In this NYCAL case, the plaintiff’s decedent, Charles Hillyer, allegedly developed mesothelioma from asbestos exposure during his work as a steamfitter between 1960 and 1983. At the time of trial, there were three remaining defendants: Burnham; Cleaver Brooks, Inc.; and William Powell Company. Cleaver Brooks settled during the trial and William Powell obtained a voluntary discontinuance from the plaintiff prior to jury deliberations. After trial, the jury rendered a verdict against Burnham in the amount of $20 million for past pain and suffering and allocated 30 percent liability to Burnham, 30 percent to Cleaver Brooks, and 40 percent to William Powell. The jury also found Burnham reckless in its failure to warn. Post-trial, Burnham made multiple arguments that it was entitled to a directed verdict or a new trial since (1) the plaintiff failed to prove Burnham’s failure to warn was a proximate cause of the plaintiff’s injury; (2) the reckless finding by the jury was not supported by the evidence; (3) the court’s instruction on recklessness was improper; (4) the plaintiff’s expert opinion was insufficient as a matter of law to establish specific causation; and (5) the jury’s allocation of fault was against the weight of the evidence. In the alternative, Burnham argued that the jury award exceeded what is reasonable. The court denied all of Burnham’s arguments, save for the excessive verdict amount, which it lowered to $6 million.
On the failure to warn/proximate cause issue, the court reviewed the record and stated: “After hearing arguments from both counsel and reading the relevant deposition testimony of the plaintiff in this action, and in light of the fact that plaintiff is deceased and not here and able to testify at trial, the court finds that there is enough testimony in the deposition transcript so that the issue of whether or not plaintiff would have heeded a [warning] should be an issue to be decided by the jury rather than by the court as a matter of law; and that the jury could make a reasonable inference from the testimony of the plaintiff that he would have heeded a [warning] if it had been provided to him.”
On the reckless issues, the court found there to be evidence upon which a jury could reasonably conclude that Burnham acted recklessly and held: “There was a rational basis for the jury to conclude that Burnham ‘has intentionally done an act of an unreasonable character in disregard of a known and obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.’ Moreover, there was evidence presented from which a jury could rationally conclude that Burnham could have warned workers such as plaintiff in the 1970’s that they were at risk when they were in the vicinity of the unjacketed boilers at the time that the asbestos cement was removed from the boilers” (citations omitted). The court also held the jury instruction on reckless was proper and stated: “Burnham has not cited any cases where a court has found that the language used in the pattern jury instruction to define recklessness has ever been overturned by any court as not articulating the proper standard despite the fact that this charge has been used in countless litigations, including numerous asbestos and non-asbestos cases, and despite the fact that the Maltese decision is from 1997, approximately eighteen years ago.”
The court found the plaintiff’s expert’s causation testimony to be proper and held: “The methods used by plaintiff’s expert at trial to establish that plaintiff was exposed to sufficient levels of asbestos from Burnham’s products for those products to have been a substantial contributing factor in causing plaintiff’s mesothelioma are generally accepted in the scientific community. Based on the testimony presented at trial, the expert sufficiently established that it is generally accepted in the scientific community that there is no safe level of exposure to asbestos, that even a low-dose exposure to asbestos can cause mesothelioma and that plaintiff was exposed to asbestos from Burnham boilers based on the release of visible dust when the insulation was removed. As the Court of Appeals made clear in Parker, ‘it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community.’”
The court also found there to be sufficient evidence for the jury to allocate 30 percent of fault to Burnham. However, on the verdict amount, the court reviewed recent NYCAL verdict awards that were upheld and found the $20 million verdict to be excessive. As the court held: “Based on all the circumstances of Mr. Hillyer’s injuries, the award of $20,000,000 for past pain and suffering deviates materially from what would be reasonable compensation. Pursuant to CPLR 5501 (c), the award for past pain and suffering is vacated and a new trial ordered on the issue of damages unless plaintiff within 30 days of service of a copy of this decision and order with notice of entry stipulates to reduce the award to $6 million.”
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