Ford v. AO Smith Water Products (2019)

Our plain-English summary of Ford v. AO Smith Water Products (New York Supreme Court, Appellate Division, June 25, 2019).

Noreen Ford, executor of the estate of Frank Gondar Jr., sued Burnham LLC and others after Gondar died of mesothelioma. The opinion says he was exposed to asbestos over 20 years from dust created when asbestos insulation on Burnham's boilers was removed. A jury found for plaintiff and assigned 25% of liability to Burnham. After a reduction, the judgment awarded $5 million for 17 months of past pain and suffering and $2 million for future pain and suffering over one month. Burnham appealed. The First Department held that plaintiff's experts gave sufficient testimony that the dust quantities could cause mesothelioma. It found the past pain and suffering award not excessive, given the severity of his symptoms and how active he had been. It found the future award materially excessive because the jury found he would live only one more month. The court ordered a new trial on that item unless plaintiff agreed to $500,000. It also upheld the 25% allocation to Burnham.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 1st Dept.
• Decided: June 25, 2019
• Citation: 173 A.D.3d 602
• Stage: Appeal from judgment after trial
• State: New York

Outcome. The First Department modified the judgment against Burnham LLC, vacating the $2 million future pain and suffering award and ordering a new trial on those damages unless plaintiff stipulated to reduce it to $500,000, and otherwise affirmed the verdict for plaintiff.

What the court held. An award for future pain and suffering that deviates materially from reasonable compensation may be reduced under CPLR 5501(c), where the jury found the decedent would live only one month. Expert testimony that the asbestos dust quantities were sufficient to cause mesothelioma was adequate, and a 25% liability allocation to the boiler maker was not against the weight of the evidence.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Compensatory Damages.

The people and their exposure

• Frank M. Gondar, Jr.: mesothelioma; died

The defendants

• Burnham LLC (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Juni v. Ford Motor Co. (Matter of New York City Asbestos Litigation) (New York Court of Appeals, 2018). The Court of Appeals affirmed the Appellate Division's order, leaving in place the setting aside of the jury verdict against Ford Motor Company, so plaintiff Mary Juni lost and Ford won judgment as a matter of law.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (New York Court of Appeals, 2016). The Court of Appeals affirmed the Appellate Division's order, which upheld the judgment for plaintiff Konstantin against Tishman Liquidating Corporation, and held TLC had not preserved or recorded its joint-trial challenge and could not challenge the damages as excessive.
• Mtr OF Nyc Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2017). The Appellate Division affirmed the judgment for Ford Motor Company, upholding the trial court's order setting aside the jury's verdict for plaintiff Mary Juni, and dismissed the appeal from the order as subsumed in the appeal from the judgment.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2016). The First Department affirmed the jury verdict for plaintiff Dorcas Hackshaw (executrix of Selwyn Hackshaw) against Crane Co. on liability, but found the award for past pain and suffering excessive and reduced it to the extent indicated (the figure is not in the text).
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The Appellate Division affirmed both jury-verdict judgments for the plaintiffs (Konstantin against Tishman Liquidating Corporation, Dummitt against Crane Co.) and dismissed the appeal from the order denying Crane's post-trial motion as subsumed in the judgment appeal; one justice, joined by another, dissented in part as to Dummitt.
• Penn v. Amchem Products (New York Supreme Court, Appellate Division, 1st Dept., 2011). The Appellate Division held that the trial court was wrong and that the evidence was enough for the jury to find Kerr Corporation liable to plaintiff Penn. It rejected Kerr's unpreserved challenges, noted the damage awards deviate from reasonable compensation under CPLR 5501(c), and recalled and vacated its May 2010 decision.

Later decisions citing this one

4 later decisions in our library cite this one:

• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2025). The First Department affirmed the jury-verdict judgment for plaintiffs Romeo and Rosa Maffei against Burnham LLC, including compensatory, consortium and punitive awards, and dismissed the appeal from the post-trial order as subsumed in the judgment.
• Matter of New York City Asbestos Litig. v. Air & Liquid Sys. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 2020). The First Department upheld the jury's liability verdict against the Federal-Mogul Asbestos Personal Injury Trust (successor to Felt Products) but ordered a new trial on past pain and suffering and past loss of consortium unless plaintiff agreed to reduce those awards to $5.5 million and $650,000.
• Nemeth v. Brenntag N. Am. (New York Supreme Court, Appellate Division, 1st Dept., 2020). The Appellate Division modified the judgment against Whittaker, Clark & Daniels (WCD) to increase it to $3,300,000 because the trial court had miscalculated the settlement offsets, and otherwise affirmed the plaintiff's jury verdict; one judge dissented and would have entered judgment for WCD.
• Olson v. Brenntag N. Am., Inc. (New York Supreme Court, 2020). The trial court denied Johnson & Johnson's motions for judgment as a matter of law and for a new trial on liability, but vacated the damages awards and ordered a new trial on damages unless the Olsons accept reduced compensatory and punitive awards.

Amounts in the opinion

• $5 million (compensatory)
• $2 million (compensatory)
• $500,000 (other)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

173 A.D.3d 602 (2019)

105 N.Y.S.3d 399

2019 NY Slip Op 05089

Noreen E. Ford, as Executrix of the Estate of Frank M. Gondar, Jr., Deceased, Respondent,

v.

A.O. Smith Water Products et al., Defendants, and

Burnham LLC, Appellant.

190079/15, 9722, 9721.

Decided June 25, 2019.

Appellate Division of the Supreme Court of New York, First Department.

Judgment, Supreme Court, New York County (Martin Shulman, J.), entered August 21, 2017, upon a jury verdict against defendant Burnham LLC, and, after remittitur and stipulation by plaintiff, awarding plaintiff $5 million for past pain and suffering over a period of 17 months and $2 million for future pain and suffering for one month, unanimously modified, on the facts, to vacate the award for future pain and suffering and order a new trial of those damages, unless plaintiff stipulates, within 30 days after entry of this order, to reduce the award for future pain and suffering to $500,000, and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs.

Concur—Gische, J.P., Tom, Kapnick, Kern, JJ.

This litigation arises out of the decedent's exposure to asbestos over the course of 20 years from dust caused by the removal of asbestos insulation placed on defendant Burnham LLC's boilers. Plaintiff's experts' testimony was sufficient to establish that the quantities of asbestos in the dust to which [*603] the decedent was exposed were sufficient to cause his mesothelioma (see Matter of New York City Asbestos Litig., 154 AD3d 441, 441 [1st Dept 2017], lv denied 30 NY3d 909 [2018]; Matter of New York City Asbestos Litig., 143 AD3d 485, 486 [1st Dept 2016], affd 29 NY3d 1068 [2017]; Matter of New York City Asbestos Litig., 148 AD3d 233, 236 [1st Dept 2017], affd 32 NY3d 1116 [2018]).

Under the circumstances of this case, we find that the award for future pain and suffering deviates materially from what would be reasonable compensation (CPLR 5501 [c]; see generally Matter of New York City Asbestos Litig., 121 AD3d 230, 255 [1st Dept 2014], affd 27 NY3d 1172 [2016]; Penn v Amchem Prods., 85 AD3d 475 [1st Dept 2011]). While plaintiff presented evidence at trial that the decedent's symptoms were becoming substantially worse and would continue to do so, the jury found that the decedent would live only one more month, and its award of damages for future pain and suffering were intended to provide compensation for that period (see CPLR 4111 [e]).

However, we find that the award, as reduced by stipulation, for past pain and suffering over a period of approximately 17 months is not excessive (CPLR 5501 [c]; Matter of New York City Asbestos Litig., 143 AD3d at 486; Peraica v A.O. Smith Water Prods. Co., 143 AD3d 448, 451 [1st Dept 2016], lv dismissed 28 NY3d 1167 [2017]; Matter of New York City Asbestos Litig., 154 AD3d at 441). The jury and the trial court, having had an opportunity to hear testimony firsthand, concluded that a substantial award was appropriate in light of the decedent's unique characteristics and the extent of his suffering. The record shows that the decedent's symptoms were severe, that he suffered from tremendous emotional and physical pain, and that he had been particularly active before the onset of symptoms.

The jury's verdict and allocation of 25% liability to Burnham, although Burnham did not actually manufacture the asbestos or distribute it directly, was not against the weight of the evidence (see generally Matter of New York City Asbestos Litig., 143 AD3d at 485; Peraica, 143 AD3d at 451).

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites