Court: Supreme Court of New York, Appellate Division, First Department

In November 2023, a jury awarded plaintiff $15m for past pain and suffering and found defendant Kaiser Gypsum Company 70-percent liable. Kaiser subsequently filed post-trial motions, which were denied. The instant appeal followed.

First, on appeal Kaiser argued that the trial court should not have permitted plaintiff to admit the videotaped de bene esse deposition of plaintiff’s decedent Munir Seen into evidence because Kaiser was not a party to the action when that event occurred. The First Department, however, determined that Kaiser was able to depose Seen after it was impleded as a third-party defendant and had a full opportunity to cross-examine him on the contents of his de bene esse testimony, as well as any other relevant subjects.

Additionally, the First Department found that Seen’s testimony — in which he noted he worked with dry mix joint compound in large bags marked “Kaiser” almost every day, coupled with corporate documentation concerning asbestos-containing formulas for those products — was sufficient evidence that Seen was exposed to asbestos via Kaiser products. The First Department further determined that there was sufficient evidence to support the jury’s finding to specific causation as plaintiff’s experts, in reliance on historical data and studies, calculated Seen’s total exposure and opined that Kaiser’s products were a proximate cause of his mesothelioma. Moreover, the First Department also concluded that evidence was not improperly admitted regarding that the drywall formula, in addition to containing asbestos as part of its formula, was contaminated by asbestos from the use of industrial talc, because plaintiff’s CPLR 3101(d) expert exchange specifically stated that there would be testimony about asbestos contaminated talc and annexed various studies and articles concerning the same.

Regarding damages, however, the First Department found that the $15 million awarded for pain and suffering deviated materially from what would be reasonable compensation. Thus, the First Department directed a new trial on damages, unless plaintiff stipulated to reduce the award to $10 million. The First Department also remanded the matter to the trial court to fashion a judgment in accordance with General Obligations Law, instructing the court to deduct from the total award all settlements received by defendants not appearing on the verdict sheet, and then to offset that amount by either the sum of the one settled defendant that appeared on the verdict sheet, or by the 30-percent share attributed it to the jury, whichever is greater.

Read the full decision here.