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

In this asbestos action, defendant Jenkins Bros. sought a judgment notwithstanding the verdict, a new trial, or remittitur of a verdict awarding plaintiff $13 million for past pain and suffering and $10 million for future pain and suffering. The trial court declined to vacate the jury’s findings that valve-related gaskets and insulation manufactured by Jenkins Bros. caused plaintiff’s mesothelioma. Jenkins Bros. appealed to the First Department.

The First Department ultimately determined that plaintiff met his “burden to establish sufficient exposure to a substance to cause the claimed health effect.” Nemeth v. Brenntag N. Am., NY3d 366, 343 [2022]. Specifically, plaintiff testified about tasks involving Jenkins Bros.’ products that he frequently performed while working as a steamfitter. Plaintiff also presented “expert testimony based on generally accepted methodologies” via three experts: an industrial hygienist, an epidemiologist, and a thoracic surgeon.

Moreover, the First Department noted that the trial court providently exercised its discretion in admitting a video of “Tyndall lighting,” which involves bright lights in a small chamber with black walls. Plaintiff’s industrial hygienist had used this video as a visual aid to illuminate asbestos fibers in the air, and not as a basis or substitute for quantifying asbestos exposure based on scientific studies. The court also deemed this video relevant so as to rebut the defense that asbestos in gaskets was enclosed in metal, preventing asbestos fibers from being released in the air.

Furthermore, the First Department determined that Jenkins Bros. failed to preserve its challenge to a jury charge, as counsel affirmatively waived any objection to part of the charge in a charge conference and did not otherwise raise the same arguments raised on appeal in the conference. The First Department also noted that Jenkins Bros. failed to preserve its argument that the jury might have overheard the court’s comments during a sidebar, in the absence of a timely objection, as counsel waited until the next day to raise an argument about the issue. 

Finally, the First Department found that most of Jenkins Bros’ challenges to summations by the plaintiff’s counsel were unpreserved. However, certain comments made by plaintiff’s counsel suggesting that the jury “represented the voices of this community” and that damages proposed by counsel for Jenkins Bros. “made a mockery of the legal system” were preserved. Despite that, the First Department found that “any improprieties in the summation were not so egregious or pervasive as to warrant reversal, in light of the strength of plaintiff’s case.”

For all of these reasons, the First Department concluded that the trial court properly declined to dismiss plaintiff’s claim for future pain and suffering, and that the jury’s award of damages for past and future suffering did not “deviate materially from what would be reasonable compensation.” Thus, the First Department affirmed the jury’s findings, without costs.

Read the full decision here.