PACEMAKER MILLAR STEEL & INDUSTRIAL SUPPLY COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO CHARLES MILLAR & SON SUPPLY, INC., PACEMAKER MILLAR STEEL & INDUSTRIAL SUPPLY OF BINGHAMTON, INC., PACEMAKER STEEL & ALUMINUM OF BINGHAMTON CORP., PACEMAKER STEEL AND PIPING CO., INC., INDIVIDUALLY AND AS SUCCESSOR TO CHARLES MILLAR, PACEMAKER STEEL WAREHOUSE INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS. (APPEAL NO. 2.)
SCHILLER & FLEXNER LLP, ALBANY (GEORGE F. CARPINELLO OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.
BELLUCK & FOX, LLP, NEW YORK CITY (SETH A. DYMOND OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER,
from a judgment of the Supreme Court, Oneida County (Charles
C. Merrell, J.), entered March 22, 2016. The judgment, among
other things, awarded plaintiff money damages.
hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Plaintiffs commenced this action seeking damages for injuries
sustained by Nicholas Dominick (plaintiff) from his exposure
to asbestos. Plaintiff Lorraine J. Dominick abandoned her
loss of consortium claim at the ensuing trial.
Defendants-appellants (Millar defendants) appeal from a
judgment entered upon a jury verdict finding that plaintiff
was exposed to asbestos from products supplied by the Millar
defendants, that they failed to exercise reasonable care by
not providing a warning about the hazards of exposure to
asbestos with respect to their products, and that their
failure to warn was a substantial contributing factor in
causing plaintiff's injuries.
to the contention of the Millar defendants, the evidence is
sufficient to establish that asbestos in products they
supplied was a substantial factor in causing or contributing
to plaintiff's injuries (see Barnhard v Cybex Intl.,
Inc., 89 A.D.3d 1554, 1555). There is a valid line of
reasoning and permissible inferences that could lead rational
persons to the conclusion reached by the jury based upon the
evidence presented at trial (see Cohen v Hallmark
Cards, 45 N.Y.2d 493, 499). Plaintiff testified that he
was exposed to asbestos dust from asbestos boards and cement
supplied by the Millar defendants that were used in the heat
treat area of a pneumatic-tool making plant. The hypothetical
question that plaintiff asked his expert was based on
plaintiff's testimony or was otherwise "fairly
inferable from the evidence" (Tarlowe v Metropolitan
Ski Slopes, 28 N.Y.2d 410, 414; see Czerniejewski v
Stewart-Glapat Corp., 269 A.D.2d 772, 772-773).
respect to specific causation, the Court of Appeals held in
Parker v Mobil Oil Corp. (7 N.Y.3d 434, 448,
rearg denied 8 N.Y.3d 828) that the expert opinion
must set forth that the plaintiff "was exposed to
sufficient levels of the toxin to cause the [injuries]"
(see Sean R. v BMW of N. Am., LLC, 26 N.Y.3d 801,
808). However, as the Court of Appeals later wrote, "
Parker explains that precise quantification' or
a dose-response relationship' or an exact numerical
value' is not required to make a showing of specific
causation" (Cornell v 360 W. 51st St. Realty,
LLC, 22 N.Y.3d 762, 784, rearg denied 23 N.Y.3d
996). There simply " must be evidence from which the
factfinder can conclude that the plaintiff was exposed to
levels of [the] agent that are known to cause the kind of
harm that the plaintiff claims to have suffered' "
(id.). Here, plaintiff's expert opined that, if
a worker sees asbestos dust, that is a "massive
exposure... capable of causing disease." Contrary to the
Millar defendants' contention, the expert's opinion,
considered along with the rest of her testimony, was
sufficient to establish specific causation (see Matter of
New York City Asbestos Litig., 143 A.D.3d 483, 484;
Matter of New York City Asbestos Litig., 143 A.D.3d
485, 486; Penn v Amchem Prods., 85 A.D.3d 475, 476).
reject the Millar defendants' contention that Supreme
Court abused its discretion in precluding them from calling
certain witnesses. Plaintiff moved in limine to preclude the
testimony of eight of plaintiff's former coworkers on the
ground that the Millar defendants' disclosure of those
witnesses was untimely. The court exercised its sound
discretion in limiting the Millar defendants to calling just
two of the witnesses inasmuch as the testimony of the
remaining coworkers would be cumulative (see Cor Can. Rd.
Co., LLC v Dunn & Sgromo Engrs., PLLC, 34 A.D.3d
1364, 1365). The court also properly denied the motion of the
Millar defendants for leave to renew or reargue their
opposition to the motion in limine inasmuch as they again
failed to show that the testimony of the remaining coworkers
would not be cumulative.
reject the Millar defendants' contention that the
jury's apportionment of fault is against the weight of
the evidence (see Matter of Eighth Jud. Dist. Asbestos
Litig. [appeal No. 4], 141 A.D.3d 1127, 1128). Indeed,
they "did not meet [their] burden of establishing the
equitable shares of fault attributable to other tortfeasors
in order to reduce [their] own liability for damages"
(id.; see Matter of New York Asbestos
Litig., 28 A.D.3d 255, 256). Finally, we reject the
Millar defendants' contention that the award of $3
million for future pain and suffering ...