Following the highly publicized $190 million verdict in NYCAL in five consolidated asbestos cases, the defendants were successful in reducing the collective award to just under $30 million on a post-trial motion. While the trial court rejected the defendants’ arguments on certain evidentiary issues, causation, apportionment, consolidation, and recklessness, it recognized that the verdicts materially deviated from what would be reasonable compensation.
The court applied the reasoning from the recent appellate court ruling in the Dummit case where the First Department assessed reasonable compensation based on the duration and nature of the pain and suffering sustained by the plaintiffs. In these consolidated cases, the trial court did the same. For example, in one of the cases, the court stated: “The jury awarded Mr. Serna $30 million for past and $30 million for future pain and suffering for one and one half years. Mr. Sema first began experiencing symptoms in December 2009, and was diagnosed with mesothelioma in December 2010 after he underwent thoroscopic surgery. In addition, he had a right thoracotomy, pleurectomy, a decortication, and an en bloc resection of the diaphragm. The first surgery involved going through the back to access the lungs, and due to the pain from the surgery, Mr. Serna had difficulty breathing. Twenty days later, he had a second surgery to remove fluid from his lungs, during which he was given blood transfusions. When the surgeries did not relieve his pain, Mrs. Serna testified he became depressed and stopped talking and eating. In addition to the surgeries, Mr. Serna had eight cycles of chemotherapy which made him sick so that he did not eat and could not walk up the stairs. Dr. Schacter testified Mr. Serna experienced breakthrough pain, i.e. pain which is experienced despite medication, and that Mr. Serna is depressed, reports he is unable to sleep, and has had thoughts of suicide. Based on Mr. Serna’s extensive medical treatments, and the effects the disease and treatments have had on Mr. Serna’s mental state, an award of $4.5 million for approximately two and one half years to three years of past pain and suffering, and $3 million for future pain and suffering for one and one half years is reasonable compensation.”
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