Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation, 2016)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Supreme Court, Appellate Division, October 6, 2016).

Laraine Sweberg sued as executrix of her husband Ivan Sweberg's estate, alleging he developed mesothelioma from asbestos exposure. The defendants included Crane Co. and ABB, Inc. The opinion says he worked as an electrician in the same rooms as Crane's boilers. He testified to dust from installing, renovating and demolishing the boilers and their asbestos insulation, and from mixing asbestos concrete powder used as finishing insulation. The First Department first reversed a ruling on a Labor Law § 240(1) claim, granted the defendants' summary judgment motion and dismissed the complaint on that claim. It then upheld a jury verdict against Crane. It found that Crane promoted and sold asbestos insulation for its boilers, knew of the dangers from the 1930s, and never warned him. Insulating the boilers was a practical necessity, so the jury could find a duty to warn. The court found the causation evidence sufficient. It declined to review unpreserved objections to the jury charges, and it found the future pain and suffering award materially excessive.

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 6, 2016
• Citation: 143 A.D.3d 483
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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.

What the court held. A manufacturer that promoted and sold asbestos insulation for its boilers, and for which insulation was a practical necessity, could be held to have a duty to warn of asbestos hazards. Unpreserved objections to jury instructions are not reviewed.

Issues decided: Causation, Compensatory Damages, Failure to Warn, Trial Procedure and Discovery, Punitive Damages.

The people and their exposure

• Ivan Sweberg: mesothelioma; died

The defendants

• Crane Co. (manufacturer)
• ABB, Inc.

Other decisions in this case

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

• Held v. Sequoia Ventures (Matter of New York City Asbestos Litigation) (June 12, 2007). The Appellate Division affirmed the ruling in favor of Sequoia Ventures (formerly Bechtel), rejecting the plaintiff executrix's claim that the engineer's insulation specifications caused her husband's mesothelioma.
• Croteau v. Treadwell Corp. (Matter of New York City Asbestos Litigation) (June 26, 2007). The Appellate Division affirmed the order granting Con Edison contractual indemnification against Treadwell for sums paid to Croteau, rejecting Treadwell's arguments.
• DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation) (December 11, 2014). The Appellate Division affirmed the denial of summary judgment to Neles-Jamesbury, Inc., holding it had not met its initial burden, so plaintiff Carl DiSalvo prevailed on the appeal.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (October 6, 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).
• Krok v. The Nash Engineering Co. (Matter of New York City Asbestos Litigation) (January 26, 2017). The Appellate Division, First Department, unanimously affirmed the trial court's denial of Nash Engineering Company's motion for summary judgment, so the plaintiff estate's claim against Nash continued.
• Brown v. Consolidated Edison Co. of New York (Matter of New York City Asbestos Litigation) (March 28, 2019). The Appellate Division reversed the judgment that capped Con Ed's share at 30% and directed an amended judgment apportioning 65% of plaintiff's total recovery against Con Ed, so plaintiff won and Con Ed lost; Con Ed's cross appeal from the denial of summary judgment was dismissed.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (June 18, 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.
• English v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litigation) (May 21, 2024). The First Department reversed the trial court's denial of Colgate-Palmolive's summary judgment motion, granted the motion and dismissed the complaint against Colgate, ruling against the plaintiff executor.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (May 21, 2024). The First Department modified the judgment against Kaiser Gypsum, ordering a new trial on pain and suffering damages unless plaintiff stipulated to reduce the $15 million award to $10 million, remanded to recalculate the judgment for settlement offsets, and otherwise affirmed the verdict for plaintiff.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Mtr OF Nyc Asbestos Litig. (New York Court of Appeals, 2016). The Court of Appeals affirmed both Appellate Division orders, leaving in place the plaintiffs' jury verdicts against Crane Co. in the Dummitt and Suttner mesothelioma cases.
• 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.
• Lustenring v. AC&S, Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2004). The Appellate Division affirmed the jury verdicts for the plaintiffs against defendant John Crane, Inc., finding the evidence sufficient, no Frye hearing required, and damages not excessive.

Later decisions citing this one

10 later decisions in our library cite this one:

• Stock v. Jenkins Bros. (Matter of Eighth Judicial District Asbestos Litigation) (New York Supreme Court, Appellate Division, 4th Dept., 2020). 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.
• Matter of New York City Asbestos Litig. v. Air & Liquid Sys. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 2020). The First Department upheld the jury's liability verdict against the Federal-Mogul Asbestos Personal Injury Trust (successor to Felt Products) but ordered a new trial on past pain and suffering and past loss of consortium unless plaintiff agreed to reduce those awards to $5.5 million and $650,000.
• Nemeth v. Brenntag N. Am. (New York Supreme Court, Appellate Division, 1st Dept., 2020). The Appellate Division modified the judgment against Whittaker, Clark & Daniels (WCD) to increase it to $3,300,000 because the trial court had miscalculated the settlement offsets, and otherwise affirmed the plaintiff's jury verdict; one judge dissented and would have entered judgment for WCD.
• 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.
• Olson v. Brenntag N. Am., Inc. (New York Supreme Court, 2020). The trial court denied Johnson & Johnson's motions for judgment as a matter of law and for a new trial on liability, but vacated the damages awards and ordered a new trial on damages unless the Olsons accept reduced compensatory and punitive awards.
• Stock v. Jenkins Bros. (IN the Matter of the Eighth Judicial District Asbestos Litigation) (New York Supreme Court, Erie, 2019). The trial court denied defendant Jenkins Bros.' motions for judgment notwithstanding the verdict, a new trial and remittitur, and also denied the plaintiffs' motion for a separate jury charge or new trial on future household services, leaving the verdict for the Stocks in place.
• Macaluso v. A.O. Smith Water Prods. Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2018). The court upheld the jury's liability verdict against A.O. Smith (with Peerless and Burnham) but found the pain-and-suffering and loss-of-parental-guidance awards excessive, ordering a new trial on damages unless plaintiff agreed to reduced amounts.
• Robaey v. Air & Liquid Sys. Corp. (New York Supreme Court, 2018). The court denied Fel-Pro's motion for judgment as a matter of law and for a new trial on liability and recklessness, but vacated the $50 million and $25 million awards and ordered a new trial on damages unless the Robaeys agreed to reduced awards.
• Evans v. 3M Co. (New York Supreme Court, 2017). The court denied the defendants' omnibus motion in limine to preclude plaintiffs' causation experts and denied a Frye hearing, so plaintiffs (Jeanne Evans, estate and spouse) prevailed over remaining defendant Burnham.
• Battistoni v. ITW Food Equipment Group (In re New York City Asbestos Litigation) (New York Supreme Court, 2016). The trial court denied defendant ITW Food Equipment Group LLC's motion for summary judgment in its entirety, so plaintiff Dario Battistoni's claims continue.

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.

143 A.D.3d 483 (2016)

2016 NY Slip Op 06557

39 N.Y.S.3d 411

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

LARAINE SWEBERG, Individually and as Executrix of IVAN SWEBERG, Deceased, Respondent,

v.

ABB, INC., etal., Defendants, and

CRANE CO., Appellant.

190017/13, 431, 430, 429.

Decided October 6, 2016.

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

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered May 8, 2015, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted plaintiffs' cross motion for partial summary judgment on the issue of liability on that claim, unanimously reversed, on the law, without costs, the motion granted, the cross motion denied, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Concur — Friedman, J.P., Acosta, Renwick and Richter, JJ.

The jury's verdict is based on sufficient evidence and is not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]). The evidence adduced at trial demonstrates that, while defendant did not manufacture asbestos, it promoted for decades the use of asbestos-containing materials for insulating its products. Defendant sold these asbestos-containing products alongside its own in its "house stores," marketing the materials in catalogs sent to its customers. [*484] The evidence also shows that defendant was aware of the dangers of asbestos exposure since the 1930's, and that decedent was never advised by defendant or his employers about those dangers. Finally, with regard to "practical necessity," Crane's own witness, while claiming that Crane's products did not require insulation to work mechanically, conceded that it would be extremely inefficient and a safety concern for users to operate its boilers without insulating them (see Matter of New York City Asbestos Litig., 27 NY3d 765, 779-780, 801-802 [2016] [Dummitt]). Accordingly, it was rational for the jury to conclude that defendant had a legal obligation to warn workers such as the decedent of the hazards of asbestos exposure, and that defendant's failure to warn proximately caused the decedent's mesothelioma (id.).

Appellant's contention that the court's instructions to the jury on foreseeability were improper is unpreserved and we decline to review it in the interest of justice. Were we to do so, we would find any error to be harmless.

Plaintiff also set forth sufficient evidence that defendant's failure to warn was the proximate cause of decedent's injuries. Decedent testified that, over a period of years as an electrician working in the same rooms as defendant's boilers, he was exposed to dust created by, inter alia, installation, renovations, and demolition of those boilers and their asbestos-containing insulation. Decedent also testified that he had been regularly exposed to the dust created when mixing asbestos concrete powder for use as finishing insulation on the boilers. Decedent further testified that this dust filled the air and settled on everything in the room, including his clothes (see Penn v Amchem Prods., 85 AD3d 475, 476 [1st Dept 2011]; Matter of New York Asbestos Litig., 28 AD3d 255 [1st Dept 2006]). Plaintiff's expert testified that such exposure was the proximate cause of decedent's development of mesothelioma (see Lustenring v AC&S, Inc., 13 AD3d 69 [1st Dept 2004], lv denied 4 NY3d 708 [2005]). Any objection defendant could have made to the jury being charged with a presumption that decedent would heed warnings, if given, is academic, since decedent testified that he would have followed such a warning (see Asbestos Litig., 121 AD3d at 253).

The court correctly submitted the issue of recklessness to the jury. To the extent that defendant argues that the language of the court's instruction on the recklessness charge was erroneous, defendant has failed to preserve that issue for appellate review as defendant "never objected to the terms of the disputed charge as given" (see Dummitt at 806 n 9), and we [*485]

decline to reach the issue in the interest of justice. In any event, there would be no reason to reverse in view of defendant's long-standing knowledge of the dangers of asbestos. Under the circumstances, however, we find that the award for future pain and suffering deviates materially from what is reasonable compensation to the extent indicated (CPLR 5501 [c]). We have considered defendant's remaining arguments and find them unavailing.

Sources

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