Matter of New York City Asbestos Litig. (1993)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, March 23, 1993).

This was an appeal in the New York City Asbestos Litigation, in the group known as the Brooklyn Naval Shipyard Cases. The plaintiffs included Sylvia Bleiweiss, suing individually and as executrix of Arthur Bleiweiss, and other related plaintiffs. The opinion is a short memorandum and does not name the defendant, the work or the exposure. It does say that plaintiff Sutton's trial was limited to injury from mesothelioma. The Appellate Division, First Department, decided three points. It held the trial court properly barred the defendant from relitigating a point already conclusively decided against it in earlier litigation, calling such preclusion a matter of fairness. It held that five additur awards did not deviate materially from reasonable compensation and were not an abuse of discretion. It also held the trial court did not abuse its discretion in excluding evidence that Sutton's death was due to bronchogenic carcinoma, because the trial was limited to mesothelioma and the evidence would have unfairly prejudiced the defendant. The rulings were 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, 1st Dept.
• Decided: March 23, 1993
• Citation: 191 A.D.2d 351
• Stage: Appeal from post-trial motions
• State: New York

Outcome. The Appellate Division affirmed the trial court's rulings: it upheld the preclusion of the defendant's relitigation of a point decided in prior litigation, the five additurs, and the exclusion of evidence about the cause of Sutton's death, so the defendant lost.

What the court held. A defendant may be precluded from relitigating a substantive point conclusively established against it in prior litigation, as a matter of fairness. Additur awards stand if they do not deviate materially from reasonable compensation.

Issues decided: Compensatory Damages, Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Arthur Bleiweiss; died

• Sutton: mesothelioma; died

Other decisions in this case

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

• Matter of New York City Asbestos Litig. (October 2, 2012). The First Department affirmed the trial court's order consolidating the three plaintiffs' actions against Colgate-Palmolive for a joint trial, rejecting Colgate-Palmolive's appeal.
• Matter of New York City Asbestos Litig. (May 28, 2013). The First Department reversed the judgment awarding plaintiffs damages against the Port Authority, vacated it, denied plaintiffs' default judgment motion, and granted the Port Authority's motion to dismiss for lack of subject matter jurisdiction.
• Fersch v. Volkswagen Group of America (Matter of New York City Asbestos Litig.) (November 26, 2013). The First Department affirmed the trial court's order consolidating the Juni, Fersch and Middleton cases for trial, ruling against Volkswagen Group of America, Inc., which had appealed.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (July 3, 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.
• Berensmann v. Georgia-Pacific (Matter of New York City Asbestos Litig.) (November 20, 2014). The appellate court dismissed the claims about Georgia-Pacific's wallboards because it never made asbestos wallboard, but otherwise affirmed the denial of Georgia-Pacific's summary judgment motion, so plaintiffs' joint compound claims proceed.
• Andrucki v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 15, 2015). On remittitur from the Court of Appeals, the First Department affirmed the $2,500,000 judgment for plaintiffs against the Port Authority, which had defaulted by not appearing at trial, without an inquest on damages.
• South v. Chevron Corp. (Matter of New York City Asbestos Litig.) (August 29, 2017). The Appellate Division affirmed the denial of Texaco's summary judgment motion, so the widow's Jones Act mesothelioma claims against Texaco (sued as Chevron's alleged predecessor) continued; Texaco lost, with one justice dissenting.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (October 5, 2017). The First Department affirmed the judgment entered after a jury trial awarding plaintiff Walter Miller $5 million for past and $4 million for future pain and suffering against Hennessy Industries, which lost its appeal.
• Matter of New York City Asbestos Litig. (June 20, 2019). The Appellate Division reversed the judgment entered on a jury verdict for plaintiff, granted Whittaker Clark & Daniels' motion for judgment notwithstanding the verdict, and dismissed the complaint against it.
• Hildebrand v. Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig.) (January 21, 2021). The First Department affirmed the denial of the Port Authority's summary judgment motion on the Labor Law § 200 and common-law negligence claims, so plaintiff Seval Morgan's claims against the Port Authority continued.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (July 19, 2022). The First Department reversed the judgment for plaintiffs against Johnson & Johnson and directed entry of judgment for J&J, because plaintiffs' expert proof of causation was legally insufficient; the appeal from the damages-reduction order was dismissed as subsumed.
• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (February 27, 2024). The First Department affirmed the denial of Jenkins Bros.' motion for JNOV, a new trial, or remittitur, leaving plaintiff McWilliams' $13,000,000 past and $10,000,000 future pain and suffering verdict intact.
• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (March 13, 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Hardy v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1982). The Fifth Circuit reversed the district court's omnibus order, which had applied nonmutual offensive collateral estoppel and judicial notice against the asbestos manufacturer defendants, so the defendants prevailed and the plaintiffs lost the order.

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.

191 A.D.2d 351 (1993)

595 N.Y.S.2d 756

In the Matter of New York City Asbestos Litigation (Brooklyn Naval Shipyard Cases). Sylvia

Bleiweiss, Individually and as Executrix of Arthur Bleiweiss, Deceased. (And Other Related

Actions.)

March 23, 1993

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

Concur — Ellerin, J. P., Wallach, Kupferman and Asch, JJ.

The IAS Court properly precluded defendant's relitigation of a substantive point conclusively established against it in prior litigation (Goldstein v Consolidated Edison Co., 93 AD2d 589, affd 62 N.Y.2d 936, cert denied 469 US 1210). Such preclusion is ultimately a matter of fairness (see, Hardy v Johns-Manville Sales Corp., 681 F.2d 334, 348). The five additurs resulted in awards that do not deviate materially from what would be reasonable compensation (CPLR 5501 [c]), and were not abuses of discretion (see, Schare v Welsbach Elec. Corp., 138 AD2d 477, 478). Since plaintiff Sutton's trial was expressly limited to the question of injury from mesothelioma, evidence that death was due to bronchogenic carcinoma would have resulted in undue prejudice to defendant and thus it was not an abuse of discretion to preclude such evidence (see, Assante v City of New York, 173 AD2d 430).

Sources

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