McCormick v. Burnham (In re Asbestos Litigation, 2013)

Our plain-English summary of In re Asbestos Litigation (U.S. District Court, Eastern District of New York, January 22, 2013).

Kelly McCormick sued, for herself, as wife, and as administrator of her late husband Kit McCormick's estate, claiming that asbestos-containing products made or sold by several companies caused his mesothelioma. Mr. McCormick lived in Kansas and worked as a boiler operator at McConnell Air Force Base in Wichita from 1974 to 1998. He was diagnosed in September 2004 and died in August 2005. All defendants but Burnham LLC and Cleaver Brooks Co. had settled or been dismissed, and the case was set for trial. On the defendants' pretrial motion, the federal court in New York decided which state's law applied to damages. It chose Kansas law, based on the parties' agreement and Kansas's greater interest as the plaintiff's home and place of injury. The court explained that Kansas comparative fault limits each defendant to its own percentage of fault. It also applied Kansas caps of $250,000 on non-economic damages for the injury claim and for the wrongful death claim. The court will apply the caps after the verdict, and the jury will not be told of them. The court ordered the parties to submit a verdict sheet and jury charge.

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: U.S. District Court, Eastern District of New York
• Decided: January 22, 2013
• Docket: Nos. 91-MD-875, 04-CV-2405
• Stage: Discovery or evidence ruling
• State: New York

Outcome. The court granted the defendants' in limine motion in substance, ruling that Kansas law governs the McCormick claims, including comparative fault and $250,000 caps on non-economic damages, and ordered a verdict sheet and jury charge.

What the court held. Where Kansas is the plaintiff's domicile and place of injury and the parties agree, Kansas law governs, so comparative fault allocates each defendant's liability by percentage and statutory caps on non-economic damages are applied by the court, not disclosed to the jury.

Issues decided: Fault, Apportionment and Settlement Credits, Choice of Law, Loss of Consortium, Compensatory Damages, Wrongful Death and Survival, Trial Procedure and Discovery.

The people and their exposure

• Kit L. McCormick: mesothelioma; died

Who	Work	Where	When	Products
Kit L. McCormick	boiler operator	McConnell Air Force Base, Wichita, Kansas	1974-1998

The defendants

• Burnham LLC (manufacturer)
• Cleaver Brooks Co., Inc. (manufacturer)

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.

IN RE ASBESTOS LITIGATION.

KELLY McCORMICK, individually and as Executrix for the ESTATE OF KIT L. McCORMICK,

Plaintiff,

v.

BURNHAM LLC & CLEAVER BROOKS CO., INC., ET AL., Present Defendants.

Nos. 91-MD-875, 04-CV-2405

January 22, 2013.

United States District Court, E.D. New York.

Memorandum and Order on in limine Motions

JACK B. WEINSTEIN, Senior District Judge.

Plaintiff Kelly McConnick brought this action, individually, as wife on behalf of her deceased husband Kit McConnick, and as administrator of his estate, against several defendants. Her theory is that injuries suffered by Mr. McConnick were caused by exposure to products containing asbestos negligently manufactured or sold by those defendants. Her claims against all but these two of the originally-sued defendants have been resolved through settlement or voluntary dismissal. Only cases against Burnham LLC and Cleaver Brooks Company, Inc. remain open.

The matter is set for trial.

Mr. McConnick was diagnosed with mesothelioma in September 2004; he died in August 2005. See Ex. B, Mem. 1. Supp. Def. Burnham's Mot. in Limine ("Burnham Mem."), Jan. 3, 2013, CM/ECF No. 49-2. He was a resident of Kansas and worked at McConnell Air Force Base in Wichita as a boiler operator from 1974 to 1998. Id. Plaintiff alleges that he was exposed to asbestos-containing products manufactured or supplied by each defendant without adequate warnings concerning mesothelioma, from which he suffered during his lifetime and which caused his death. Id. Defendants' motion in limine seeks to apply Kansas law to the allocation of any damages awarded against defendants. See Burnham Mem., CM/ECF No. 49. Kansas being the location ofplaintifrs domicile and where he suffered injury, its interest in regulating the conduct and potential liability at issue in this case is predominant. Kansas law will govern plaintiffs claims, pursuant to agreement of the parties and the center of gravity. See Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 197 (1985) ("`[T]he law of the jurisdiction having the greatest interest in the litigation will be applied.'") (quoting Miller v. Miller, 22 N.Y.2d 12, 15-16 (1968)). Kansas's doctrine of comparative fault and its caps on non-economic damages and wrongful death claims apply.

Kansas has adopted the doctrine of comparative negligence. It requires a finding of the individual liability for damages of each defendant, limited to its proportionate fault. See Kan. Stat. Ann. § 60-258a. In ascertaining a defendant's individual liability, the jury will be required to compute each individual defendant's percentage of fault in the negligence (including consortium) and death actions brought against it.

The burden of proof by a preponderance is on plaintiff to prove all elements of its negligence, consortium and wrongful death contentions.

The burden of proof is on each defendant to show its percentage of liability-less than 100% for each of them—by a preponderance of evidence. See Glenn v. Flemming, 240 Kan. 724, 726-27 (1987).

The percentage of fault attributed to the government, any producer and defendants' contributory negligence may be relied upon by defendant in reducing its percentage of liability. See Wooderson v. Grtho Pharm. Corp., 235 Kan. 387, 412 (1984), cert. denied, 469 U.S. 965 (1984) ("[A] defendant who seeks to reduce his percentage of fault by comparing the fault of another party has the burden of proving the other party's fault by a preponderance of the evidence".) (citing McGraw V. Sanders Co. Plumbing Heating, Inc., 233 Kan. 766 (1983)); Gust v. Jones, 162 F.3d 587, 593 (10th Cir. 1998).

a) Yes___ No ___

a) Yes___ No ___

The consortium cause of action belongs to the person injured—not the spouse. See Kan. Stat. Ann. § 23-2605 (cause of action for consortium vests "solely in such person [who sustained personal injuries]).

A cap of $250,000 applies to the total of non-economic damages in plaintiffs personal injury action and a separate cap of $250,000 applies to the wrongful death claim. See Kan. Stat. Ann. § 60-19a02(b) ($250,000 cap on non-economic damages on personal injury claim); Kan. Stat. Ann. § 60-1 903 (a) ($250,000 cap on wrongful death claim).

The jury will not be instructed of these caps.

The court will reduce awards for non-economic damages, negligent causation of non-economic damages during life (including consortium claims) which exceed the cap of $250,000. See Kan. Stat. Ann. § 60-19a02(d). A separate cap of $250,000 will be applied by the court in the death action for total non-economic post-death damages. See Kan. Stat. Ann. § 60-1903(b)

The starting point for imposing applicable caps will be the total award determined by the jury for the cause of action. Where the jury allocates fault among several contributing persons or entities pursuant to the comparative negligence statute, the court will first reduce each defendant's damages so they are proportionate to the percentage of fault attributable to that specific defendant. Adams v. Via Christi Reg. Med Cntr., 270 Kan. 824, 832 (2001). "[W]hat remains after deduction of any percentage of the [uncapped] damage award imputed to [the defendant] is the `aggregate sum' to which the statutory cap is applied." Id. If the fault attributed to a defendant on an award subject to the statutory cap is less than $250,000, no further deduction need be applied. See Foster v. Wal-Mart Stores, Inc., 99-CV-1242, 2000 WL 1117326, at [*1] (D. Kan. July 11, 2001) (percentage of fault first applied to damages found by jury and then cap applied).

The parties shall promptly provide a detailed verdict sheet based on the above findings. See the sample incomplete verdict sheet for illustration (below).

A full proposed jury charge with all elements, all claims and all definitions shall be promptly provided by each party. SO ORDERED.

Sample Incomplete Verdict Sheet for Illustration

I. Negligence Action and Loss of Consortium During Plaintiff's Life

A. Was defendant liable to plaintiff?

1. Burnham

2. Cleaver Brooks

B. What percentage of liability was each party liable for?

1. Burnham

a) ___%

2. Cleaver Brooks

a) ___%

3. United States Government

a) ___%

4. Plaintiff

a) ___%

a) Yes___ No ___

a) Yes___ No ___

5. [Other defendants]

a) ___%

C. What damages are owed to the plaintiff?

1. Medical costs: $ ___

2. Economic Loss: $ ___

3. Noneconomic Loss

a) Loss of consortium: $ ___

b) Loss of conjugal benefits: $ ___

c) Loss of affection: $ ___

d) Pain and suffering: $ ___

II. Wrongful Death Action

A. Was defendant liable to plaintiff?

1. Burnham

2. Cleaver Brooks

B. What percentage of liability was each party liable for?

1. Burnham

a) ___%

2. Cleaver Brooks

a) ___%

3. United States Government

a) ___%

4. Plaintiff

a) ___%

5. [Other non-parties]

a) ___%

C. What were the damages suffered by plaintiffs estate on his death?

1. Economic Damages

a) Loss of marital care, attention, advice, counselor protection:

$ ___

b) Loss of amount to estate that the plaintiff would have provided were it not for his death due to fault of defendants: $___

c) Expenses for the care of the deceased caused by the injury: $___

d) Reasonable funeral expenses: $___

2. Noneconomic Damages

a) Mental anguish, suffering, or bereavement: $___

b) Loss of society, loss of comfort, or loss of companionship: $___

Sources

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