On March 16, 2023, the New York City Asbestos Litigation (NYCAL) Court denied Defendant Kaiser Gypsum’s post-trial motions following a $15M plaintiffs’ verdict in the matter of Munir Seen, New York Supreme Court, New York County, Index No. 190225/2018. Kaiser Gypsum moved for: 1) a judgment notwithstanding the verdict; 2) an order for a new trial; or, alternatively, 3) a remittitur of what Kaiser Gypsum called a clearly excessive verdict. All were denied.
The Honorable Suzanne J. Adams, J.S.C., issued the decision last month after presiding over the trial in July of 2022. The Plaintiff, Mr. Seen, was a drywall installer from 1967 to 1979 and claimed 43 months of pain and suffering prior to his death from mesothelioma. He identified 11 entities that he claimed contributed to his asbestos-related disease, including Kaiser Gypsum, who was the sole remaining defendant at trial. The jury awarded the Seen estate $15 Million for Mr. Seen’s pain and suffering prior to his passing, finding Kaiser Gypsum 70% liable.
Kaiser Gypsum’s post-trial motion touched on several key issues that often present themselves in NYCAL. First, Kaiser Gypsum argued that Plaintiffs’ experts’ proofs failed to establish causation. Next, it argued that a new trial was warranted because: 1) Mr. Seen’s video deposition testimony was improperly admitted for use at trial since Kaiser Gypsum was not a defendant at the time of the deposition; 2) Kaiser Gypsum was prejudiced by the Court’s preclusion of its cross-examination of Plaintiffs’ expert, Dr. Jaqueline Moline; and 3) Kaiser Gypsum was not given proper notice that Plaintiff’s counsel would be presenting a talc-contamination theory at trial. Finally, Kaiser Gypsum sought a remittitur of the $15 Million, arguing it was excessive and thus deviated from reasonable compensation.
Denying the motion, Judge Adams first addressed the causation argument, finding that Plaintiff’s proofs satisfied the causation standard as set forth by the Court of Appeals in Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006) (“It is well-established that an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)”) and Nemeth v. Brenntag North America, 38 N.Y.3d 336, 345-46 (2002) (reversing the lower court and entering summary judgment for defendant because plaintiff’s expert did not establish a correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused defendant’s lung cancer) and that no new trial was warranted. According to the Court, Dr. Moline satisfied the applicable causation standard by relying on studies reporting actual measurements from work with joint compound and was able to provide estimated numerical levels of exposure to joint compound for the tasks Mr. Seen performed during his career. The Court was likewise unimpressed with Kaiser Gypsum’s three arguments for a new trial, finding none of them convincing, and thus no new trial was warranted.
Finally, Judge Adams found that the jury’s $15 Million award for 43 months of pain and suffering (approximately $350,000 per month) was within the range of prior awards and thus did not materially deviate from what was reasonable. This monthly figure, which has often been used as an assessment of reasonableness for pain and suffering damage awards in New York, is slightly higher than previous awards from NYCAL juries that were thought by many defendants to set the top-range of a sustainable monthly award.
On March 24, 2023, Kaiser Gypsum filed its Notice of Appeal. A key factor on appeal will be an assessment of the reasonableness of the pain and suffering calculation.
A copy of the Court’s decision is available here.