Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation, 2019)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Supreme Court, Appellate Division, June 18, 2019).

Mary Murphy-Clagett sued A.O. Smith Corporation, Burnham LLC and other defendants after the death of Pietro Macaluso from mesothelioma. A New York County jury found he was exposed to asbestos from defendants' products, including through demolishing their boilers, and found the defendants reckless. It awarded $25 million for his pain and suffering, $17 million to his son and $18 million to his daughter for loss of parental guidance. Plaintiff had already agreed to reduce these to $10 million, $9 million and $10 million. On appeal, the First Department held that the evidence supported the exposure and recklessness findings. It also held that the trial court acted properly on the verdict sheet, on the refreshed-recollection list, on excluding a defense experiment and on the duty-to-warn charge. It found the damages still deviated materially from reasonable compensation. The court ordered a new trial on damages unless plaintiff agreed to reduce pain and suffering to $4 million and each child's award to $1 million.

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: June 18, 2019
• Citation: 173 A.D.3d 529
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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.

What the court held. A jury's findings of exposure and recklessness stand if supported by legally sufficient evidence, but damages awards that deviate materially from reasonable compensation under CPLR 5501(c) must be reduced or retried.

Issues decided: Loss of Consortium, Compensatory Damages, Expert Testimony, Failure to Warn, Trial Procedure and Discovery, Product Identification, Punitive Damages.

The people and their exposure

• Pietro Macaluso: mesothelioma; died

The defendants

• A.O. Smith Corporation (manufacturer)
• A.O. Smith Water Products Company (manufacturer)
• Burnham LLC (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.
• 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.
• 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:

• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (New York Court of Appeals, 2016). The Court of Appeals affirmed the Appellate Division's order, which upheld the judgment for plaintiff Konstantin against Tishman Liquidating Corporation, and held TLC had not preserved or recorded its joint-trial challenge and could not challenge the damages as excessive.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (New York Supreme Court, Appellate Division, 1st Dept., 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.
• 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).
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 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.
• 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

4 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.
• McWilliams v. AO Smith Water Prods. Co. (New York Supreme Court, 2023). The court denied Jenkins Bros.' motion for judgment notwithstanding the verdict, a new trial or remittitur of the $35,000,000 verdict for plaintiff McWilliams, and granted plaintiff's cross-motion, sanctioning Jenkins' counsel Clyde & Co. US LLP $10,000.
• Seen v. Kaiser Gypsum Co., Inc. (New York Supreme Court, 2023). The trial court denied Kaiser Gypsum's motion for judgment notwithstanding the verdict, a new trial, or a reduced award, leaving the plaintiff's $15,000,000 verdict in place.

Amounts in the opinion

• $ 25 million (compensatory)
• $17 million (compensatory)
• $18 million (compensatory)
• $4 million (other)

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.

173 A.D.3d 529 (2019)

104 N.Y.S.3d 99

2019 NY Slip Op 04870

In the Matter of New York City Asbestos Litigation.

Mary Murphy-Clagett, Respondent,

v.

A.O. Smith Corporation et al., Appellants, etal., Defendants.

190311/15, 9634B, 9634A, 9634.

Decided June 18, 2019.

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

Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 30, 2019, upon a jury verdict awarding $ 25 million for the decedent's pain and suffering, $17 million to the decedent's son for loss of parental guidance, and $18 million to the decedent's daughter for loss of parental guidance, to the extent appealed from as limited by the briefs, upon plaintiff's stipulation to reduce the damages awards, awarding $ 10 million for the decedent's pain and suffering, $9 million to the decedent's son for loss of parental guidance, and $10 million to the decedent's daughter for loss of parental guidance, unanimously modified, on the facts, to direct a new trial on damages unless plaintiff stipulates, within 30 days after the date of entry of this order, to further reduce the award for the decedent's pain and suffering to $4 million, the award for loss of parental services for the decedent's son to $1 million, and the award for loss of parental services for the decedent's daughter to $1 million, and otherwise affirmed, without costs. Appeals from orders, same court and Justice, entered December 16, 2018, October 1, 2018, on or about September 25, 2018, and on or about September 21, 2018, unanimously dismissed, without costs, as subsumed in the appeals from the judgment.

Concur—Sweeny, J.P., Manzanet-Daniels, Kapnick, Oing, Singh, JJ.

The jury's finding that, Pietro Macaluso, plaintiff's decedent was exposed to asbestos from the products manufactured by defendants is supported by legally sufficient evidence. The trial court properly permitted Macaluso to refresh his recollection with a list of manufacturers that he helped his counsel draw up in preparation for responding to interrogatories, and the issue whether his memory was properly refreshed was a matter of credibility for the jury to resolve (People v Phillibert, 99 AD3d 531 [1st Dept 2012], lv denied 20 NY3d 1014 [2013]). The evidence adduced by defendant A.O. Smith Water Products [*530] Company was not dispositive as to whether plaintiff was exposed to its product (see Penn v Amchem Prods., 85 AD3d 475 [1st Dept 2011]; Taylor v A.C. & S., Inc., 306 AD2d 202 [1st Dept 2003]). The court's preclusion of defendant Burnham LLC from producing a witness from a similarly named company was harmless error in light of the court's admitting other evidence about that company and the possibility of "mistaken identity."

The jury's finding of recklessness is supported by legally sufficient evidence, and is not against the weight of the evidence (see Matter of New York City Asbestos Litig., 121 AD3d 230, 247-248 [1st Dept 2014], affd 27 NY3d 1172 [2016], affd 27 NY3d 765 [2016]). The court correctly omitted settling defendant Johns-Manville from the verdict sheet, as defendants failed to show that any of the products the decedent was exposed to contained asbestos manufactured by Johns-Manville (see Bigelow v Acands, Inc., 196 AD2d 436, 438 [1st Dept 1993]).

Plaintiff's expert testimony was sufficient to establish that the decedent's demolition of defendants' boilers resulted in exposure to asbestos dust in sufficient quantities to cause the decedent's mesothelioma (see Matter of New York City Asbestos Litig., 154 AD3d 441 [1st Dept 2017], lv denied 30 NY3d 909 [2018]). The court properly precluded evidence of an experiment conducted by a defense expert, as the conditions under which the experiment was performed were not sufficiently similar to those experienced by the decedent during his exposure, and thus the evidence could have misled the jury (see Bradshaw v Lenox Hill Hosp., 158 AD3d 427 [1st Dept 2018]).

The evidence that the boilers contained asbestos-containing products from third parties, and/or that asbestos-containing products would be used in conjunction with defendants' products, was sufficient to render appropriate a jury charge on the duty to warn, and the content of the court's charges on the issue of duty was correct (see e.g. Matter of New York City

Asbestos Litig., 2015 NY Slip Op 30043[U], [*5]-7 [Sup Ct, NY County 2015], mod on other grounds 143 AD3d 483 [1st Dept 2016], lv dismissed 28 NY3d 1165 [2017]).

However, we find that the damages award for the decedent's pain and suffering must be reduced as it deviates materially from what would be reasonable compensation (CPLR 5501 [c]; see Matter of New York City Asbestos Litig., 154 AD3d at 441; Penn v Amchem Prods., 85 AD3d at 475). Although this reduced award is "significant and exceeds amounts set in some of our precedents," it is supported by decedent's "severe and crippling symptoms" and "tremendous physical and emotional pain" (Matter of New York City Asbestos Litig., 143 AD3d 485, 486 [1st [*531] Dept 2016], affd 29 NY3d 1068 [2017]). The awards for loss of parental guidance to the decedent's children also deviate materially from what would be reasonable compensation (see Adderley v City of New York, 304 AD2d 485 [1st Dept 2003], lv denied 100 NY2d 511 [2003]; Grevelding v State of New York, 132 AD3d 1332 [4th Dept 2015], lv denied 27 NY3d 905 [2016]; Vasquez v County of Nassau, 91 AD3d 855 [2d Dept 2012]). We thus remand for a new trial on damages unless plaintiff stipulates to reduce the awards as indicated.

531

We have considered defendants' remaining contentions and find them unavailing.

Sources

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