Alfred D'Ulisse and Margaret D'Ulisse, Plaintiffs, v. Amchen Products, Inc., et al., Defendants. (2007)

This was a personal injury action that as one of several actions joined together for trial, went to verdict.   The plaintiff, a husband and wife seek damages resulting from the plaintiff, Alfred D'Ulisse, contracting the fatal disease of mesothelioma from exposure to asbestos.   After nine weeks of trial, the jury awarded the plaintiffs a total of $25,000,000 in damages.

The damages portion of the verdict was broken down as follows:

Defendant Chrysler was one of five companies which the jury found liable for those damages.   The jury found that Daimler Chrysler's share of responsibility for the damages amounted to 10%.   However, the jury also found that defendant Daimler Chrysler acted “with reckless disregard for the safety of others.”   Under such a finding, CPLR 1602(7) instead, of being responsible for only 10% of the verdict, the defendant is liable for the full amount of the verdict.   It is that finding of recklessness as well as the size of the verdict that defendant Chrysler challenges.

 While Chrysler does not directly challenge the charge given by the Court on the issue of recklessness, it claims that the evidence to support such a claim was lacking.   Relying on Maltese v. Westinghouse Electric Corp., 89 N.Y.2d 955, 655 N.Y.S.2d 855, 678 N.E.2d 467 (1997) which held that general awareness of the risk of injury to persons exposed to asbestos without the opportunity to warn was insufficient to establish recklessness.   Defendant argues that the same rule applies to this plaintiff.

Defendant had to be aware of the danger that plaintiff was exposed to and to have had an opportunity to warn him.   Finding that the evidence did not support such a finding, Maltese set aside the finding of recklessness.   Therefore, an inquiry into the evidence about the extent of defendant Chrysler's knowledge of the danger that plaintiff was exposed to and the opportunity it had to warn the plaintiff needs to be undertaken.

The plaintiffs introduced a multitude of examples putting defendant on notice that persons, such as Alfred D'Ulisse, working with friction products were in harm's way.   Such was the ruling of Judge Robert Sweet in Asbestos Litig-Greff, 986 F.Supp. 761 (S.D.N.Y. 1997).   In applying the standard enunciated in Maltese v. Westinghouse, supra the Court upheld the jury's recklessness finding, holding that the defendant “knew of the dangers of asbestos and did not adequately protect or warn users, thereby acting in a wanton or reckless manner.”  986 F.Supp. 761, 768.   To the same effect is Hamilton v. Garlock, 96 F.Supp.2d 352 (2000).

There are abundant examples in the record of Chrysler's knowledge of the lethal nature of asbestos which it knew about, but, nevertheless, according to the record, failed to stamp a warning on its products.   For instance, in 1969 a Michigan Department of Public Health Report concluded that corrective action was needed at the defendant's brake manufacturing facilities to protect its workers from excessive release of asbestos fibers from its asbestos-contained products, numerous public reports such as the 1930 Merriwether and C.W.   Price Report of the effects of asbestos dust on the lungs in the asbestos industry, and the testimony of James Knoll, a Chrysler friction products engineer for 25 years, who was deposed in 1984 and testified about the dangers of excessive levels of dust when employees ground brakes in defendant's plants or by end user mechanics who ground brake parts before putting them into motor vehicles.   In the 1960's, Chrysler installed exhaust and ventilation systems for its own employees to protect them from the hazards of asbestos.   In the 1970's, Chrysler established threshold limits to asbestos exposure for its employees that were even lower than the federally mandated threshold limit values.   In 1970, Chrysler's supplier of raw materials advised that future shipments of our asbestos will bear the following notice on each bag “Caution, this bag contains chrysolite asbestos fiber.   Persons exposed to this material should use adequate protective devices as inhalation of the materials over long periods of time may be harmful.”   For its arc grinding apparatus, Chrysler installed ventilation equipment and required its employees to wear masks.   In June, 1973, the Chairman of the Friction Materials Standard Institute (“FMSI”), of which Chrysler was a member, emphasized that because of the use of friction products and the way they are handled, labeling of warnings was necessary.   With regard to friction products “operations ․ in the field could result in excessive exposure of workers or bystanders to airborne asbestos fibers.   I have been appalled to learn of the number of instances where this problem has occurred and some of the cases involved people that certainly might have expected to know better.”   There were many more instances of the defendant's knowledge of the hazards associated with asbestos products before and during the plaintiff's period of exposure testified to by Dr. Castleman, plaintiff's state-of-the-art expert.   Thus, there was sufficient evidence for a jury to reasonably conclude that Chrysler's conduct was in reckless disregard of the safety of persons like plaintiff who were engaged in the grinding and installation of friction products.

 Chrysler's second major point is that the amount of the award is so excessive as to shock the conscience.   In this era of large economic transactions and income to those toiling in the fields of finance, professional sports and entertainment, where large amounts of money being transacted dwarf the award here, the amount awarded plaintiff does not shock this Court's conscience.   Nevertheless, it is necessary to determine whether the money judgment is so excessive as to deviate materially from what would be reasonable compensation (Wendell v. Supermarkets General Corp., 189 A.D.2d 1063, 592 N.Y.S.2d 895 [3rd Dept. 1993] ).   This entails a comparison of plaintiff's injuries with the injuries of others in similar circumstances.   id. at 1065, 592 N.Y.S.2d 895.

Plaintiff was married to his wife Margaret for 51 years.   His testimony revealed a deep devotion to his family consisting of his wife, two children and grandchildren.   Before the mesothelioma symptoms surfaced, plaintiff testified that he was able to participate in such activities as baseball, handball, paddle ball and dancing, which he can no longer do.   With the onset of the symptoms, plaintiff developed a bad cough, fever, tremors and chest pains.   In December, 2004, plaintiff became a patient at Sloan-Kettering Hospital and had his entire left lung, along with a rib and part of his diaphragm removed.   The space resulting from the surgery was filled with gauze.   Plaintiff then received chemotherapy and testified that he lost feelings in his legs together with numbness of his thighs and toes.   He vomited and had insomnia resulting from the chemotherapy.   He had trouble breathing for which he was given oxygen.   He testified that he had pain from the incision and he felt as if his “whole stomach was ready to blow up.”   He agonized over his condition, wondering when the cancer would spread to his other lung.

Radiation treatment followed the chemotherapy.   He couldn't swallow and choked when he tried to eat.   His skin was so itchy and burnt red so that he couldn't put his clothes on.   Mr. D'Ulisse suffered from severe constipation and rectal bleeding.   He is despondent over his inability to care for his wife or to currently engage in sexual activities.   Plaintiff stated that “I am on death row for a crime I didn't commit.”   He states that he is aware that he is going to suffer a horrible death.

D'Ulisse's co-plaintiff wife, in addition to corroborating much of his testimony, testified to his assisting her with household chores and to the loss of sexual companionship.

In its brief, the defendant cited a number of mesothelioma plaintiffs whose judge-reduced awards ranged from $600,000 in the Matter of New York City Asbestos Litigation, 173 Misc.2d 121, 660 N.Y.S.2d 803 (Supreme Ct. N.Y. Cty. 1997) to $5.2 million in Falloon v. Westinghouse Electric Corporation, Index No. 108931/95 (Sup. Ct. N.Y. Cty. 1995).   However, the size of the verdict in the Matter of New York City Asbestos Litigation was reduced not because it was excessive, but because the defendant was only 50% liable.   So the amount of damages was actually $1.2 million.   In Falloon, the damages award was reduced from $14.6 million to $5.2 million.   In none of the cases cited by defendant in which the trial Court reduced the amount of the award was there either a finding of recklessness or was a finding of recklessness upheld.

The plaintiffs have submitted asbestos recoveries involving very substantial recoveries.   In Croteau v. AC & S, Index No. 118793/01 (Sup. Ct. N.Y. Cty.), the jury award was $43,100,000.   In Brown v. AC & S, Index No. 120595/00 (Sup. Ct. N.Y. Cty.), the Court awarded $53,000,000.   In Falloon, supra, before reduction, the award was $14.6 million before the Court reduced it.   In Consorti v. Armstrong World Industries, 1993 WL 1156122 (S.D.N.Y.).   The award was $18,000,000, although subsequently reduced to $5,000,000.

The defendant has asked to reduce the award of co-plaintiff Margaret D'Ulisse to between $100,000 and $200,000.   However, there is no discussion of why the award should be reduced from the $2.5 million awarded for past and $2.5 million for future pain and suffering, citing no cases in which awards were made for similar injuries.   Plaintiffs, on the other hand have cited Pescatore v. Pan Am., 97 F.3d 1 (2d Cir. 1996) which affirmed an award of $19,000,000 for loss of past and future services and society although approximately $5,000,000 was for accrued interest.   Plaintiffs also cite Harvey v. Mazal American Partners, 165 A.D.2d 242, 566 N.Y.S.2d 242 (1st Dept. 1991) rev'd on other grounds, 79 N.Y.2d 218, 581 N.Y.S.2d 639, 590 N.E.2d 224 (1992).   However, there the Court only affirmed a $900,000 loss of consortium award.

Determining what would be reasonable compensation is particularly difficult in this action.   Despite defendant's attempt to reduce the verdict to an arithmetic finding of pain and suffering per year, New York adheres to the totality of circumstances approach (Jones v. Simeone, 112 A.D.2d 772, 492 N.Y.S.2d 270 [4th Dept. 1985] ).   This entails a subjective evaluation of the severity and duration of the suffering and the apprehension of impending death, id.   In Juiditta v. Bethlehem Steel, 75 A.D.2d 126, 428 N.Y.S.2d 535 (4th Dept. 1980), the award of $70,000 for pain and suffering in 1980 where the fatally injured deceased lived for about one hour was affirmed.   How does the plaintiff's three years of current and continuing pain, suffering and anguish 27 years after Juiditta stack up against that?

 While knowledge of prior Court affirmances of jury verdicts is useful, so is the verdicts of juries in similar situations, who as a group, should most accurately reflect the collective wisdom of the community.   Accordingly, their verdict, absent the acts of a runaway jury, should be given great deference Santalucia v. County of Broome, 228 A.D.2d 895, 644 N.Y.S.2d 408 [3d Dept. 1996];  Matter of Michael RR, 188 Misc.2d 742, 729 N.Y.S.2d 575 especially where the losses are of such an intangible nature as pain and suffering (Reed v. City of New York, 304 A.D.2d 1, 7, 757 N.Y.S.2d 244, 248-49 [1st Dept. 2003] ).

In their submissions, both sides have failed to compare the awards of the cases they cite with the degree and length of the suffering of both defendants.   Given that failure, the Court in evaluating the length and degree of suffering, the evidence of Mr. D'Ulisse's health before the onset of the symptoms of the disease, the disease's symptoms, and the activities that he could no longer perform, the Court finds that the plaintiffs have cited a number of verdicts that this verdict does not deviate from.   It is also noted that the jury exercised great care in coming to this verdict.   This is brought home by the observation that in the companion case that was tried jointly before the same jury, the verdict was in favor of the defendant.   Thus, there is no basis to reduce the verdict in this case.

The Court has considered defendant's remaining arguments and finds them to be without merit.

Accordingly, it is

ORDERED that the prong of this motion to vacate the jury's finding of reckless disregard for the safety of others is denied, and it is further

ORDERED that the prong of this motion to order that the amount of the verdict should be reduced by the plaintiffs or the verdict on damages be set aside and a new trial ordered is denied.

Settle judgment.

LOUIS B. YORK, J.