Konstantin v. 630 Third Avenue Associates
121 A.D.3d 230
| N.Y. App. Div. | 2014Background
- Two mesothelioma plaintiffs (Konstantin and Dummitt) were tried together after consolidation of a cluster of asbestos cases; Konstantin alleged exposure at construction sites (drywall joint compound) and Dummitt alleged exposure on Navy ships (valve gaskets, packing, lagging).
- Konstantin worked near drywall subcontractors (1973–1977); exposed to asbestos-containing premixed joint compound; TLC was general contractor alleged to have supervised the sites and failed to protect workers.
- Dummitt was a Navy boiler technician (1960–1977) exposed during replacement/maintenance of asbestos-containing gaskets, packing and insulation used with Crane valves; Crane supplied valve drawings, lobbied for asbestos components, and rebranded third-party asbestos parts as its own.
- Juries found TLC 76% liable in Konstantin (large pain-and-suffering awards, later remitted by trial court and accepted) and Crane 99% liable in Dummitt (damages also remitted and entered).
- On appeal, defendants challenged consolidation, allocation of fault, recklessness findings, duty to warn (Crane), and damages/remittitur; the appellate court affirmed both judgments and dismissed the consolidation-order appeal as subsumed where appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consolidation of Konstantin and Dummitt was proper | Both cases share common medical, state-of-the-art, and exposure-mode evidence; consolidation conserves resources | TLC: different workplaces, exposures, diseases, illnesses stage and legal theories would prejudice defendants | Affirmed consolidation—Malcolm factors applied flexibly; common issues predominated and jury managed distinctions; no substantial prejudice shown |
| Whether TLC was properly apportioned majority fault for Konstantin | TLC supervised sites, knew asbestos dangers, failed to protect by controlling subcontractor work; as bystander Konstantin relied on site control | TLC: did not manufacture/supply joint compound; other sources (e.g., Bendix brakes) could account for exposure | Verdict upheld—plaintiff presented evidence of TLC’s control/knowledge; defendant failed to show nonparty liability; allocation not against weight of evidence |
| Whether Crane had a duty to warn about asbestos in third-party components used with its valves | Crane influenced Navy specs, provided detailed drawings, promoted/rebranded asbestos components (Cranite); thus had sufficient role to owe a warning duty | Crane: did not manufacture/place asbestos parts in stream of commerce; Rastelli and similar precedent absolve duty absent control/role in components | Duty and liability upheld—evidence showed Crane’s significant role in specifying and promoting asbestos components, distinguishing Rastelli-type cases |
| Whether jury instructions and exclusion of Admiral Sargent’s testimony on causation were erroneous and prejudicial (Dummitt) | Plaintiffs: evidence showed Dummitt would have heeded warnings; presumption or foreseeability instruction appropriate in context | Crane: court erred by instructing a presumption that warnings would have been heeded and by excluding Navy-practices testimony showing warnings would have been blocked | Majority: charge and evidentiary rulings did not warrant reversal—causation supported and excluded testimony would not change outcome; Dissent: presumption and exclusion were reversible error and would warrant new trial on causation |
Key Cases Cited
- Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir.) (guidelines for consolidating asbestos cases)
- Matter of New York City Asbestos Litig., 82 N.Y.2d 821 (Court of Appeals) (addressing consolidation and management of large asbestos dockets)
- Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289 (Court of Appeals) (no duty to warn about a third party’s product absent control/role)
- Boyle v. United Technologies Corp., 487 U.S. 500 (U.S. Supreme Court) (government-contractor defense framework)
- In re Joint E. & S. Dist. N.Y. Asbestos Litig. (Grispo), 897 F.2d 626 (2d Cir.) (military specifications and limits on warnings arguments)
- Berkowitz v. A.C. & S., Inc., 288 A.D.2d 148 (1st Dept) (manufacturer’s knowledge of likely asbestos insulation on Navy equipment supports failure-to-warn claim)
- Rogers v. Sears, Roebuck & Co., 268 A.D.2d 245 (1st Dept) (duty to warn can extend where product cannot be used without third-party item)