Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation, 2024)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Supreme Court, Appellate Division, May 21, 2024).

Sinar Seen sued on behalf of the estate of Munir Seen, who died of mesothelioma. A New York County jury found Kaiser Gypsum 70% liable and awarded $15 million for past pain and suffering. Seen had testified that he worked almost every workday with dry mix joint compound in large bags marked "Kaiser," and corporate documents showed the products' formulas contained asbestos. Kaiser appealed. The First Department held that the trial court properly allowed Seen's videotaped deposition, taken before Kaiser joined the case, because Kaiser later deposed him and could cross-examine him. It held that the evidence of exposure and specific causation was sufficient and that the talc-contamination evidence was properly admitted. It found the $15 million award materially excessive and ordered a new trial on pain and suffering unless plaintiff agreed to $10 million. It also remanded to recalculate the judgment so settlement payments from other defendants are deducted under General Obligations Law § 15-108. The judgment was otherwise affirmed.

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: May 21, 2024
• Citation: 227 A.D.3d 558
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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.

What the court held. A pain and suffering award that deviates materially from reasonable compensation under CPLR 5501(c) must be reduced or retried, and under General Obligations Law § 15-108 settlement amounts paid by settling defendants are deducted from the total award, with specified offsets for a settling defendant on the verdict sheet.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Compensatory Damages, Wrongful Death and Survival, Expert Testimony, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Munir Seen: mesothelioma; died

The defendants

• Kaiser Gypsum Company, Inc. (manufacturer)
• 84 Lumber Company
• Weyerhaeuser

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.
• 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.

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.
• 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.
• Olson v. Johnson & Johnson (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 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.
• 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.
• Ronsini v. Worthington Corp. (Matter Of New York City Asbestos Litigation. Elaine Ronsini V. Garlock, Inc.) (New York Supreme Court, Appellate Division, 1st Dept., 1998). The Appellate Division rejected the challenges by Worthington Corporation and John Crane, Inc. to the jury verdicts for the plaintiffs, and declined to disturb the liability findings, the apportionments or the damages awards as reduced by the trial court.

Amounts in the opinion

• $15 million (compensatory)
• $10 million (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.

227 A.D.3d 558 (2024)

212 N.Y.S.3d 64

2024 NY Slip Op 02788

In the Matter of New York City Asbestos Litigation.

Sinar Seen, Individually and as Temporary Administrator of the Estate of Munir Seen, Deceased,

Respondent,

v.

84 Lumber Company et al., Defendants, and

Kaiser Gypsum Company, Inc., Appellant.

Index No. 190225/18. Appeal No. 1944-1945. Case Nos. 2023-01490, 2023-06327.

Decided May 21, 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 November 2, 2023.

Clyde & Co US LLP, New York (Peter J. Dinunzio of counsel), for appellant.

Simmons Hanly Conroy LLP, New York (James M. Kramer of counsel), for respondent.

Concur—Manzanet-Daniels, J.P., Kapnick, González, Pitt-Burke, JJ.

Judgment, Supreme Court, New York County (Suzanne J. Adams, J.), entered November 2, 2023, upon a jury verdict awarding plaintiff $15 million for past pain and suffering and finding defendant Kaiser Gypsum Company, Inc. 70% liable, and bringing up for review an order, same court and Justice, entered March 16, 2023, which denied Kaiser's post-trial motion pursuant to CPLR 4404 and 5501(a), unanimously modified, on the law and the facts, to vacate the award for pain and suffering, to remand for a new trial on those damages, unless plaintiff stipulates, within 30 days of entry of this order, to reduce the award for pain and suffering to $10 million, and to entry of an amended judgment in accordance therewith, and remand to recalculate the judgment in accordance with this opinion, and otherwise affirmed, without costs. Appeal from aforementioned order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. [*559] It was a provident exercise of the trial court's discretion to permit plaintiff to admit into evidence, pursuant to CPLR 3117 (a), the videotaped de benne esse deposition (DBE) of plaintiff's decedent Munir Seen taken a few months prior to his death (see Feldsberg v Nitschke, 49 NY2d 636, 640 [1980]; see also International Fin. Corp. v Carrera Holdings Inc., 159 AD3d 465, 467 [1st Dept 2018]). While Kaiser was not yet a party to this action at the time of the DBE, it subsequently deposed Seen after it was impleaded as a third-party defendant and had a full opportunity to cross-examine him on the contents of the DBE, as well as any other relevant subjects.

Seen's testimony that he worked almost every workday with dry mix joint compound in large bags marked "Kaiser," coupled with corporate documentation concerning the asbestos-containing formulas for those products, was sufficient evidence that he was exposed to asbestos containing Kaiser products (see Matter of New York City Asbestos Litig., 256 AD2d 250, 251 [1st Dept 1998], lv denied 93 NY2d 818 [1999], cert denied 529 US 1019 [2000]; Howard v A.O. Smith Water Prods., 212 AD3d 924, 925 [3d Dept 2023]). There was also sufficient evidence to support the jury's finding of specific causation. Plaintiff's experts, in reliance on historical data and studies, calculated Seen's total exposure and opined that Kaiser's products were a proximate cause of his mesothelioma (see e.g. Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]; Matter of New York City Asbestos Litig., 186 AD3d 401 [1st Dept 2020], lv dismissed 37 NY3d 1138 [2022]; compare Nemeth v Brenntag N. Am., 38 NY3d 336 [2022]; see also Matter of New York City Asbestos Litig., 207 AD3d 415, 416 [1st Dept 2022], lv denied 39 NY3d 913 [2023]). Nor was evidence improperly admitted that the drywall compound, in addition to containing asbestos as a direct part of its formula, was contaminated by asbestos from the use of industrial talc, where plaintiff's CPLR 3101(d) expert exchange specifically stated that there would be testimony about asbestos contaminated talc and annexed various studies and articles concerning same.

We find that the damages award for pain and suffering in the amount of $15 million deviates materially from what would be reasonable compensation (CPLR 5501[c]; see Matter of New York City Asbestos Litig., 121 AD3d 230, 255 [1st Dept 2014], affd 27 NY3d 1172 [2016]). We thus direct a new trial on those damages unless plaintiff stipulates to reduce the award as indicated. We also remand this matter to the trial court to fashion the judgment in accord with General Obligations Law § 15-108 to deduct from the total award the settlement money [*560] received by those defendants who did not appear on the verdict sheet, and then to offset that amount by either the sum received from the settling defendant, Weyerhaeuser, who appeared on the verdict sheet or the 30% share attributed to it by the jury, whichever is greater (see Williams v Niske, 81 NY2d 437, 444-445 [1993]; see also Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288 [1998]).

Sources

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