Penn v. Amchem Products (2011)

Our plain-English summary of Penn v. Amchem Products (New York Supreme Court, Appellate Division, June 9, 2011).

Josephine Penn and another plaintiff sued Kerr Corporation and other companies after Penn developed mesothelioma. Penn had used asbestos-containing dental liners to make prosthetic teeth while a student at a dental technician school. A jury found for the plaintiffs against Kerr, but the trial court disagreed with that outcome. On appeal, the Appellate Division, First Department, ruled that the evidence was enough for the jury. Penn's school gave him boxes of liners bearing Kerr's name. He followed a chart made for Kerr's product. Kerr supplied such liners to schools at that time. Penn testified that visible dust came off the liners, and his expert said the dust must have held enough asbestos to cause his disease. The court also found that Kerr's failure to test the liners' safety let the jury find a failure to warn. It declined to consider Kerr's complaints about an inconsistent verdict and about counsel's closing remarks, because Kerr raised them too late. The court noted the damage awards deviate from reasonable compensation. It also recalled and vacated its earlier 2010 decision.

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 9, 2011
• Citation: 85 A.D.3d 475
• Stage: Appeal from post-trial motions
• State: New York

Outcome. 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.

What the court held. Viewed in the light most favorable to the prevailing plaintiffs, evidence that Kerr's name was on the liner boxes, that Kerr supplied such liners to the schools, and that Kerr did not test the liners' safety permitted the jury to find product identification, causation and a failure to warn. Objections to summation and to an allegedly inconsistent verdict that were not raised in time were unpreserved.

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

Why this case is relevant

The Appellate Division, First Department, ruled that the trial court was wrong to reject a jury's finding against Kerr, a dental-liner distributor. It held that boxes bearing Kerr's name, together with evidence that Kerr supplied such liners to dental technician schools, let the jury identify the product. Differences in the plaintiff's description of the liners only raised a credibility issue. Relying on an earlier First Department ruling, it held that testimony that visible dust came off the liners, plus an expert's opinion that the dust held enough asbestos to cause mesothelioma, was sufficient evidence of causation for the jury. It also found that Kerr's failure to test the liners' safety supported a failure-to-warn finding.

Later courts, including the First and Fourth Departments, frequently cite it on proving causation through visible dust and expert testimony. In 2017, however, the First Department said this and similar decisions do not justify a judgment resting on a bare conclusion of causation. A later trial court decision repeated that visible dust alone is not enough. New York trial courts also cite it for treating a differing product description as a jury credibility question, and as a comparison when reviewing mesothelioma damage awards.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Penn: mesothelioma

The defendants

• Kerr Corporation (supplier)

Other decisions in this case

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

• Penn v. Amchem Products (May 11, 2010). 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Penn v. Amchem Products (New York Supreme Court, Appellate Division, 1st Dept., 2010). 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.

Later decisions citing this one

34 later decisions in our library cite this one. The 30 from the highest courts, newest first:

• Maffei v. Burnham (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2025). The First Department affirmed the jury-verdict judgment for plaintiffs Romeo and Rosa Maffei against Burnham LLC, including compensatory, consortium and punitive awards, and dismissed the appeal from the post-trial order as subsumed in the judgment.
• Pistone v. American Biltrite, Inc. (New York Supreme Court, Appellate Division, 2nd Dept., 2021). The Appellate Division reversed the order granting summary judgment to American Biltrite, Inc. and Mannington Mills, Inc., and denied their motions, so the plaintiffs' claims against them continue.
• 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.
• 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.
• North v. National Grid Generation (IN the Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2016). The First Department affirmed the jury judgment for plaintiff against National Grid ($3.5 million for future pain and suffering), and modified the indemnification order so National Grid also recovers attorneys' fees for defending plaintiff's action against O'Connor, otherwise affirming.
• 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).
• 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.
• Pistone v. American Biltrite, Inc. (New York Supreme Court, 2018). The trial court granted summary judgment to Mannington Mills and American Biltrite, dismissing Victoria Pistone's complaint and all cross-claims against them, because she did not show that chrysotile causes peritoneal mesothelioma or that she was exposed to enough of it from their products.
• 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.
• Hernandez-Vega v. Air & Liquid Sys. Corp. (New York Supreme Court, 2016). The court denied Flowserve's summary judgment motion on the valve claims, finding it did not meet its burden and fact issues remained for the jury, but dismissed plaintiff's claims relating to Rockwell pumps because Flowserve never made them.
• 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.
• Bartolone v. Union Carbide Corp. (In re New York City Asbestos Litigation) (New York Supreme Court, 2016). The court denied Union Carbide's motion for summary judgment in its entirety, so plaintiff's estate's claims against Union Carbide go forward to trial.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2016). The court denied Ammco's motion for judgment notwithstanding the verdict and upheld the liability findings for plaintiff Walter Miller, but vacated the $25 million pain and suffering award and ordered a new damages trial unless plaintiff stipulated to a reduced award.
• DePriest v. Crane Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2016). The trial court denied Crane Co.'s in limine motion to preclude plaintiffs' medical experts from giving specific causation testimony and denied its request for a Frye hearing, so plaintiffs may offer the testimony.
• Hernandez-Vega v. Fisher Controls Int'l (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Fisher Controls' motion for summary judgment on plaintiff Hernandez-Vega's claims, but dismissed the breach of warranty, market share liability and concert of action counts, and denied dismissal of the punitive damages count with leave to renew.
• 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.
• Ricci v. Crane Co. (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied defendant Crane Co.'s motion for summary judgment dismissing plaintiff Mark Ricci's complaint and all claims and cross-claims against it.
• Ricci v. Cleaver-Brooks (In re New York City Asbestos Litigation) (New York Supreme Court, 2015). The court denied Cleaver-Brooks' motion for summary judgment dismissing plaintiff Mark Ricci's complaint and all claims and cross-claims against it, so the plaintiff won and the case goes to trial.
• Juni v. Ford Motor Co. (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The court granted Ford Motor Company's post-trial motion, set aside the jury verdict for plaintiffs Arthur and Mary Juni in its entirety, and directed judgment for Ford.
• Galasso v. BF Goodrich (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2015). The trial court denied BF Goodrich's motion for summary judgment dismissing the Galassos' complaint and all claims and cross-claims against it, so plaintiffs prevailed on the motion.
• Brown v. Bell & Gossett Co. (New York Supreme Court, 2014). The court granted Con Edison's motion to set aside the jury verdict against it, vacated the judgment for the plaintiffs (Brown's estate and his wife), and dismissed the complaint against Con Edison.
• McCloskey v. AO Smith Water Prods. (New York Supreme Court, 2014). The court denied Mario & DiBono's motion to set aside the verdict on causation, recklessness, apportionment, pain and suffering and consolidation, but ordered a new trial on loss of consortium damages unless plaintiffs accept a reduction of that award from $2 million to $340,000.

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.

85 A.D.3d 475 (2011)

925 N.Y.S.2d 28

JOSEPHINE PENN et al., Appellants,

v.

AMCHEM PRODUCTS et al., Defendants, and

KERR CORPORATION, Respondent.

2757, 105637/07.

June 9, 2011.

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

[*476] Concur — Saxe, J.P., Friedman, Moskowitz 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 (Penn) was exposed were distributed by Kerr. Such conclusion could be 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 [*477] 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]). The decision and order of this Court entered herein on May 11, 2010 (73 AD3d 493 [2010]) is hereby recalled and vacated (see 2011 NY Slip Op 75116[U] [2011] [decided simultaneously herewith]).

Sources

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