Key NYCAL Asbestos Rulings Following $190 Million Verdict. What Does It Mean?

On February 5, 2015, New York County Supreme Court Justice Joan A. Madden issued a post-trial decision involving an asbestos consolidated trial that resulted in a $190 million plaintiffs’ verdict for five mesothelioma plaintiffs.

The most notable part of the 29 page decision related to reduction of damages. Here, the Court reduced the $190 million jury verdict to just under $30 million.  In re: New York City Asbestos Litig. (Assenzio) (Brunck) (Levy) (Serna) (Vincent), 2014 WL 514932 (Sup. Ct. New York Cty. 2015). In doing so, Justice Madden cited to the recent In re: New York City Asbestos Litig. (Konstantin) (Dummit), 121 A.D.3d 230 (1st Dep’t 2014), wherein the First Department reduced asbestos damages awards in a consolidated trial of two mesothelioma plaintiffs, essentially for pain and suffering, based upon the duration and nature of the pain and suffering experienced by the plaintiffs for their mesotheliomas.

In her decision for example, Justice Madden determined that reasonable compensation for the Vincent plaintiff, who had an 18 to 20 month pain and suffering time-period, should be $5 million, as opposed to $20 million. Judge Madden simultaneously ordered “a new trial on the issue of damages” for all of the remaining plaintiffs, unless they accepted similar, significant reductions. Averaging the reduced amounts of pain and suffering attributable to all five plaintiffs, the Court essentially determined that $260,000 per month represented reasonable compensation to the Plaintiffs. Notably, the Court also reduced loss of consortium damages to $500,000.

Separate from the damages issue, the Court also addressed several significant evidentiary and damages issues in asbestos trials. Specifically, the Court addressed the following issues:

  • Consolidated Cases For Joint Trial: The Court rejected the defendants’ argument that the five cases were improperly consolidated for a mega-trial, which resulted in jury confusion and prejudice to the defendants. In doing so, the Court cited to recent precedent out of the same Court to justify its consolidations.
  • Evidence to Support Apportionment Among Tortfeasors: Typically in asbestos cases, very few of the original dozens of defendants remain at trial. The defendants that remain may seek to admit evidence to limit their proportionate share of fault by seeking to introduce evidence of fault as to settled or dismissed tortfeasors. One of the evidentiary battles being waged is the use of deposition transcripts of corporate representatives of settled/dismissed defendants. At trial, Justice Madden refused to permit defendants from introducing such transcripts on the grounds that the specific plaintiffs were not a party to those transcripts. The ruling further demonstrates the evidentiary obstacles, which are somewhat unique to defendants, in trying to demonstrate that other tortfeasors are responsible for plaintiffs’ injuries.
  • Joint and Several Liability and Recklessness: By statute in New York, a tortfeasor whose share of fault is determined to be 50 percent or less is only responsible to pay only its equitable share of fault for plaintiff’s non-economic loss. However, an exception to the limitation on liability, which plaintiffs in asbestos litigation frequently rely upon at trial, makes a tortfeasor jointly and severally liable if that the defendant is deemed to be “reckless” by the jury. Here, the defendants argued that the Court erred in its recklessness charge to the jury and that there was insufficient evidence for a jury to determine that the defendants were reckless. The Court rejected both arguments.


There are a few takeaways from this decision, as well as the First Department decision in Dummit. First, the Courts are reducing astronomical pain and suffering verdicts in mesothelioma cases. Although it would be difficult to call it a precedent, we do see Courts capping pain and suffering damages at around $250,000 per month in mesothelioma cases.

Next, defendants continue to face significant headwinds in fighting against consolidated trials. It cannot be disputed that consolidated trials are both very difficult to defend against and they result in higher verdicts than single plaintiff trials. As a result and until the Courts stop consolidating cases into mega-trials, defendants should expect continued inflated settlement demands from plaintiffs.

Also, defendants must continue to develop their discovery and trial strategies to overcome the difficult evidentiary decisions being rendered that excludes evidence of plaintiffs’ exposures to other parties’ products. Finally, while juries are regularly, significantly limiting a defendant’s proportionate share of fault, they are simultaneously determining that the same defendant was “reckless” and, consequently, jointly and severally liable for the entire verdict. As a result, defendants need to plan and adjust their trial strategies to avoid such a finding.

This case has garnered recent media attention. Joseph J. Welter, a partner at Goldberg Segalla, was quoted in a New York Law Journal article, stating that this ruling was “certainly a step in the right direction, bringing the numbers closer to what the First Department said were the upper end of reasonable compensation.” Noting that the appellate rulings in Konstantin and Dummit’s case are on appeal before the New York Court of Appeals, he added, “right now, we’re in flux and one battle is what the upper end” of mesothelioma awards will be in the New York City region.

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