Hackshaw 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).

Dorcas Hackshaw sued, individually and as executrix of her late husband Selwyn Hackshaw's estate, over his mesothelioma. Crane Co. was the defendant that appealed after a jury verdict against it. The decedent worked as a mechanic and electrician. He removed asbestos-containing insulation from Crane's valves and mixed asbestos-containing insulation cement, which produced visible dust. The evidence showed Crane promoted and sold asbestos insulation for its products, knew of asbestos dangers from the 1930s, and never warned him. The First Department affirmed liability. Relying on a 2016 Court of Appeals decision, it held the jury could rationally find Crane had a duty to warn and that its failure caused the mesothelioma. It also found the evidence of recklessness sufficient. It declined to review Crane's unpreserved objection to the foreseeability instruction and said any error would be harmless. It found the award for roughly twelve months of past pain and suffering deviated materially from reasonable compensation and reduced it to the extent indicated. The reduced figure does not appear in the text.

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 485
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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).

What the court held. Applying the Court of Appeals' 2016 standard, a manufacturer may be liable for failing to warn of asbestos hazards in insulation used with its products where it promoted and sold that insulation and its products needed insulation to operate safely and efficiently.

Issues decided: The Bare-Metal Defense, Causation, Compensatory Damages, Failure to Warn, Trial Procedure and Discovery, Punitive Damages.

The people and their exposure

• Selwyn A. Hackshaw: mesothelioma; died

The defendants

• Crane Co. (manufacturer)

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.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (October 6, 2016). 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.
• 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.

Later decisions citing this one

11 later decisions in our library cite this one:

• McWilliams v. Jenkins Bros. (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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 485 (2016)

2016 NY Slip Op 06558

39 N.Y.S.3d 130

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

DORCAS HACKSHAW, Individually and as Executrix of SELWYN A. HACKSHAW, Deceased,

Respondent,

v.

ABB, INC., as Successor in Interest to ITE CIRCUIT BREAKERS, INC., etal., Defendants, and

CRANE CO., Appellant.

668, 190022/13.

Decided October 6, 2016.

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

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered February 22, 2012, convicting defendant, after a nonjury trial, of assault in the first degree and sentencing him to a term of 13 years, unanimously affirmed. Concur — Mazzarelli, J.P., Renwick, Moskowitz, Kapnick and Kahn, JJ.

[*487] 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 trial evidence demonstrates that, while defendant Crane did not manufacture asbestos, for decades it promoted the use of asbestos-containing materials for insulating its products. Defendant Crane sold these asbestos-containing products alongside its own products in its "house stores," marketing the materials in catalogs sent to its customers. The evidence also demonstrates that defendant had been aware of the dangers of asbestos exposure since the 1930s, and that the decedent was never advised by defendant or his employers about those dangers. In addition, since defendant's own witness conceded that it would be extremely inefficient and a safety concern for operators of its boilers to [*486] operate them without insulating them, plaintiff satisfied the standard for liability recently articulated by the Court of Appeals in Matter of New York City Asbestos Litig. (27 NY3d 765 [2016]). 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.).

Defendant's contention that the court's instructions to the jury on foreseeability were improper is unpreserved and we decline to review it in the interests of justice. Were we to do so, we would find any error to be harmless. Plaintiff also set forth sufficient evidence to demonstrate that defendant's failure to warn was the proximate cause of decedent's injuries. The decedent testified that he was employed both as a mechanic and as an electrician, working, over a period of years, with asbestos-containing insulation being removed from defendant's valves and mixing asbestos-containing insulation cement, both of which generated asbestos dust that could be seen flying in the air (see Penn v Amchem Prods., 85 AD3d 475, 476 [1st Dept 2011]; Matter of New York Asbestos Litig., 28 AD3d 255, 256 [1st Dept 2006]). Plaintiff's expert testified that that dust contained enough asbestos to cause the decedent's mesothelioma (see Lustenring v AC&S, Inc., 13 AD3d 69, 70 [1st Dept 2004], lv denied 4 NY3d 708 [2005]).

It was rational for the jury to conclude that defendant acted recklessly in light of the evidence showing its long-standing knowledge of the dangers of asbestos.

We find that the award, as reduced by stipulation, for past pain and suffering over a period of approximately 12 months, deviates materially from what is reasonable compensation to the extent indicated (CPLR 5501 [c]). Although this Court's damages award is significant and exceeds amounts set in some of our precedents, the jury and trial judge, who had an opportunity to hear the testimony firsthand, concluded that a substantial award was appropriate in light of the testimony about the extent of decedent's suffering. The record suggests the conclusion that decedent experienced severe and crippling symptoms, as well as tremendous physical and emotional pain, which justifies the amount we are awarding. 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