IN RE: NEW YORK CITY ASBESTOS LITIGATION. (1998)

Judgments, Supreme Court, New York County (Karla Moskowitz, J.), entered September 8, 1997, to the extent appealed from, awarding the Ronsini plaintiff damages against Worthington Corporation and Atlas Turner, Inc., and awarding the Cardinal plaintiff damages against John Crane, Inc., and bringing up for review three separate orders, same court and Justice, entered on or about June 4, 1997, which, inter alia, denied defendants' motions to dismiss the complaints or, in the alternative, to set aside the verdicts and direct a new trial, unanimously affirmed, without costs.   Appeals from the aforesaid orders unanimously dismissed, without costs, as subsumed in the appeals from the judgments.   Plaintiffs' appeals, unanimously dismissed, without costs, as abandoned.

 In these consolidated actions to recover for mesothelioma caused by exposure to asbestos, viewing the evidence in the light most favorable to the prevailing plaintiffs (Elkins v. Ferencz, 253 A.D.2d 601, 677 N.Y.S.2d 342), we find that the evidence was sufficient for the jury to identify that defendant Worthington's product contained asbestos components that caused Mr. Ronsini's injury.   There was evidence that the specifications for the Worthington component required that it supply enough replacement parts for there to be Worthington components still in use at the time of Mr. Ronsini's exposure, and it was reasonable to infer that such parts had in fact been supplied and used.   It is therefore unnecessary to reach this defendant's argument that it is not responsible for replacement parts manufactured or supplied by others.   Nor was the jury's determination against the weight of the evidence (Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163).

 In the absence of any evidence of a conflict between State warning requirements and any Federal prescription of label information or proscription of a warning, there was no basis for Worthington's requested government contractor defense charge (see, In re “Agent Orange” Product Liability Litigation, 996 F.2d 1425, 1436, cert. denied sub nom. Hartman v. Diamond Shamrock Chemicals Co., 510 U.S. 1140, 114 S.Ct. 1125, 127 L.Ed.2d 434;  Russek v. Unisys Corp., 921 F.Supp. 1277, 1292).   Nor did this defendant carry its heavy burden of showing that the Navy's failure to warn Mr. Ronsini was so extraordinary and unforeseeable that it broke the chain of proximate causation (see, Pagowski v. Martinez, 197 A.D.2d 400, 602 N.Y.S.2d 376).

 The determination that Atlas Turner components contributed to Mr. Ronsini's injury was based upon sufficient evidence and a fair interpretation of the evidence.   In addition to Mr. Ronsini's testimony that he saw a 50-60 pound bag with the name “Atlas”, he testified that Atlas's cement insulation was the only such product that he remembers being used on board the ship where he worked and another seaman testified to similar effect, thus distinguishing the instant situation from those in which the person identifying the product did not see an open bag of the subject product or know that its contents had actually been used (cf., Cawein v. The Flintkote Co., 203 A.D.2d 105, 610 N.Y.S.2d 487;  Diel v. The Flintkote Co., 204 A.D.2d 53, 611 N.Y.S.2d 519;  see also, In re New York Asbestos Litigation, 212 A.D.2d 463, 622 N.Y.S.2d 946).   Assuming arguendo that the trial court erroneously excluded evidence tending to show the existence of similarly-named entities that may have produced asbestos components, any such error did not influence the verdict because this evidence would have been cumulative of testimony that Atlas Turner did not sell its insulating cement in this country and was prohibited by statute from doing so.

The jury determination that asbestos particles were released by Mr. Cardinal's work as a pipefitter also had a rational basis and was not against the weight of the evidence, inasmuch as the jury merely acted within its province in resolving conflicting testimony on this issue.

 Admission of the testimony of the late-noticed expert witnesses was not an improvident exercise of discretion in view of the failure to show that the failure to identify them was either willful or prejudicial (Flour City Architectural Metals v. Sky Lift Corp., 242 A.D.2d 471, 663 N.Y.S.2d 814).   Nor was there any error in preclusion of the settling defendants' interrogatories (see, State Univ. Constr. Fund v. Kipphut & Neuman Co., 159 A.D.2d 1003, 552 N.Y.S.2d 471).

The claimed verdict sheet error is unpreserved (Vavosa v. Stiles, 220 A.D.2d 363, 364, 632 N.Y.S.2d 791), and there was no evidence that the jury was confused by the charge on proximate cause (cf., Aragon v. A & L Refrig. Corp., 209 A.D.2d 268, 618 N.Y.S.2d 345), which we find to have been adequate.   The comments by plaintiff's counsel now complained of were either the subject of prompt and appropriate curative instructions (see, Mena v. New York City Tr. Auth., 238 A.D.2d 159, 160, 656 N.Y.S.2d 206) or unpreserved (see, Figueroa v. Maternity Infant Care Family Planning Project, 243 A.D.2d 424, 665 N.Y.S.2d 257, lv. denied 91 N.Y.2d 807, 669 N.Y.S.2d 260, 692 N.E.2d 129).

As to the challenge of defendant John Crane, Inc. to the apportionment of 30% liability against it, this defendant has not carried its burden of demonstrating the amounts of the equitable shares attributable to the settling defendants (see, Bigelow v. Acands, Inc., 196 A.D.2d 436, 601 N.Y.S.2d 478;  Zalinka v. Owens-Corning Fiberglass Corp., 221 A.D.2d 830, 831, 633 N.Y.S.2d 884), and we decline to disturb the jury's determination as to this, and as to the other, apportionments.   Under the circumstances, we find that none of the awards, as reduced by the trial court, deviate from what is reasonable compensation under the circumstances.

We have considered defendants' other contentions and find them to be unavailing.

MEMORANDUM DECISION.