IN RE: EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Lynn M. Stock (plaintiff) and her husband, James G. Stock (decedent), commenced this action seeking damages for injuries sustained by decedent as a result of his exposure to asbestos. Following a trial, the jury returned a verdict finding, inter alia, that decedent was exposed to asbestos products made by Jenkins Bros. (defendant), that defendant failed to exercise reasonable care by not providing a warning about the hazards of exposure to asbestos with respect to its products, and that its failure to warn was a substantial contributing factor in causing decedent's injuries. Defendant appeals and plaintiff cross-appeals from an order denying their respective motions pursuant to CPLR 4404 to set aside various aspects of the jury verdict. We note, initially, that decedent passed away during the pendency of this appeal, and plaintiff has been substituted as the executrix of his estate.

Contrary to defendant's contention on its appeal, the evidence is legally sufficient to establish that asbestos in products it manufactured was a substantial factor in causing or contributing to decedent's injuries (see Dominick v. Charles Millar & Son Co. [Appeal No. 2], 149 A.D.3d 1554, 1555, 51 N.Y.S.3d 455 [4th Dept. 2017], lv denied 30 N.Y.3d 907, 2017 WL 6378430 [2017]). There is a valid line of reasoning and permissible inferences that could lead rational persons to the conclusion reached by the jury based upon the evidence presented at trial (see generally Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978]; Doolittle v. Nixon Peabody LLP, 155 A.D.3d 1652, 1654, 65 N.Y.S.3d 370 [4th Dept. 2017]). Although, to prove specific causation, plaintiff and decedent were required to establish that decedent “was exposed to sufficient levels of the toxin to cause” his alleged injuries, “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship” (Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006], rearg denied 8 N.Y.3d 828, 828 N.Y.S.2d 289, 861 N.E.2d 104 [2007]; see Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801, 808-809, 28 N.Y.S.3d 656, 48 N.E.3d 937 [2016]). There simply “must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of [the] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” (Sean R., 26 N.Y.3d at 809, 28 N.Y.S.3d 656, 48 N.E.3d 937 [internal quotation marks omitted]; see Dominick, 149 A.D.3d at 1555, 51 N.Y.S.3d 455). Such evidence may include an expert's use of estimates generated by mathematical models taking a plaintiff's work history into account, or the use of “more qualitative means” to determine the level of a plaintiff's exposure, such as comparing the plaintiff's exposure level “to the exposure levels of subjects of other studies” (Parker, 7 N.Y.3d at 449, 824 N.Y.S.2d 584, 857 N.E.2d 1114).

Here, decedent testified at trial that, while performing work involving component parts of defendant's products, i.e., gaskets and packing, he was exposed to visible asbestos dust on a routine basis. In addition, his expert opined that, based in part on her review of studies of workers involved in tasks similar to those performed by decedent, decedent's exposure to such visible dust was a substantial contributing factor to the development of his mesothelioma. Contrary to defendant's contention, the expert's opinion, considered along with the rest of her testimony, was sufficient to establish specific causation (see Dominick, 149 A.D.3d at 1555-1556, 51 N.Y.S.3d 455; Matter of New York City Asbestos Litig., 143 A.D.3d 483, 484, 39 N.Y.S.3d 411 [1st Dept. 2016], lv dismissed 28 N.Y.3d 1165, 49 N.Y.S.3d 93, 71 N.E.3d 586 [2017], rearg denied 29 N.Y.3d 992, 53 N.Y.S.3d 610, 75 N.E.3d 1171 [2017]; Penn v. Amchem Prods., 85 A.D.3d 475, 476, 925 N.Y.S.2d 28 [1st Dept. 2011]). We reject defendant's contention that the Court of Appeals' decision in Matter of New York City Asbestos Litig., 32 N.Y.3d 1116, 91 N.Y.S.3d 784, 116 N.E.3d 75 [2018] compels a different result under the facts of this case, and we similarly reject defendant's contention that Supreme Court misapplied the applicable law. Thus, we reject defendant's contention that it is entitled to a new trial.

Finally, we also reject plaintiff's contention on her cross appeal that the court erred in failing to list her loss of decedent's future household services as a separate itemized question on the jury verdict sheet. Contrary to plaintiff's contention, the verdict sheet provided a line item for future “loss of [decedent's] services and society,” and the court properly charged the jury regarding that item of damages and was not required to distinguish between loss of services and loss of society as two separate items of damages (see PJI 2:315).