Maffei v. Burnham (Matter of New York City Asbestos Litig., 2025)

Our plain-English summary of Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, March 13, 2025).

Romeo Maffei and his wife Rosa sued several companies in New York's consolidated asbestos litigation. A jury returned a verdict against Burnham LLC, which used asbestos in its products. The jury awarded Romeo $6.6 million for past and $19.9 million for future pain and suffering, awarded Rosa $2 million past and $3 million future for loss of consortium, and added $6.5 million in punitive damages. Burnham appealed, asking to overturn the verdict or reduce the awards. The First Department affirmed. It held that the testimony of plaintiffs' industrial hygienist and thoracic surgeon was enough to show specific causation. It found the trial court acted within its discretion in barring cross-examination of the surgeon about other companies' products, because Burnham had not shown specific causation against them. The court found ample support for reckless disregard, since Burnham knew the danger early and gave no warning. It held the damages awards reasonable, the punitive award within due process limits, and the 15% fault assigned to Romeo for smoking supported by the evidence. The appeal from the order was dismissed as subsumed in the judgment.

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 13, 2025
• Citation: 2025 NY Slip Op 1425
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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.

What the court held. Expert testimony from an industrial hygienist and a thoracic surgeon sufficed to establish specific causation, and the compensatory, consortium and punitive awards and the 15% fault allocation to the plaintiff for smoking were upheld as reasonable and supported by the evidence.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Loss of Consortium, Compensatory Damages, Expert Testimony, Failure to Warn, Trial Procedure and Discovery, Punitive Damages.

The people and their exposure

• Romeo Maffei: mesothelioma

The defendants

• Burnham 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.
• 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.
• Ford v. AO Smith Water Products (New York Supreme Court, Appellate Division, 1st Dept., 2019). The First Department modified the judgment against Burnham LLC, vacating the $2 million future pain and suffering award and ordering a new trial on those damages unless plaintiff stipulated to reduce it to $500,000, and otherwise affirmed the verdict for plaintiff.
• 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.

Amounts in the opinion

• $6.6 million (compensatory)
• $19.9 million (compensatory)
• $2 million (compensatory)
• $3 million (compensatory)
• $6.5 million (punitive)

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.

2025 NY Slip Op 01425

IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION.

ROMEO MAFFEI, Plaintiff-Respondent,

ROSA MAFFEI, Plaintiff,

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

BURNHAM LLC, Defendant-Appellant.

Index No. 190378/18, Appeal Nos. 3894-3895-3895A, Case Nos. 2024-05281, 2024-06268.

Decided March 13, 2025.

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

Appeal from the Supreme Court, New York County (Mary V. Rosado, J.), entered September 17, 2024.

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

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

Before: Manzanet-Daniels, J.P., Kapnick, Pitt-Burke, Rosado, O'Neill Levy, JJ.

Judgment, Supreme Court, New York County (Mary V. Rosado, J.), entered September 17, 2024, upon a jury verdict, in favor of plaintiffs and against defendant Burnham LLC, awarding plaintiff Romeo Maffei $6.6 million for past pain and suffering and $19.9 million for future pain and suffering over 17.5 years, plaintiff Rosa Maffei $2 million for past loss of consortium and $3 million for future loss of consortium, and $6.5 million in punitive damages, and bringing up for review an order, same court and Justice, entered July 22, 2024, which denied Burnham's motion to set aside the verdict and direct that judgment be entered in its favor as a matter of law or, alternatively, as against the weight of the evidence or in the interest of justice, or, alternatively, to reduce the damages awards as excessive, unanimously affirmed, without costs. Appeal from aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Contrary to Burnham's contention, the testimony of plaintiffs' expert industrial hygienist and thoracic surgeon was sufficient to establish specific causation under the applicable standard (see Matter of New York City Asbestos Litig. [McWilliams], 224 AD3d 597, 597-598 [1st Dept 2024], lv dismissed 42 NY3d 1030 [2024]; Sason v. Dykes Lbr. Co., Inc., 221 AD3d 491 [1st Dept 2023]).

The trial court did not improvidently exercise its discretion in precluding Burnham from cross-examining plaintiffs' expert thoracic surgeon regarding exposure to asbestos from other alleged tortfeasors' products on the basis that Burnham did not establish specific causation against any other such alleged tortfeasors (Matter of New York City Asbestos Litig. [Idell], 164 AD3d 1128, 1129 [1st Dept 2018], appeal dismissed 32 NY3d 1186 [2019]).

There is ample support for the conclusions that Burnham acted with reckless disregard and that this was a case "involving an improper state of mind or malice or. . . wrongdoing to the public" (Maffei v. A.O. Smith Water Prods. Co., 210 AD3d 537, 537 [1st Dept 2022] [citation and internal quotation marks omitted]). The record establishes that Burnham used asbestos in its products despite knowing full well, very early on, about the danger it posed, and without warning of that danger. We acknowledge that this has been established against Burnham in prior cases as well (see e.g. Matter of New York City Asbestos Litig. [Assenzio], 2015 NY Slip Op 30201[U] [Sup Ct, NY County 2015]).

The jury's awards to Romeo of $6.6 million for past pain and suffering over a period of roughly 77 months (just under $90,000 per month) and $19.9 million for future pain and suffering over 17.5 years (just over $90,000 per month) did not deviate materially from what would be reasonable compensation (CPLR 5501 [c]; see e.g. Ford v. A.O. Smith Water Prods., 173 AD3d 602 [1st Dept 2019] [affirming award to plaintiff who developed mesothelioma following asbestos exposure of $5 million for past pain and suffering over 17 months (just under $300,000 per month) and modified to vacate the award for future pain and suffering and order a new trial of those damages, unless plaintiff stipulates to reduce the award for future pain and suffering to $500,000 and suffering over one month]). Nor were the $2 million and $3 million awards to Rosa for past and future loss of consortium, respectively, excessive under the circumstances (see Matter of New York Asbestos Litig.

[Brown], 146 AD3d 461, 462-463 [1st Dept 2017], appeal dismissed 29 NY3d 1141 [2017], citing Penn v. Amchem Prods., 85 AD3d 475, 476 [1st Dept 2011]). We decline to disturb the $6.5 million punitive damages award, roughly five time less than the total compensatory damages award and well within the outer boundaries prescribed by due process (see generally State Farm Mut. Auto. Ins. Co. v. Campbell, 538 US 408, 425 [2003]).

Lastly, the jury's apportionment of 15% fault to Romeo is supported by a fair interpretation of the evidence, based on his history of smoking, and was not against the weight of the evidence (see generally Lolik v. Big V Supermarkets, 86 NY2d 744, 746 [1995]). It was entirely within the jury's province to assess the credibility of the parties and their witnesses and to determine what to credit in rendering its verdict (see generally e.g. Bledsoe v. Center for Human Reproduction, 228 AD3d 96, 101 [1st Dept 2024]; Rozon v. Schottenstein, 204 AD3d 94, 100 [1st Dept 2022]).

We have considered Burnham'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