Stock v. Jenkins Bros. (Matter of Eighth Judicial District Asbestos Litigation, 2020)

Our plain-English summary of Matter of Eighth Judicial District Asbestos Litigation (New York Supreme Court, Appellate Division, October 9, 2020).

Lynn Stock and her husband James Stock sued Jenkins Bros. and other companies for injuries James suffered from asbestos exposure; he later died during the appeal, and Lynn continued as executrix of his estate. A jury found that he was exposed to asbestos in Jenkins Bros. products, that the company failed to warn of the hazards, and that the failure was a substantial contributing factor in his injuries. Both sides asked the trial court to set aside parts of the verdict, and it refused. On appeal, Jenkins Bros. argued the evidence on causation was too thin. The Fourth Department disagreed. James testified that work involving the company's gaskets and packing exposed him to visible asbestos dust routinely, and an expert tied that exposure to his mesothelioma, relying partly on studies of similar work. The court said exposure levels need not be measured exactly. It also rejected Lynn's argument that the verdict sheet should have listed loss of household services separately, since the sheet included loss of services and society. The order was affirmed.

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, 4th Dept.
• Decided: October 9, 2020
• Citation: 187 A.D.3d 1623
• Stage: Appeal from post-trial motions
• State: New York

Outcome. The Fourth Department unanimously affirmed the order denying both Jenkins Bros.' and plaintiff Lynn Stock's post-trial motions, leaving the jury verdict for plaintiff in place.

What the court held. A plaintiff need not quantify exposure precisely or use dose-response data to prove specific causation; evidence that the plaintiff was exposed to levels of the agent known to cause the harm, including expert opinion drawing on studies of similar work, suffices. A verdict sheet need not list loss of services and loss of society as separate items.

Issues decided: The Bare-Metal Defense, Causation, Compensatory Damages, Expert Testimony, Failure to Warn, Trial Procedure and Discovery.

The people and their exposure

• James G. Stock: mesothelioma; died

The defendants

• Jenkins Bros. (manufacturer)
• Air & Liquid Systems Corp., as Successor by Merger to Buffalo Pumps, Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Chrabas v. Owens-Illinois (Matter of Eighth Judicial District Asbestos Litigation) (June 16, 2000). The Appellate Division affirmed the Supreme Court's order denying Owens-Illinois's motion to apply Florida law to loss allocation issues and directing that New York law apply, so the plaintiffs prevailed on the choice-of-law question.

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.
• 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.
• 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.

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.

MATTER OF EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION, 187 AD 3d 1623 - NY: Appellate Div., 4th Dept. 2020 - Goo… 187 A.D.3d 1623 (2020)

133 N.Y.S.3d 359

2020 NY Slip Op 05621

In the Matter of Eighth Judicial District Asbestos Litigation.

Lynn M. Stock, Individually and as Executrix of the Estate of James G. Stock, Deceased,

Respondent-Appellant,

v.

Air & Liquid Systems Corp., as Successor by Merger to Buffalo Pumps, Inc., etal., Defendants,

and

Jenkins Bros., Appellant-Respondent.

412 CA 19-01975.

Decided October 9, 2020.

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

Appeal and cross appeal from an order of the Supreme Court, Erie County (Deborah A. Chimes, J.), entered April 25, 2019. The order denied the posttrial motions of defendant Jenkins Bros. and plaintiff.

Present—Smith, J.P., Carni, Lindley, Curran and DeJoseph, JJ.

[*1625] It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Lynn M. Stock (plaintiff) and her husband, James G. Stock (decedent), commenced this action seeking damages for injuries sustained by decedent as a result of his exposure to asbestos. Following a trial, the jury returned a verdict finding, inter alia, that decedent was exposed to asbestos products made by Jenkins Bros. (defendant), that defendant failed to exercise reasonable care by not providing a warning about the hazards of exposure to asbestos with respect to its products, and that its failure to warn was a substantial contributing factor in causing decedent's injuries. Defendant appeals and plaintiff cross-appeals from an order denying their respective motions pursuant to CPLR 4404 to set aside various aspects of the jury verdict. We note, initially, that decedent passed away during the pendency of this appeal, and plaintiff has been substituted as the executrix of his estate.

Contrary to defendant's contention on its appeal, the evidence is legally sufficient to establish that asbestos in products it manufactured was a substantial factor in causing or contributing to decedent's injuries (see Dominick v Charles Millar & Son Co. [appeal No. 2], 149 AD3d 1554, 1555 [4th Dept 2017], lv denied 30 NY3d 907 [2017]). 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 generally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Doolittle v Nixon Peabody LLP, 155 AD3d 1652, 1654 [4th Dept 2017]). Although, to prove specific causation, plaintiff and decedent were required to establish that decedent "was exposed to sufficient levels of the toxin to cause" his alleged injuries, "it is not always necessary [*1624] for a plaintiff to quantify exposure levels precisely or use the dose-response relationship" (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006], rearg denied 8 NY3d 828 [2007]; see Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 808-809 [2016]). 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" (Sean R., 26 NY3d at 809 [internal quotation marks omitted]; see Dominick, 149 AD3d at 1555). Such evidence may include an expert's use of estimates generated by mathematical models taking a plaintiff's work history into account, or the use of "more qualitative means" to determine the level of a plaintiff's exposure, such as comparing the plaintiff's exposure level "to the exposure levels of subjects of other studies" (Parker, 7 NY3d at 449).

Here, decedent testified at trial that, while performing work involving component parts of defendant's products, i.e., gaskets and packing, he was exposed to visible asbestos dust on a routine basis. In addition, his expert opined that, based in part on her review of studies of workers involved in tasks similar to those performed by decedent, decedent's exposure to such visible dust was a substantial contributing factor to the development of his mesothelioma. Contrary to defendant's contention, the expert's opinion, considered along with the rest of her testimony, was sufficient to establish specific

MATTER OF EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION, 187 AD 3d 1623 - NY: Appellate Div., 4th Dept. 2020 - Goo… causation (see Dominick, 149 AD3d at 1555-1556; Matter of New York City Asbestos Litig., 143 AD3d 483, 484 [1st Dept 2016], lv dismissed 28 NY3d 1165 [2017], rearg denied 29 NY3d 992 [2017]; Penn v Amchem Prods., 85 AD3d 475, 476 [1st Dept 2011]). We reject defendant's contention that the Court of Appeals' decision in Matter of New York City Asbestos Litig. (32 NY3d 1116 [2018]) compels a different result under the facts of this case, and we similarly reject defendant's contention that Supreme Court misapplied the applicable law. Thus, we reject defendant's contention that it is entitled to a new trial.

Finally, we also reject plaintiff's contention on her cross appeal that the court erred in failing to list her loss of decedent's future household services as a separate itemized question on the jury verdict sheet. Contrary to plaintiff's contention, the verdict sheet provided a line item for future "loss of [decedent's] services and society," and the court properly charged the jury regarding that item of damages and was not required to distinguish between loss of services and loss of society as two separate items of damages (see PJI 2:315).

Sources

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