Zalinka v. Owens-Corning Fiberglass Corp. (1995)

Our plain-English summary of Zalinka v. Owens-Corning Fiberglass Corp. (New York Supreme Court, Appellate Division, November 22, 1995).

John Zalinka worked at the Watervliet Arsenal in New York from 1952 to 1970 and was frequently exposed to asbestos there. In 1991 he was diagnosed with mesothelioma. He and his wife sued several companies that made or sold asbestos products to the arsenal. All defendants except Owens-Corning Fiberglass Corporation (OCF) settled. At trial the jury found OCF liable for the full damages, and the judgment was reduced, presumably by the settlement proceeds. OCF appealed, arguing the evidence did not support causation or its sole responsibility. The Appellate Division affirmed. OCF made Kaylo pipe insulation, which released asbestos dust when cut. Zalinka testified that he breathed that dust, and the plaintiffs' expert said it substantially contributed to his illness. Once liability of a nonsettling defendant was shown, OCF had to prove the settling defendants' shares of fault. It offered no evidence on their warnings, and Zalinka's testimony that he saw no warnings did not force the jury to find there were none.

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, 3rd Dept.
• Decided: November 22, 1995
• Citation: 221 A.D.2d 830
• Stage: Appeal from judgment after trial
• State: New York

Outcome. The appellate court affirmed the judgment entered on the jury verdict for plaintiffs John Zalinka and his wife against Owens-Corning Fiberglass Corporation, which lost its appeal.

What the court held. Where plaintiffs show liability of a nonsettling defendant, the burden shifts to that defendant to establish the equitable share of culpability of each settling defendant. Testimony about the plaintiff's inhalation of dust from cutting Kaylo, plus expert opinion on causation, was enough to sustain the verdict.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Failure to Warn, Product Identification.

The people and their exposure

• John Zalinka: mesothelioma

The defendants

• Owens-Corning Fiberglass Corporation (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Johnson v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1990). The Second Circuit affirmed the jury judgment for plaintiffs John and Ann Marie Johnson, including compensatory and punitive damages, against Celotex and Owens-Illinois; one judge dissented as to punitive damages.

Later decisions citing this one

7 later decisions in our library cite this one:

• 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.
• Hamilton v. Garlock, Inc. (U.S. District Court, Southern District of New York, 2000). The court denied Atlas Turner's Rule 50 and 59 motions to set aside the roughly $4.29 million mesothelioma verdict or obtain a new trial, and granted Hamilton's motions for discovery and entry of judgment.
• 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.
• 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.
• 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.
• Konstantin v. 630 Third Ave. Assoc. (New York Supreme Court, 2012). The court denied Tishman Liquidating Corp.'s motion for judgment notwithstanding the verdict and upheld liability and the economic damages, but vacated the $7 million and $12 million pain and suffering awards and ordered a new damages trial unless plaintiff Konstantin accepts reductions to $4.5 million and $3.5 million.

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.

221 A.D.2d 830 (1995)

633 N.Y.S.2d 884

John Zalinka et al., Respondents,

v.

Owens-Corning Fiberglass Corporation, Appellant

November 22, 1995

Appellate Division of the Supreme Court of the State of New York, Third Department.

Mikoll, J. P., Yesawich Jr., Peters and Spain, JJ., concur.

Crew III, J.

From 1952 until 1970, plaintiff John Zalinka (hereinafter Zalinka) was employed at the Watervliet Arsenal in the City of [*831] Watervliet, Albany County, where, as the result of his work, he frequently was exposed to asbestos. In 1991 Zalinka was diagnosed as suffering from mesothelioma, a form of lung cancer associated with exposure to asbestos. As a consequence, Zalinka and his wife commenced this action against multiple defendants alleging that each manufactured, sold or distributed asbestos products to the arsenal during Zalinka's employ, the exposure to which caused his cancerous condition. Ultimately, plaintiffs negotiated settlements with all of the defendants except Owens-Corning Fiberglass Corporation (hereinafter OCF). Following a jury trial, a verdict was rendered in favor of plaintiffs wherein the jury determined that OCF was liable for the full amount of the damages assessed. As a result, judgment was entered reducing OCF's liability, presumably by the amount of the proceeds of plaintiffs' settlement with the other defendants. OCF now appeals. We affirm. In order for OCF to prevail, it must appear upon a fair interpretation of the evidence that no valid line of reasoning or set of permissible inferences exist that would permit the jurors to arrive at the verdict reached (see, Cohen v Hallmark Cards, 45 N.Y.2d 493, 499). Such is not the case here. OCF manufactured Kaylo, an asbestos-containing product which was used to insulate pipes at the arsenal while plaintiff was employed there. When installing or replacing Kaylo, it was necessary to cut the product, which resulted in the release of dust and asbestos fibers. Zalinka testified that he inhaled this debris on occasions when Kaylo was being installed or replaced at the arsenal, and plaintiffs' expert was of the opinion that Zalinka's inhalation of the aforesaid fibers was a substantial contributing cause of his condition. This evidence of causal connection is sufficient to sustain the jury's verdict (see, Johnson v Celotex Corp., 899 F.2d 1281, 1286-1287, cert denied 498 US 920).

We further reject the contention that the jury's determination that OCF was solely responsible for Zalinka's injuries is not supported by any fair interpretation of the evidence. Where, as here, plaintiffs demonstrate liability on the part of a nonsettling defendant, the burden shifts to that defendant to establish the equitable share of culpability attributable to each of the settling defendants (see, Bigelow v Acands, Inc., 196 AD2d 436, 438). Here, OCF offered no evidence regarding the lack of warnings by the settling defendants or the allegedly inadequate warning of Johns-Manville. While it is true, as urged by OCF, that it may rely upon any evidence in the record tending to support its contention that the settling defendants failed [*832] to warn consumers that their products contained asbestos, Zalinka's testimony that he never saw any warnings on asbestos products used at the arsenal did not compel the jury to conclude that there were, in fact, no such warnings. Under the circumstances, it cannot be said that the jury erred in determining that OCF failed in its burden of establishing the settling defendants' equitable share of plaintiffs' damages. OCF's remaining contentions have been examined and found to be lacking in merit.

Ordered that the judgment is affirmed, with costs.

Sources

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