McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig., 2024)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, February 27, 2024).

James McWilliams sued Jenkins Bros. and other defendants in New York County after developing mesothelioma. A jury found that valve-related gaskets and insulation made by Jenkins Bros. caused his disease and awarded $13,000,000 for past and $10,000,000 for future pain and suffering. McWilliams had worked as a steamfitter for decades and testified about frequent tasks involving the company's products. Jenkins Bros. asked the trial court for judgment notwithstanding the verdict, a new trial, or a reduced award, and the court denied the motion. The First Department affirmed. It held that McWilliams met the causation standard in Nemeth through three experts: an industrial hygienist who estimated his cumulative exposure, an epidemiologist who described elevated mesothelioma risk at those exposure levels, and a thoracic surgeon. The court upheld admission of a "Tyndall lighting" video used as a visual aid. It found most challenges to the jury charge and to counsel's summation unpreserved or not serious enough to require reversal. It also 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: February 27, 2024
• Citation: 2024 NY Slip Op 977
• Stage: Appeal from post-trial motions
• State: New York

Outcome. 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.

What the court held. A plaintiff shows specific causation under Nemeth by expert testimony based on generally accepted methodologies that offers a scientific expression of exposure level, such as quantitative exposure estimates backed by epidemiological risk data. The pain and suffering award did not deviate materially from reasonable compensation.

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

The people and their exposure

• James McWilliams: mesothelioma

The defendants

• Jenkins Bros. (manufacturer)
• A.O. Smith Water Products Co.

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.
• 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.
• 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:

• 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.
• Sason v. Dykes Lumber Co., Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2023). The Appellate Division affirmed the denial of Dykes Lumber Company's summary judgment motion, so plaintiff Raphael Sason's claims against Dykes Lumber continue.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2019). The First Department affirmed the jury verdict for plaintiff on liability but ordered a new trial on damages unless plaintiff stipulated to further reduce the awards to $4 million for pain and suffering and $1 million for each child's loss of parental guidance.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 2016). The First Department affirmed the jury verdict for plaintiff Dorcas Hackshaw (executrix of Selwyn Hackshaw) against Crane Co. on liability, but found the award for past pain and suffering excessive and reduced it to the extent indicated (the figure is not in the text).

Amounts in the opinion

• $13,000,000 (compensatory)
• $10,000,000 (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.

2024 NY Slip Op 00977

IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION.

JAMES McWILLIAMS, Plaintiff-Respondent,

A.O. SMITH WATER PRODUCTS CO. ET AL., Defendants,

JENKINS BROS., Defendant-Appellant.

Index No. 190737/18, Appeal No. 1745, Case No. 2023-05007.

Decided February 27, 2024.

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

Appeal from the Supreme Court, New York County (Suzanne J. Adams, J.), entered September 5, 2023.

Clyde & Co US LLP, New York (Thomas Carruthers of counsel), for appellant.

Weitz & Luxenberg, P.C., New York (Pierre A. Ratzki of counsel), for respondent.

Before: Kern, J.P., Shulman, Rodriguez, Rosado, JJ.

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered September 5, 2023, which, insofar as appealed from as limited by the briefs, denied the motion of defendant Jenkins Bros. for judgment notwithstanding the verdict, a new trial, or remittitur of a verdict awarding plaintiff $13,000,000 for past pain and suffering, and $10,000,000 for future pain and suffering, unanimously affirmed, without costs.

The court properly declined to vacate the jury's findings that valve-related gaskets and insulation manufactured by defendant caused plaintiff's mesothelioma. Plaintiff met his "burden to establish sufficient exposure to a substance to cause the claimed adverse health effect" (Nemeth v Brenntag N. Am., 38 NY3d 336, 343 [2022] [internal quotation marks omitted]). He extensively testified about the tasks involving defendant's products that he frequently performed while working as a steamfitter for decades. He also presented "expert testimony based on generally accepted methodologies" (id.), calling three experts: an industrial hygienist, an epidemiologist, and a thoracic surgeon. The industrial hygienist provided quantitative estimates of plaintiff's cumulative asbestos exposure levels based on the details of plaintiff's testimony, explaining that he relied on several conservative assumptions that could have caused the figures he presented to underestimate plaintiff's actual exposure, such as disregarding the possibility that asbestos fibers in plaintiff's workplace attached to his clothing, causing him to continue being exposed to asbestos after he went home from work. The epidemiologist set forth ranges of asbestos fiber exposures that had been found by epidemiological studies to entail very high "odds ratios" as to mesothelioma, testified that the industrial hygienist's estimates were in the middle of those ranges, and concluded based on those studies that plaintiff's asbestos exposure caused by defendant's products made him about 8, 22, or 47 times more likely to develop mesothelioma than if he had been in a lower-risk group. The surgeon explained that, in contrast with the body's usual pulmonary defense mechanisms against inhaling asbestos fibers in ambient air in ordinary settings, the intensity of plaintiff's exposure to asbestos would have overcome those defenses, allowing fibers to enter his lungs. This testimony, taken together, articulated "a scientific expression of [plaintiff]'s exposure level" (Parker v Mobil Oil Corp., 7 NY3d 434, 449 [2006]) and met the standard for establishing specific causation set forth in Nemeth (see e.g. Sason v Dykes Lbr. Co., Inc., 221 AD3d 491, 492 [1st Dept 2023]).

The industrial hygienist properly relied on a study using a methodology "provid[ing] for the placement of the air cassettes specifically designed to capture asbestos fibers created by the simulated activity in [workers'] breathable zones" (Dyer v Amchem Prods. Inc., 207 AD3d 408, 412 [1st Dept 2022]). This Court has previously found that this "method satisfies the requirements of Nemeth" (id.).

The court providently exercised its discretion in admitting a video of "Tyndall lighting," involving bright lights in a small chamber with black walls. The industrial hygienist explained that the video was being used solely as a visual aid to illuminate asbestos fibers in the air, and not as a basis or substitute for quantifying asbestos exposure based on scientific studies (see Evans v 3M Co., 2017 NY Slip Op 30658[U], [*6]-[*9] [Sup Ct, NY County 2017]). The video was also relevant to

rebutting the defense that asbestos in gaskets was enclosed in metal, preventing asbestos fibers from being released into the air (see id. at [*9]).

Defendant failed to preserve its challenge to a jury charge, since counsel affirmatively waived any objection to part of the charge in a charge conference and otherwise did not raise the same arguments raised on appeal in the conference (see Carrasquillo v American Type Founders Co., 183 AD2d 410 [1st Dept 1992], lv denied 81 NY2d 703 [1993]). Defendant also failed to preserve its argument that the jury might have overheard the court's comment during a sidebar, in the absence of a timely objection, given that counsel waited until the next day to raise an argument about that issue (see People v Weinstein, 207 AD3d 33, 58 [1st Dept 2022], lv granted 38 NY3d 1154 [2022]). In any event, we find that those unpreserved arguments are unavailing on the merits.

Defendant's challenges to plaintiff's counsel's summation are unpreserved except as to counsel's comments suggesting that the jury represented "the voices of this community," and asserting that the damages award proposed by defendant's counsel "made a mockery of" the legal system and the principles governing damages for pain and suffering. Moreover, any improprieties in the summation were not so egregious or pervasive as to warrant reversal, in light of the strength of the plaintiff's case (see Selzer v New York City Tr. Auth., 100 AD3d 157, 164 [1st Dept 2012]; Binder v Miller, 39 AD3d 387 [1st Dept 2007]; see also Norton v Nguyen, 49 AD3d 927, 930 [3d Dept 2008]).

Defendant failed to preserve its challenge to the court's ruling requiring any summation objections to be raised after summations. Furthermore, while "blanket prohibitions" against objecting during summation are generally improper (Binder, 39 AD3d at 387), we find that any error was not sufficiently prejudicial to warrant reversal under the circumstances of this case (see id.).

The court properly declined to dismiss plaintiff's claim for future pain and suffering. The jury's award of damages for past and future pain and suffering did not "deviate [] materially from what would be reasonable compensation" (CPLR 5501[c]; see e.g. Matter of New York City Asbestos Litig. [Macaluso], 173 AD3d 529 [1st Dept 2019]; Matter of New York City Asbestos Litig. [Hackshaw], 143 AD3d 485 [1st Dept 2016], affd 29 NY3d 1068 [2017]).

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