Penn v. Amchem Products (2010)

Our plain-English summary of Penn v. Amchem Products (New York Supreme Court, Appellate Division, May 11, 2010).

Marvin Penn and Josephine Penn sued Kerr Corporation and other companies over Marvin Penn's mesothelioma. Penn had been a dental technician student and used asbestos-containing dental liners to make prosthetic teeth. A jury found Kerr liable, but the trial court overturned that result, finding the evidence did not show Kerr distributed the liners Penn used. The plaintiffs appealed. The Appellate Division, First Department, ruled for the plaintiffs on this point. It said the jury could reasonably conclude Kerr distributed the liners, because the school gave Penn boxes with Kerr's name, he followed a chart made for Kerr's casting ring product, Kerr supplied such liners to technician schools then, and Kerr often packaged liners with that product. Differences in descriptions of the liners were a credibility question for the jury. The court also found enough evidence of causation, based on visible dust and expert testimony, and of failure to warn, since Kerr did not test the liners' safety. Kerr's other objections were unpreserved. The court said the damage awards deviated from reasonable compensation to the extent indicated.

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 11, 2010
• Citation: 73 A.D.3d 493
• Stage: Appeal from post-trial motions
• State: New York

Outcome. The Appellate Division held that the evidence was sufficient for the jury to find Kerr distributed the asbestos dental liners Penn used, rejecting the trial court's contrary finding in Kerr's favor, and ruled that the damage awards deviated from reasonable compensation.

What the court held. Viewed in the light most favorable to the plaintiffs, evidence that boxes bore the defendant's name, that it supplied liners to the school, and that visible dust arose with expert testimony on dose was enough for the jury to find product identification, causation and failure to warn.

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

The people and their exposure

• Marvin Penn: mesothelioma

The defendants

• Kerr Corporation (supplier)
• Celotex Corp. (manufacturer) · its asbestos trust
• Nicolet (manufacturer)

Other decisions in this case

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

• Penn v. Amchem Products (June 9, 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

3 later decisions in our library cite this one:

• 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.
• Hackshaw v. Crane Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Crane Co.'s motion for judgment notwithstanding the verdict, and set aside the verdict only to order new trials on damages for Hackshaw's past and Sweberg's future pain and suffering unless the plaintiffs accept reductions to $6 million and $5 million.
• Friedman v. AI Friedman, LP (New York Supreme Court, 2011). The trial court denied defendant DAP Inc.'s motion for summary judgment in its entirety, so plaintiff Roberta Friedman's claims against DAP go forward.

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.

73 A.D.3d 493 (2010)

903 N.Y.S.2d 1

JOSEPHINE PENN et al., Appellants,

v.

AMCHEM PRODUCTS et al., Defendants, and

KERR CORPORATION, Respondent.

2757, 105637/07

Decided May 11, 2010.

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

Concur—Saxe, J.P., Friedman, Nardelli and Abdus-Salaam, JJ.

Contrary to the trial court's finding, the evidence, viewed in the light most favorable to the prevailing plaintiffs (see Matter of New York City Asbestos Litig., 256 AD2d 250, 250 [1998], lv denied 93 NY2d 818 [1999], cert denied sub nom. Worthington Corp. v Ronsini, 529 US 1019 [2000]), was sufficient to permit the jury to rationally conclude that the asbestos-containing dental liners to which the injured plaintiff (Marvin Penn) was exposed were distributed by Kerr. Such conclusion could be [*494] drawn from the evidence that Penn's dental technician school gave him boxes containing dental liners used to make prosthetic teeth that had Kerr's name on them; that Penn followed a chart specifically made for Kerr's casting ring product when given a box with Kerr's name on it; that Kerr supplied asbestos-containing dental liners to dental technician schools at the time Penn was a student; and that Kerr often packaged its casting ring product with its dental liners. That Penn's description of the dental liners he used differed from the descriptions given by Kerr's representatives does not conclusively establish that Penn did not use Kerr's liners, and simply raised a credibility issue for the jury.

On the issue of causation, sufficient evidence was provided by Penn's testimony that visible dust emanated while working with the dental liners and by his expert's testimony that such dust must have contained enough asbestos to cause his mesothelioma (see Matter of New York Asbestos Litig., 28 AD3d 255, 256 [2006]). On the issue of duty to warn, evidence that Kerr did not test or investigate the safety of its asbestos liners permitted the jury to conclude that Kerr failed to adequately warn Penn of a potential danger that it knew or should have known about (see George v Celotex Corp., 914 F2d 26, 28 [1990]).

Kerr's argument that the verdict is inconsistent in holding it but not Celotex and Nicolet liable is unpreserved, since it was not raised until after the jury was discharged, and we decline to consider it (see Barry v Manglass, 55 NY2d 803, 806 [1981]; Gavitt v Citnalta Constr. Corp., 33 AD3d 406, 407 [2006]). We do note, however, that the jury need not have credited Kerr's representative's testimony that Celotex and Nicolet supplied Kerr with prepackaged asbestos liners and rolls. Kerr's argument that plaintiffs' counsel's remarks on summation were improper is also unpreserved, since Kerr failed to object during summation, ask for curative instructions, or seek a mistrial with regard to them, and we decline to consider it (see Wilson v City of New York, 65 AD3d 906, 908 [2009]). Were we to consider it, we would find that while some remarks were improper, they were not so egregious as to warrant a new trial (id. at 909).

The damage awards deviate from what would be reasonable compensation to the extent indicated (CPLR 5501 [c]).

Sources

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