Lustenring v. AC&S, Inc. (2004)

Our plain-English summary of Lustenring v. AC&S, Inc. (New York Supreme Court, Appellate Division, December 2, 2004).

Natalie Lustenring, individually and as executrix of her late husband John K. Lustenring, and John Matteson and others sued asbestos defendants, including John Crane, Inc. The two cases were tried to juries, which returned verdicts for the plaintiffs against John Crane. The opinion says the plaintiffs developed mesothelioma and that both worked all day, for long periods, in clouds of dust raised by manipulating and crushing the company's asbestos-containing packing and gaskets. On appeal, John Crane challenged the verdicts. The First Department affirmed. It held that the evidence fairly interpreted supported the verdicts. It found that valid expert testimony showed that dust from asbestos products contains enough asbestos to cause mesothelioma. It said that John Crane's factual disagreement with the plaintiffs' causation theory did not require a Frye hearing. It also held that the jury could find John Crane had not shown that other defendants' negligence was a significant cause. It found no trial errors that denied a fair trial, and found the damages not materially out of line with reasonable compensation.

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: December 2, 2004
• Citation: 13 A.D.3d 69
• Stage: Appeal from judgment after trial
• State: New York

Outcome. The Appellate Division affirmed the jury verdicts for the plaintiffs against defendant John Crane, Inc., finding the evidence sufficient, no Frye hearing required, and damages not excessive.

What the court held. A jury could find causation from evidence that plaintiffs worked in dust raised by manipulating the defendant's asbestos packing and gaskets, and a defendant's factual disagreement with the plaintiffs' causation theory does not require a Frye hearing.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Compensatory Damages, Expert Testimony, Trial Procedure and Discovery.

Why this case is relevant

In this short decision, New York's Appellate Division, First Department, affirmed jury verdicts against John Crane, Inc. in two mesothelioma cases. It held that the evidence supported the verdicts: the plaintiffs worked all day, for long periods, in clouds of dust raised by manipulating and crushing the company's asbestos packing and gaskets, and valid expert testimony showed that such dust contains enough asbestos to cause mesothelioma. It also held that the defendant's factual disagreement with the plaintiffs' causation theory did not require a Frye hearing.

Later courts cited it for two main points. One is that this kind of visible-dust evidence, together with expert testimony, can establish causation. The other is that a factual disagreement over causation does not warrant a Frye hearing. One Appellate Division opinion called it "a leading Appellate Division decision on causation in asbestos cases." Its reach was later narrowed. In 2017 the Appellate Division held that established causation standards were "not altered by" it. A trial court, quoting that ruling, noted that the "mere presence of visible dust" is not sufficient alone to prove causation. In 2022 New York's highest court, the Court of Appeals, also addressed reliance on its dust holding. Later courts have also cited it when reviewing damages awards.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• John K. Lustenring: mesothelioma; died

• John Matteson: mesothelioma

The defendants

• John Crane, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Ronsini v. Worthington Corp. (Matter Of New York City Asbestos Litigation. Elaine Ronsini V. Garlock, Inc.) (New York Supreme Court, Appellate Division, 1st Dept., 1998). The Appellate Division rejected the challenges by Worthington Corporation and John Crane, Inc. to the jury verdicts for the plaintiffs, and declined to disturb the liability findings, the apportionments or the damages awards as reduced by the trial court.

Later decisions citing this one

24 later decisions in our library cite this one:

• Nemeth v. Brenntag N. Am. (New York Court of Appeals, 2022). The Court of Appeals reversed the Appellate Division and dismissed the complaint against Whittaker, Clark & Daniels, Inc., holding that the plaintiff's causation proof was legally insufficient, so the defendant won and the plaintiff lost the jury verdict.
• 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.
• 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.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2016). The First Department reversed the order on the Labor Law § 240(1) claim, granting the defendants' motion and dismissing the complaint on that claim. It also upheld the jury's verdict against Crane Co. on failure to warn and recklessness, but found the future pain and suffering award materially excessive to an extent the text does not state.
• Cohen v. American Biltrite Inc. (New York Supreme Court, 2018). The court denied Colgate-Palmolive's motion for summary judgment because it failed to meet its initial burden to show the absence of asbestos in its talc, and in any event plaintiff raised factual issues on causation.
• Macaluso v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2018). The court upheld the jury's liability verdict against A.O. Smith (with Peerless and Burnham) but found the pain-and-suffering and loss-of-parental-guidance awards excessive, ordering a new trial on damages unless plaintiff agreed to reduced amounts.
• Pistone v. American Biltrite, Inc. (New York Supreme Court, 2018). The trial court granted summary judgment to Mannington Mills and American Biltrite, dismissing Victoria Pistone's complaint and all cross-claims against them, because she did not show that chrysotile causes peritoneal mesothelioma or that she was exposed to enough of it from their products.
• Robaey v. Air & Liquid Sys. Corp. (New York Supreme Court, 2018). The court denied Fel-Pro's motion for judgment as a matter of law and for a new trial on liability and recklessness, but vacated the $50 million and $25 million awards and ordered a new trial on damages unless the Robaeys agreed to reduced awards.
• Evans v. 3M Co. (New York Supreme Court, 2017). The court denied the defendants' omnibus motion in limine to preclude plaintiffs' causation experts and denied a Frye hearing, so plaintiffs (Jeanne Evans, estate and spouse) prevailed over remaining defendant Burnham.
• Battistoni v. ITW Food Equipment Group (In re New York City Asbestos Litigation) (New York Supreme Court, 2016). The trial court denied defendant ITW Food Equipment Group LLC's motion for summary judgment in its entirety, so plaintiff Dario Battistoni's claims continue.
• Bartolone v. Union Carbide Corp. (In re New York City Asbestos Litigation) (New York Supreme Court, 2016). The court denied Union Carbide's motion for summary judgment in its entirety, so plaintiff's estate's claims against Union Carbide go forward to trial.
• Jackson v. 84 Lumber Co. (New York Supreme Court, Onondaga, 2016). The trial court granted some and denied or reserved most of the defendants' (Union Carbide, Crane, Domco, Fairbanks) motions in limine, allowing plaintiff's state-of-the-art and specific-causation expert testimony and denying a Frye hearing at this stage.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2016). The court denied Ammco's motion for judgment notwithstanding the verdict and upheld the liability findings for plaintiff Walter Miller, but vacated the $25 million pain and suffering award and ordered a new damages trial unless plaintiff stipulated to a reduced award.
• Feinberg v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2016). The trial court denied Colgate-Palmolive's motion for summary judgment in its entirety, so the Feinbergs' claims over Arlene Feinberg's mesothelioma go forward.
• DePriest v. Crane Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2016). The trial court denied Crane Co.'s in limine motion to preclude plaintiffs' medical experts from giving specific causation testimony and denied its request for a Frye hearing, so plaintiffs may offer the testimony.
• Assenzio v. Burnham (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Burnham's and Cleaver-Brooks' motions to set aside the five mesothelioma verdicts for the plaintiffs, but found every damages award excessive and ordered new damages trials unless each plaintiff accepts a reduced award.
• Juni v. Ford Motor Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The court granted Ford Motor Company's post-trial motion, set aside the jury verdict for plaintiffs Arthur and Mary Juni in its entirety, and directed judgment for Ford.
• Brown v. Bell & Gossett Co. (New York Supreme Court, 2014). The court granted Con Edison's motion to set aside the jury verdict against it, vacated the judgment for the plaintiffs (Brown's estate and his wife), and dismissed the complaint against Con Edison.
• Peraica v. Crane Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2013). The court denied Crane Co.'s motions for judgment notwithstanding the verdict and to set aside the verdict, granted remittitur reducing the pain and suffering award from $35 million to $18 million (or a new trial on damages), and denied Crane's request for post-verdict settlement discovery.
• Konstantin v. 630 Third Ave. Assoc. (New York Supreme Court, 2012). The court denied Tishman Liquidating Corp.'s motion for judgment notwithstanding the verdict and upheld liability and the economic damages, but vacated the $7 million and $12 million pain and suffering awards and ordered a new damages trial unless plaintiff Konstantin accepts reductions to $4.5 million and $3.5 million.
• Matter of New York City Asbestos Litig. Ronald Dummitt v. AW Chesterton (New York Supreme Court, 2012). The court denied Crane Co.'s motion for judgment notwithstanding the verdict and upheld liability for plaintiff Ronald Dummitt. It vacated the $16 million past and $16 million future pain-and-suffering awards unless he accepts a reduction to $5.5 million and $2.5 million.
• Neuer v. American Art Clay Co., Inc. (New York Supreme Court, 2012). The court denied the motions for summary judgment by Metro-North, the MTA, Conrail and APU, leaving plaintiff Thomas Neuer's FELA asbestos claim to go to trial.
• Berger v. Amchem Prods. (New York Supreme Court, 2006). The court denied DaimlerChrysler's motions (joined by Ford and General Motors) to preclude evidence that brake and clutch dust causes asbestos disease, to dismiss the complaints, and for a Frye hearing, so the plaintiffs (Berger and Nygaard estates) prevailed.

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.

13 A.D.3d 69 (2004)

786 N.Y.S.2d 20

NATALIE B. LUSTENRING, Individually and as Executrix of JOHN K. LUSTENRING, Deceased,

Respondent,

v.

AC&S, INC., etal., Defendants, and

JOHN CRANE, INC., Appellant.

JOHN MATTESON et al., Respondents,

v.

AC&S, INC., etal., Defendants, and

JOHN CRANE, INC., Appellant.

December 2, 2004.

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

Concur — Sullivan, J.P., Ellerin, Lerner, Marlow and Catterson, JJ.

The evidence, fairly interpreted, permitted the verdicts reached by the jury (see Matter of New York City Asbestos Litig. [*70] [Brooklyn Naval Shipyard Cases], 188 AD2d 214, 225 [1993], affd 82 NY2d 821 [1993]). Indeed, the evidence showed that both plaintiffs worked all day for long periods in clouds of dust raised specifically by the manipulation and crushing of defendant's packing and gaskets, which were made with asbestos. Valid expert testimony indicated that such dust, raised from asbestos products and not just from industrial air in general, necessarily contains enough asbestos to cause mesothelioma. Defendant's factual disagreement with plaintiffs' causation theory did not require a Frye hearing (see Gayle v Port Auth. of N.Y. & N.J., 6 AD3d 183, 184 [2004]). The evidence also supported the verdict that defendant did not sustain its burden of showing that negligence by nonparty defendants was a significant cause of plaintiffs' injuries (see Matter of New York City Asbestos Litig. [Ronsini v Garlock, Inc.], 256 AD2d 250, 252 [1998], lv denied 93 NY2d 818 [1999], cert denied sub nom. Worthington Corp. v Ronsini, 529 US 1019 [2000]). We have reviewed defendant's remaining arguments for a new trial, respecting purportedly erroneous trial rulings, and find that any such errors did not deprive defendant of a fair trial. The damages do not deviate materially from what is reasonable compensation under the circumstances (CPLR 5501 [c]).

Sources

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