Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig., 2017)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, October 5, 2017).

Walter Miller sued Hennessy Industries and other defendants, including BMW of North America, over mesothelioma. The claim against Hennessy arose from Miller's use of a grinder made and designed by Hennessy's subsidiary, Ammco, on automobile brake linings. A New York County jury awarded him $5 million for past and $4 million for future pain and suffering. Hennessy appealed to the Appellate Division, First Department. The court affirmed. It found that the plaintiff's expert testimony was enough to show that using the grinder on brake linings exposed him to asbestos dust in amounts sufficient to cause his mesothelioma. Because the grinder created the asbestos-laden dust and Hennessy knew it would be used on asbestos-containing products, Hennessy had a duty to warn of the latent danger. The court found the damages, as reduced by the trial court and agreed to by the plaintiff, appropriate. It also held that the jury properly assigned 86% of the fault to Hennessy. Its remaining arguments were rejected.

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: October 5, 2017
• Citation: 2017 NY Slip Op 6982
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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.

What the court held. A manufacturer of a grinder used on asbestos-containing brake linings has a duty to warn of the latent danger from the foreseeable use of its product, and expert testimony that the grinder's use created asbestos dust sufficient to cause mesothelioma was adequate to establish causation.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Compensatory Damages, Expert Testimony, Failure to Warn.

The people and their exposure

• Walter Miller: mesothelioma

The defendants

• Hennessy Industries (manufacturer)
• Ammco (manufacturer)
• BMW of North America, LLC (manufacturer)

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. (March 23, 1993). 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.
• 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.
• 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:

• 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.

Amounts in the opinion

• $5 million (compensatory)
• $4 million (compensatory)

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.

2017 NY Slip Op 06982

IN RE NEW YORK CITY ASBESTOS LITIGATION

WALTER MILLER, Plaintiff-Respondent,

v.

BMW OF NORTH AMERICA, LLC, ET AL., Defendants,

HENNESSY INDUSTRIES, Defendant-Appellant.

4599, 190087/14.

Decided October 5, 2017.

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

Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 13, 2016, after a jury trial, awarding plaintiff $5 million for past pain and suffering and $4 million for future pain and suffering, unanimously affirmed, without costs.

Simpson Thacher & Bartlett LLP, New York (Michael J. Garvey of counsel), for appellant.

The Karst & Von Oiste Law Firm, New York (Kyle A. Shamberg of counsel), for respondent.

Before: Acosta, P.J., Renwick, Webber, Oing, Moulton, JJ.

In this asbestos litigation arising from plaintiff's use of a grinder manufactured and designed by defendant Hennessy Industries' subsidiary, Ammco, plaintiff's expert testimony was sufficient to establish that plaintiff's use of that grinder on automobile brake linings caused his exposure to asbestos dust in sufficient quantities to cause his mesothelioma (see Sean R. v BMW of N. Am., LLC, 26 NY3d 801, 808 [2016]; cf. Matter of New York City Asbestos Litig. [Juni], 148 AD3d 233, 236 [1st Dept 2017]). Moreover, because the asbestos-laden dust was created by plaintiff's use of defendant's grinder and defendant knew its grinder would be used on asbestos-containing products, defendant had a duty to warn plaintiff of the latent danger arising from the foreseeable use of its product (see e.g. Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297 [1992]).

We find the damages award, as reduced by the trial court and stipulated to by plaintiff, to be appropriate. Moreover, based on the evidence adduced at trial, the jury properly apportioned 86% of the fault to defendant (see CPLR art 16). We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT.

Sources

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